State of New Hampshire v. Dennis Reed

1. Did the Trial Court err in finding that a “father figure” can be a position of authority under RSA 632-a:2?

Preserved by Defendant’s Motion in limine Regarding Defendant’s Request to Disallow “Father Figure” to be Used as Position of Authority. See Appendix p. 3.

2. Did the Trial Court err in finding that a “religious leader” with no defined position, role, or responsibilities can be a position of authority under RSA 632-a:2?

Preserved by Defendant’s Motion in Limine #2 Regarding Political and Religious Beliefs. See Appendix p. 12.

3. Was there sufficient evidence provided to support a finding that the Defendant was in a position of authority as a father figure to E.L.?

Preserved by Defendant’s Motion in limine Regarding Defendant’s Request to Disallow “Father Figure” to be Used as Position of Authority. See Appendix p. 3. See Oral Motion for Judgment of Acquittal, Tr. 1547.

4. Was there sufficient evidence provided to support a finding that the Defendant was in a position of authority as a “religious leader” to E.L.”

Preserved by Defendant’s Motion in Limine #2 Regarding Political and Religious Beliefs. See Appendix p. 12. See Oral Motion for Judgment of Acquittal, Tr. 1547

5. Did the Trial Court err in allowing the admission of evidence concerning sexual conduct, alleged to have occurred in Manchester, outside the jurisdiction of the Trial Court?

Preserved by Defendant’s Motion In Limine Regarding Allegations of Criminal Conduct Pending in Another Jurisdiction, Appendix p. 27.

RSA 632-A:2, 1 (k) A person is guilty of the felony of aggravated felonious sexual assault if such person engages in sexual penetration with another person under any of the following circumstances:

k) When, except as between legally married spouses, the victim is 13 years of age or older and under 18 years of age and the actor is in a position of authority over the victim and uses this authority to coerce the victim to submit.

(This section of the statute was substantially amended by Laws, 2020, c. 24:13, 14, eff. Sep. 18, 2020, and c. 25:12, eff. Jan. 1, 2021)

Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes ...

(b) Other Crimes, Wrongs, or Acts.

(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

(2) Evidence of other crimes, wrongs or acts is admissible under this subsection only if: (A) it is relevant for a purpose other than proving the person's character or disposition; (B) there is clear proof, meaning that there is sufficient evidence to support a finding by the fact- finder that the other crimes, wrongs or acts occurred and that the person committed them; and (C) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

Until 2018, Dennis Reed owned and operated SportsZone, an indoor sports complex, in Derry, New Hampshire. Tr. 819, 1202. During this time, Reed was a basketball coach at several places around New Hampshire, including high schools, through the Amateur Athletic Union (“AAU”), and as a provider of private lessons through Sports zone. Tr. 345, 251. Reed allegedly met E.L. when she was nine (9) years old at an AAU tryout. Tr. 335. Over the next many years, E.L. spent a lot of time with Reed and Reed’s wife, Carole. Tr. 768. E.L. began calling Reed “Dad, ” and attended his church with him and his family. Tr. 398, 343. E.L. and Reed exchanged emails and spoke on the phone about their personal and professional lives, including their faith. Tr. 456, 702, 725, 911, 912. Reed never resided at E.L.’s home. Tr. 1088- 1089. He did not have control over her schooling, extracurricular activities, medical decisions, relationships with others, or any other aspect of her personal or educational life. Tr. 946. Although the exact timeline is disputed, at some point, Reed and E.L. began a consensual sexual relationship that lasted until E.L. was in her mid-twenties 1. Tr. 780, 918-20. Tufts alleges that the first instance of sexual contact was when she was fifteen (15), while Reed asserts that the first instance was after E.L. was sixteen (16). Tr. 960, 169-70. While E.L. and Reed had a sexual relationship, E.L. would occasionally date other men, which she would discuss with Reed. Tr. 779, 914. During her relationships with other men, she would stop the physical aspect of her relationship with Reed, but they would continue to see each other in their personal relationship and through SportsZone. Tr. 648, 915.

E.L. began dating Benjamin Tufts, her future husband, in 2014, at which point she permanently stopped her sexual relationship with Reed. Tr. 776.

