Wednesday, December 4, 2013

State v. Kirsch case brief

State v. Kirsch case brief summary
662 A.2d 937 (1995)

Defendant appealed his convictions, after a jury trial in Superior Court, Rockingham County (New Hampshire) of aggravated felonious sexual assault, N.H. Rev. Stat. Ann. § 632-A:2(1986), and felonious sexual assault, N.H. Rev. Stat. Ann. § 632-A:3 (1986). He claimed the trial court erred in denying his motion to suppress evidence, in admitting evidence of other sexual assaults under N.H. R. Evid. 404(b), and in denying his motion for a mistrial.

Defendant was tried on 13 indictments charging sexual assaults on young girls over a three-year period. He was convicted on six indictments involving the same victim. Prior to the trial he was unsuccessful in his motion to suppress evidence taken from his residence, claiming that the information was stale and there was no probable cause for the search warrant. Two young women who were assaulted by defendant years earlier had given the information to the police. At the trial testimony was admitted regarding other uncharged instances of sexual assault. The trial court permitted the testimony on the basis that the testimony proved motive, intent, and a plan. Defendant appealed and the court reversed and remanded.


  • The court held that there was probable cause even given the lengthy lapse in time between the assaults and the issuance of the search warrant because of the nature of the crime of child molestation and the proclivity for a child molester to retain child pornography and similar materials. 
  • The trial court erred in permitting the testimony about other bad acts. 
  • The testimony did not prove motive, intent, or a plan, but instead went to defendant's propensity to assault young girls.

The court reversed and remanded defendant's convictions of aggravated felonious sexual assault and felonious sexual assault. The trial court erred in permitting testimony from three young women about other uncharged crimes committed against them by defendant.

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