The State charged Mr. Reed in 10 indictments alleging Aggravated Felonious Sexual Assault- Aggravated Circumstance- Position of Authority, occurring between July 23, 2005 and July 22, 2007; one indictment alleging Aggravated Felonious Sexual Assault – Pattern occurring between July 23, 2005 and July 22, 2007; eight Class A Misdemeanors alleging Sexual Assault between July 23, 2005 and July 22, 2007 and three Class A Misdemeanors alleging sexual Assault occurring between July 23, 2004 and July 22, 2005. Before trial, the Rockingham County Superior Court (Daniel St. Hilaire, J.) held hearings and ruled on motions in Limine.

The matter was tried by a jury over twelve (12) days in February 2023. Denying Reed’s Motion in Limine, the trial court allowed the State to introduce testimony from E.L. alleging that the first sexual contact she had with Reed was when Reed digitally penetrated her in Manchester when she was fifteen years old. This conduct was not a charged act for which Reed was on trial, and the timing of the alleged event was disputed. Denying Reed’s Motion in Limine, the State was allowed to argue that Reed’s role as a “father figure” to E.L. put him in a position of authority over E.L. Denying Reed’s Motion in Limine, the State was allowed to argue that Reed’s role as a “religious leader” put him in a position of authority over her. The jury returned a mixed verdict finding Mr. Reed guilty on nine indictments alleging Aggravated Felonious Sexual Assault, and eight charges of misdemeanor Sexual Assault. He was found not guilty on one indictment alleging Aggravated felonious Sexual Assault. He was also found not guilty on three misdemeanor charges of Sexual Assault all of which were alleged to have occurred before E.L.’s sixteenth birthday. The Aggravated Felonious Sexual Assault – Pattern charge was dismissed at the close of the State’s case. The Defendant was not convicted of any charges alleged to have occurred before E.L.’s sixteenth birthday. The Defendant filed a timely notice of appeal to this Court.

The trial court erroneously permitted the State to present evidence and to argue that the Defendant was a father figure and a religious leader which amounted to positions of authority under RSA 632-A:2, I (k). In prior cases, the Court has found a position of authority to exist when the defendant has some formal role, office, or appointment. Unlike those cases, here, there is no evidence that the Defendant had such a formal role or appointment. Therefore, it was error for the Court to allow the state to permeate the case with evidence and arguments that the Defendant was a “father figure” or a religious leader. Because the evidence did not establish that the Defendant held a formal position of authority the evidence was insufficient for a jury to convict him on each charge. The Court erred in admitting evidence of an allegation of sexual misconduct by the Defendant that was not charged in this case. The allegation was unnecessary to the case and was not inextricably intertwined in such a manner that admission of the claim was necessary. Moreover, the allegation does not meet the standard required by New Hampshire Rule of Evidence 404(b) for other bad act evidence.

Accordingly, the Defendant requests this Court to reverse his convictions.

The leading New Hampshire case discussing the meaning of “position of authority” is State v. Cossette, 151 N.H. 355 (2004.) Cossette considered an allegation of sexual assault by an assistant manager against a subservient employee. Here, the trial court permitted, over the objection of the Defendant, the introduction of evidence and argument that the Defendant was a “father figure” and a “religious leader” to establish that he held a “position of authority.” The trial court permitted this theory to permeate the trial despite the fact that the Defendant held no formal or official “position of authority.”

Although the statute does not define “position of authority, ” the Supreme Court has “previously construed the term ‘authority’ to mean: ‘power to require and receive submission: the right to expect obedience: superiority derived from a status that carries with it the right to command and give final decisions.’” State v. Cossette, 151 N.H. 355, 359 (2004) (citing State v. Fortier, 146 N.H. 784, 794 (2001)).

In Cossette the Court held that an assistant manager of a restaurant, who told employees what to do and how to do those things, was in a position of authority over the victim, who was an employee of the restaurant. Cossette, 151 N.H. at 360 (“We conclude that the defendant’s role as the assistant manager of Subway, and the victim’s subservient role as an employee of the restaurant, gave the defendant the power to require submission from her, as well as the right to expect obedience… He alone determined, for example, when she could take breaks.”). In this matter, the Defendant’s role as a man E.L. called “dad” did not endow him with the power to require submission or the right to accept obedience. E.L. acknowledged this fact in her testimony. She recognized that the Defendant had no legal authority over her, no authority or power to discipline her, no authority to sign her in and out of school and no authority to obtain medical care for her. See Tr. at 946. E.L. testified that her fear was that if she upset the Defendant, that he would no longer be in her life. Tr. at 572. That is part of the human reality of having a relationship with someone. The Defendant leaving E.L.’s life would not have caused the same turmoil as she testified that she went through when her parents got divorced. Tr. at 324- 27. There would be no legal drama, no court hearings or attorneys fees or emotionally distraught parents. She would not be “forced” to see the Defendant like she had to have parenting time with her father. Id. If the Defendant stopped their relationship, it would be the same as the ending of any relationship that is non-parental. E.L.’s fear of losing the relationship had nothing to do with any formal role or position of the Defendant.

Moreover, the Defendant did not hold a position of authority over E.L. close to or in any way resembling the relationship in Cossette. This Court has also held that a priest was in a position of authority over two victims who were altar servers under the priest’s direction. Fortier, 146 N.H. at 794. The victims were obligated to assist the defendant “by performing various tasks during Mass.” Id. This Court held that a rational jury could have found that the defendant was in a position of authority over the victims based on both his position as supervisor to their roles as altar servers as well as his role as their personal religious leader. Id. at 795. In this case, the Defendant’s role as a “father figure” to E.L. did not resemble that of the role the defendant had with the victims in Fortier. Nor was he a formal religious leader. See Tr. at 944.

Although State v. Foss applied a different part of the RSA 632-A: 2 statute, the defendant, a correctional officer, was in a position of authority over the alleged victim, an inmate over whom the defendant has supervisory authority. State v. Foss, 148 N.H. 209, 214-15 (2002). In this matter, the Defendant did not have a position of authority over E.L. resembling anything like a correctional officer over an inmate.

Although State v. Collins applied an older version of the statute, the defendant, a psychometrist hired by the Derry School District, was found to be in a position of authority over the victim, a student in the Derry School District who worked with the defendant on her learning disabilities. State v. Collins, 129 N.H. 488, 489-90 (1987). The common thread running through the “position of authority” cases in New Hampshire is that the defendant held a “position” – whether it be assistant manager, parish priest, correctional officer; teacher/school employee. This common thread does not apply to one who has no position but is merely a “figure.” The authority - that is the “power to require and receive submission: the right to expect obedience: superiority derived from a status that carries with it the right to command and give final decisions” derives from the position held. State v. Fortier, 146 N.H. 784, 794 (2001) (citing State v. Carter, 140 N.H. 114, 116 (1995)). The focus of the analysis must be on the right and the power of the defendant and the superiority that adheres to the position held. When separated from a formal position and applied to one who is a mere “figure” the reach of the statue becomes overbroad and would encompass virtually any sexual assault where the actor exercises any authority or power even if it is divorced from any formal position. In other words, every forcible sexual assault would become an assault by one in a position of authority even if the superiority in the relationship stems solely from overmatched physical strength. Likewise, given the Cossette definition of “position of authority” it does not make sense to analyze the authority relationship from the victim’s viewpoint. Whether an actor has a position that imbues authority – the right to command and give final decisions - must be viewed from an objective analysis of the position and not the subjective view of the alleged victim2. “Father figure” is not a formal position. The term itself is ambiguous and may include a broad range of relationships including someone who is merely a good friend. Religious leader may indeed be a position of authority if the actor is a pastor, priest, or holds some other formal position in a church or religious order. But merely attending church, discussing religion and sharing books and articles about religion does not make the Defendant a religious leader. The dangers inherent in labeling a “father figure” as someone who holds a “position of authority” are not limited to the ambiguity of the term “father figure.” “Father figure” especially when used in a sexual context is a term loaded with connotation and cultural significance. The perception of a "father figure, " although fluid and ambiguous, intertwines with deep-seated beliefs about trust and morality. When an individual identified (however ambiguously) as a "father figure" is accused of sexual assault, the sense of betrayal is profound. Indeed, a perfectly legal consensual sexual relationship between an older person and a much younger person is often looked at as morally repugnant in our society.

In other states, a position of authority in sexual assault cases has been applied to clear cut examples of authority (such as teacher/student) and not vague, subjective, and undefined roles like “father figure” or “religious leader.”

In Rhode Island, defendants were found to be in positions of authority in sexual assault cases when they were: a police officer (State v. Burke, 522 A.2d 725, 734-35 (R.I. 1987)), a parent’s live-in boyfriend (State v. Watkins, 92 A.3d 172, 177 (R.I. 2014)), and a step-parent (State v. Brown, 626 A.2d 228, 235 (R.I. 1993); State v. Brigham, 638 A.2d 1043, 1046 (R.I. 1994).

In Vermont, defendants were found to be in a position of authority in sexual assault cases when they were: a teacher at a residential school for girls with special needs (State v. Nelson, 246 A.3d 937, 940 (Vt. 2020)), and a paraeducator and high school program assistant (State v. Graham, 147 A.3d 639, 641 (Vt. 2016)).

In Massachusetts, the courts identify a defendant holding a position of authority in sexual assault cases when they were: the biological father of the victim (Commonwealth v. King, 445 Mass. 217, 233 (Mass. 2005); Commonwealth v. Raagas, 977 N.E.2d 106 (Mass. App. Ct. 2012)), a doctor (Commonwealth v. Mamay, 407 Mass. 412, 416-17 (Mass. 1990)), a caretaker who provided overnight childcare for the child victim (Commonwealth v. Sevilla, 99 Mass. App. Ct. 1124 (Mass. App. Ct. 2021)), and babysitter (Commonwealth v. Miozza, 67 Mass. App. Ct. 567, 572 (Mass. App. Ct. 2006)).

The Defendant’s relationship as a theoretical “father figure” to E.L. did not create a relationship resembling anything like that of student and school employee, employee and employer, priest and altar server, or even parent and child. E.L. acknowledged the lack of any formal position. See Tr. at 946.

In order to create a relationship in which someone has a position of authority by being a “father figure” that person would have to have some formal authority in the alleged victim’s life. Examples from other cases in New Hampshire include: 1) the defendant residing with the victim and her mother, acting as step-father (State v. Mclellan, 146 N.H. 108 (2001)); 2) the defendant actually being the victim’s father (State v. Marti, 140 N.H. 692, 693-94 (1996)); 3) the defendant marrying the victim’s mother and being an official step-parent (State v. Abram, 153 N.H. 619, 624 (2006)); 4) the defendant residing with his girlfriend and her children, who were his victims, and acting as the “head of the household” (State v. Chase, 135 N.H. 209, 211 (1991)).

In this case, the Defendant never resided with E.L. He never had any means to withhold privileges or expect obedience. As an older man who cared for her, the title “father figure” may vaguely be applied colloquially, but the fact that he was an older male in her life does not endow him with special powers that are given to teachers, priests, employers, and other positions that have inherent authority.

(a) There Is Insufficient Evidence for a Rational Juror to Find that the Defendant was a “Father Figure” with Authority over E.L.

“To succeed on a sufficiency of the evidence claim, a defendant ‘must show that, viewing the evidence in the light most favorable to the State, no rational trier of fact could have found guilt beyond a reasonable doubt.” State v. Fortier, 794 (citing State v. Carter, 140 N.H. 114, 116 (1995)). All reasonable inferences derived from the evidence are drawn in the light most favorable to the State. State v. Collins, 129 N.H. 488, 489 (1987). “Because a challenge to the sufficiency of the evidence raises a claim of legal error, [the Supreme Court’s] standard of review is de novo.” State v. Kay, 162 N.H. 237, 243 (2011). As noted above the term “father figure” does not amount to a position of authority. It is a theoretical term that is ambiguous. Because the term “father figure” does not constitute a formal or official position of authority, the evidence was insufficient for the jury to find that the Defendant was in a position of authority.

As a “father figure, ” the Defendant was referred to by E.L. as “dad, ” and spoke to her about her interests and gave advice. People receive advice and maintain close relationships with many people in their lives including those who have a formal or official position of authority like parents, spiritual leaders, and teachers. However merely being a friend or even someone from who advice is sought does not rise to the level of a position of authority necessary to establish criminal liability. Giving advice is not determinative of being in a position of authority. There is tremendous animus in the general public for incest, as evidenced by the laws of most, if not every state, in this country. See e.g. RSA 639:2. The idea that the Defendant acted as a father, and used that relationship to sexually assault E.L., unfairly prejudiced him in the eyes of the jury. Further, it was error to allow the State to make the argument that his position endowed him with authority as he maintained no position of authority over E.L. The same argument holds true with respect to the State’s arguments that the Defendant was a “religious leader.” In fact, the State failed to prove that the Defendant held any formal role in the Lifeway Church. He was not the pastor. He did not have an office or other position within the hierarchy of the church. This Court has held that a priest was in a position of authority over two victims who were altar servers under the priest’s direction. State v. Fortier, 146 N.H. at 794. The victims were obligated to assist the defendant “by performing various tasks during Mass.” Id. This Court held that a rational jury could have found that the defendant was in a position of authority over the victims based on both his position as supervisor to their roles as altar servers as well as his role as their personal religious leader. Id. at 795. In this case, the Defendant’s role as a “religious leader” to E.L. did not resemble that of the role the defendant had with the victims in Fortier.

In this matter, the Defendant was not endowed with the power to require submission or the right to accept obedience from E.L. If E.L. did not obey the defendant’s requests, he had no power or ability to punish her by limiting her role in the church. This includes any connection E.L. had with the Defendant regarding faith, religion, and spirituality. The Defendant invited E.L. to attend the same church as him, gave her religious literature, and prayed with her. He was not responsible for leading mass or any spiritual ritual that E.L. would attend. He held no employment as a priest, pastor or otherwise. He did not live in a rectory, receive income for providing religious or spiritual services, and had no following for any publications on faith. It is clear that the Defendant did not hold a position of authority over E.L. close to or anyway resembling the relationship in Fortier.

In State v. Flodin the defendant was a “spiritual services coordinator” at the Strafford County House of Correction, which is a clear position of authority as he “hosted and facilitated group and individual meetings with inmates, including conducting Bible studies, marriage seminars, and programs on forgiveness and anger management.” State v. Flodin, 159 N.H. 358, 359-60 (2009). Further, the fact that the people with whom the defendant worked were inmates lends another layer of authority that the Defendant in the instant matter did not have. Id. The Defendant hosted no seminars, classes or lectures on faith that E.L. was expected or required to attend. He had no spiritual or religious training or education. He was not contracted to meet with anyone to offer them spiritual guidance, advice, or similar. Under all reasonable definitions, he was not a religious leader at his church or to E.L. The Defendant invited her to the church he attended and transported her to the church to be baptized. The Defendant was not E.L.’s pastor or priest. The Defendant was not paid by the church, was not employed in any capacity by the church, and taught no classes, seminars, or otherwise on religion or spiritual teachings. There is tremendous animus in the general public for people who abuse their position as a religious leader to prey on victims. The label “religious leader” used by the State was not a position of authority. Yet the trial court permitted the term to be argued by the state as a position of authority. This was error.

(b) There Is Insufficient Evidence for a Rational Juror to Find that the Defendant was a “Religious Leader” with Authority over E.L.

“To succeed on a sufficiency of the evidence claim, a defendant ‘must show that, viewing the evidence in the light most favorable to the State, no rational trier of fact could have found guilt beyond a reasonable doubt.” State v. Fortier, 794 (citing State v. Carter, 140 N.H. 114, 116 (1995)). All reasonable inferences derived from the evidence are drawn in the light most favorable to the State. State v. Collins, 129 N.H. 488, 489 (1987). In State v. Fortier, the defendant was a priest convicted of FSA under RSA 632-A:2(III) (pattern of sexual abuse against boys in parish); not the same charge alleged here. Further, this case is markedly different from Fortier. In Fortier, the defendant was a priest of a parish and his position of authority was proved by the parties’ parish relationships, the defendant in his role and the children as altar servers who would stay at the rectory with the defendant

Here, as with the “father figure” claim, there is simply no evidence that Reed held a position of authority as a spiritual leader. He was not a pastor, priest or official of the church. He conducted no sacraments or rituals. He did not preach to the congregation and he was not responsible for scheduling services or other events at the Church. He was merely a fellow parishioner. The evidence was insufficient to support his convictions for abusing a “position of authority.”

II. The Trial Court Erred in Admitting Evidence of Uncharged Sexual Conduct

E.L. alleged that the Defendant digitally penetrated her in a car in Manchester when she was roughly 15 and a half. Tr. P. 875-76. Defendant filed a Motion in Limine to exclude the evidence of the alleged Manchester conduct on or about May 10, 2022, to which the State objected. Defendant argued that the evidence was inadmissible under New Hampshire Rules of Evidence 403 and 404(b). The State argued that that Rule 404(b) did not apply as the evidence is inextricably intertwined with the charged conduct. The legal test applied in deciding the admissibility of “similar acts evidence” depends on whether the evidence at issue is “intrinsic” or “extrinsic.” State v. Dion, 164 N.H. 544, 551 (2013). Rule 404(b) excludes only extrinsic evidence, meaning “evidence of other crimes, wrongs, or acts – whose probative value exclusively depends upon a forbidden inference of criminal propensity.” United States v. Epstein, 426 F.3d 431, 439 (1st Cir. 2005). “‘Other act’ evidence is ‘intrinsic, ’ and therefore not subject to Rule 404(b), when the evidence of the other act and the evidence of the crime charged are ‘inextricably intertwined’ or both acts are part of a ‘single criminal episode’ or the other acts were ‘necessary preliminaries’ to the crime charged.” State v. Wells, 166 N.H. 73, 77 (2014). “‘Intrinsic’ or ‘inextricably intertwined’ evidence will have a causal, temporal, or spatial connection with the charged crime.” Id. (citing United States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000)) “Typically, such evidence is a prelude to the charged offense, is directly probative of the charged offense, arises from the same events as the charged offense, forms an integral part of a witness’s testimony, or completes the story of the charged offense.” Hardy, 228 F.3d at 748.

Evidence is not intrinsic where “it is a completely separate and distinct offense that is not essential for providing a coherent and intelligible description of the charged offense.” United States v. Clay, 667 F.3d 689, 698 (6th Cir. 2012) (quotation omitted). The standard of review is that the trial court’s ruling on the admissibility of evidence is whether the ruling was an unsustainable exercise of discretion. State v. Nightingale, 160 N.H. 569, 573 (2010).

Although New Hampshire’s Supreme Court has not ruled on an issue exactly like the instant matter, the Court has noted the danger of allowing too much information into evidence through the intrinsic evidence exception to Rule 404(b): In analyzing the applicability of the intrinsic evidence exception to Rule 404(b), we must remain mindful of the purpose of Rule 404(b), which is to "ensure that the defendant is tried on the merits of the crime as charged and to prevent a conviction based upon evidence of other crimes or wrongs." State v. Beltran, 153 N.H. 643, 647, 904 A.2d 709 (2006). The intrinsic evidence exception "cannot serve as a backdoor to circumvent" this purpose. Gibbs, 797 F.3d at 423 (quotation omitted); see also State v. Crosby, 142 N.H. 134, 138, 697 A.2d 1377 (1997) ("The State may not employ a trial strategy of introducing evidence which itself creates the necessity for admitting bad acts evidence.").

State v. Papillon, 173 N.H. 13, 28 (2020).

The Court utilized the rulings of other state’s courts to decide this issue. Interim Order on Def.’s Mot. In Limine Regarding Allegations of Criminal Conduct Pending in Another Jurisdiction at 3 (“However, while the New Hampshire Supreme Court has yet to rule on a case like the one at bar, courts in other jurisdictions have held that when a case involved multiple instances of assault or abuse, the continuous nature of the offense allows evidence of the full pattern to be admitted so that the State may present a complete story.”). Academic literature has documented five (5) broad categories of other crimes, wrongs, or acts evidence that has been found to be admissible under the inextricably intertwined doctrine federally. See Jennifer Y. Schuster, Uncharged Misconduct Under Rule 404(b): The Admissibility of Inextricably Intertwined Evidence, 42 U. Miami L. Rev. 947, 961-62 (1988). These include: (1) uncharged misconduct that was a “necessary preliminary step toward completing the crime charged, ” (2) uncharged misconduct that is “directly probative of the crime charged, ” (3) uncharged misconduct that arises from the “same transaction or transactions as the crime charged, ” (4) uncharged misconduct that forms “an integral part of a particular witness’ testimony concerning the crime charged, ” and (5) uncharged misconduct that “complete[s] the story of the crime charged.” Id. at 962.

One case in Iowa recently summarized the academic literature on this doctrine and noted the issues with it: “Although the inextricably intertwined doctrine has gained widespread acceptance, it has also become the target of intense scholarly criticism…for two principal reasons. First, the phrasing ‘inextricably intertwined’ is extremely vague and amorphous. Critics argue this vagueness has allowed courts to engage in results-oriented decision-making and invites abuse…Second, critics claim courts have abused the doctrine by applying it in an overly broad manner...‘In case after case, the courts have invoked the doctrine even though, on careful scrutiny, the testimony about the charged and uncharged offenses could readily have been separated.’” State v. Nelson, 791 N.W.2d 414, 422-23 (Iowa 2010). “Of all the different categories of inextricably intertwined evidence, none has received as harsh criticism as evidence found to be admissible because it completes the story of the crime charged. Evidence that completes the story of the crime charged is admissible under the inextricably intertwined doctrine simply to put the crime charged into context, provide background, and generally explain or set up the charged crime. Thus, to complete the story of the crime, the other crimes, wrongs, or acts evidence need only pertain, in some fashion, to the chain of events explaining the context, background, or set-up of the crime charged. Critics argue almost any uncharged conduct could meet this lax test. Moreover, at least one commentator has warned that this category of inextricably intertwined evidence poses the greatest threat of eviscerating [Rule 404(b)] and has led to the admission of other crimes, wrongs, or acts evidence that is neither closely related to the charged crime nor necessary to prove it.” Nelson, 791 N.W.2d at 422-23 (citations omitted).

After reviewing the undeniable academic literature that highlights the dangers of the inextricably intertwined doctrine, the Iowa Supreme Court held that it “will only allow such evidence to complete the story of what happened when the other crimes, wrongs, or acts evidence is so closely related in time and place and so intimately connected to the crime charged that it forms a continuous transaction.” Nelson, 791 N.W.2d at 423. The Court further held that it “will only allow the admission of other crimes, wrongs, or acts evidence to complete the story of the charged crime when a court cannot sever this evidence from the narrative of the charged crime without leaving the narrative unintelligible, incomprehensible, confusing, or misleading.” Nelson, 791 N.W.2d at 423.

In the Nelson case, the Iowa court held that “omitting evidence of the plastic bags, empty digital scale box, and the testimony linking these items to crack-drug dealing would not have left the narrative of this crime unintelligible, incomprehensible, confusing or misleading” and therefore held that it was inadmissible evidence. Nelson, 791 N.W.2d at 424. Iowa decided this issue based on the academic research and literature and utilized well- reasoned arguments. Id. In this case, there is no argument that the Defendant’s alleged digital penetration was a continuous transaction with the other allegations of sexual assault. There is no argument that the omission of this evidence would leave the narrative incomprehensible or misleading. The Trial Court in this case relied on the extremely vague argument that the evidence must be admitted “so that the State may present a complete story.” Interim Order on Def.’s Mot. In Limine Regarding Allegations of Criminal Conduct Pending in Another Jurisdiction at 3.

Further, the admission of this evidence in fact led to uncertain and confusing testimony as there was debate about when this event occurred. E.L. testified that she believed the digital penetration occurred when she was under sixteen (16) years old, after the Defendant picked her up from Memorial High School to take her to SportsZone. E.L. testified that she called the Defendant on her cell phone outside of the school to see where he would pick her up. Tr. P. 871- 872. E.L.’s mother and sister were questioned about when E.L. got a cell phone in an effort to show that E.L. was over 16 during this alleged event. E.L.’s mother testified that E.L. got a cell phone when she was a sophomore in high school, when she would have been 16. Tr. P. 1050-51. E.L.’s sister testified that E.L. got a cell phone when she was a freshman, when she would have been 15. Tr. P. 1114. Instead of eliciting testimony and evidence about the charged offenses, much of E.L.’s mother’s and sister’s testimony was focused on whether this alleged, uncharged other wrongs allegation occurred before or after E.L. was sixteen. The Trial Court’s denial of the Defendant’s Motion in Limine on this issue meant that the Defendant had to spend copious time questioning multiple witnesses on the timing of an uncharged event. If she were under the age of consent, the uncharged incident could become two (2) wrong acts instead of one (1). That meant the focus of the jury was on an event for which the Defendant was not on trial.

New Hampshire Supreme Court does not have settled law on this issue. It is clear that a broad interpretation of the inextricably intertwined doctrine leads to unjust admissions of evidence. See Schuster, 42 U. Miami L. Rev 947.

If the evidence is not admissible under the inextricably intertwined doctrine, then it is subject to Rule 404(b) analysis. Rule 404(b) is a rule of exclusion. CITE. “The public policy for excluding other crimes, wrongs, or acts evidence is not that the evidence is irrelevant. Rather, the public policy for excluding such evidence is based on the premise that a jury will tend to give other crimes, wrongs, or acts evidence excessive weight and belief that a jury should not convict a person based on his or her previous misdeeds. Nelson, 791 N.W.2d at 425 (citing State v. Sullivan, 679 N.W.2d 19, 24 (Iowa 2004)).

This evidence has no purpose other than to demonstrate the Defendant’s alleged previous misdeeds in order to taint him in the eyes of the jury. This evidence should not have been admitted under the inextricably intertwined doctrine and should not have been admitted under Rule 404(b).

“The decision to admit ‘bad acts’ evidence lies within the trial court’s sound discretion and will be overturned only if the defendant can show that the decision was clearly untenable or unreasonable to the prejudice of his case.” State v. McGlew, 139 N.H. 505, 507 (1995) (citing State v. Whittaker, 138 N.H. 524, 526-27 (1994)). The court’s decision to allow in the uncharged allegation of sexual conduct in Manchester was both untenable and unreasonable to the prejudice of the Defendant’s case. Allowing in this information permitted the jury to hear lengthy testimony regarding E.L.’s age at the time of the uncharged event. She was insistent she was under sixteen (16), that allegation likely prejudiced the jury against the Defendant despite the fact that the allegations were not part of the charges against him and the age of the complainant at the time of the uncharged allegation was greatly disputed.

Although New Hampshire still does not have extensive law on this issue, since the Defendant’s trial in early 2023, a new Supreme Court opinion was issued which provides additional insight into how the Supreme Court views this issue. State v. Rouleau, 2024 N.H. 2 (2024). The Court stated that it was “not persuaded that excluding [the uncharged conduct] would render the victim’s testimony regarding the charged crimes unintelligible or create a vacuum in the story.” Id. at 6 (citing Papillon, 173 N.H. at 26). The same is true in the instant matter. If the testimony regarding the car ride in Manchester was not proffered by E.L., the remainder of E.L.’s testimony regarding the actual charged crimes would not have been unintelligible, nor would a vacuum in the story have been created. The admission of E.L.’s testimony on the uncharged conduct was not intrinsic to the crimes charged, was more prejudicial than probative, and did nothing but cause juror confusion and prejudice the Defendant.

The trial court allowed the State to infect the trial with claims that the Mr. Reed was a father figure an d religious leader thereby imbuing him with a position of authority. In fact he was not in a position of authority. The trial court should have limited the evidence and granted the Defendant’s motion for judgment of acquittal. Further the trial court erred in allowing substantial unfairly damaging and unnecessary testimony regarding allegations of sexual misconduct that were not charged in this case. The Court must vacate the convictions or alternatively reverse the judgement of the trial court.