State v. Kirsch

662 A.2d 937 (1995)

Quick Summary

David W. Kirsch (defendant) faced charges for sexually assaulting young girls he met through church activities. The prosecution introduced testimony about other uncharged sexual assaults to establish Kirsch’s pattern of behavior.

The issue before the Supreme Court of New Hampshire revolved around whether such evidence was admissible under Rule 404(b). The court concluded that this evidence was not admissible as it demonstrated propensity rather than motive or intent and reversed Kirsch’s convictions.

Facts of the Case

David W. Kirsch (defendant) was brought to trial on charges of sexually assaulting three young girls during the mid-1980s. His connection with the victims arose from his role in leading church groups for pre-teens, driving the church bus, and organizing sleepovers at the church and his home. The prosecution aimed to introduce testimony from other girls who had also been molested by Kirsch, although these incidents were not part of the current charges.

The evidence presented was intended to demonstrate Kirsch’s pattern of selecting vulnerable young girls from unstable family backgrounds and seducing them under the guise of being a father figure. The trial court permitted this testimony, finding it relevant to establish motive, intent, and a common plan. Kirsch was convicted on six counts related to one victim, Karen G., but appealed the decision, challenging the admissibility of the other acts evidence and the denial of his motion for a mistrial.

Procedural Posture and History

  1. David W. Kirsch was charged with sexual assault against three young girls and was convicted in Superior Court.
  2. Kirsch filed motions to suppress evidence and to exclude testimony about other sexual assaults not charged in the case, which were denied by the trial court.
  3. The trial court admitted evidence under Rule 404(b) to show motive, intent, and a common plan, which was a key point of contention in the appeal.
  4. Kirsch appealed his convictions, contesting the suppression motion denial, the admission of other sexual assault evidence, and the denial of a mistrial motion.

I.R.A.C. Format


Whether the trial court erred in admitting evidence of other uncharged sexual assaults under Rule 404(b) to prove motive, intent, and common plan in David W. Kirsch’s trial.

Rule of Law

The admissibility of other crimes, wrongs, or acts is governed by Rule 404(b), which prohibits their use to prove a person’s character or propensity to commit a crime but allows for their admission for other purposes such as motive, intent, or plan.

Reasoning and Analysis

The Supreme Court of New Hampshire analyzed the admissibility of evidence concerning Kirsch’s historical acts and emphasized that such evidence is permissible only if it serves a relevant purpose beyond demonstrating the defendant’s propensity to commit the crime. Specifically, the evidence must directly relate to an issue in dispute and be connected to a legitimate evidentiary purpose articulated by the prosecution.

The State argued that the uncharged sexual assaults demonstrated his motive in selecting victims and his intent to commit the crimes. However, the Supreme Court found this reasoning flawed because it essentially equated to proving Kirsch’s propensity for sexual assault rather than a specific motive or intent for the crimes charged.

The court also rejected the argument that these prior acts were part of a common plan or scheme, as they were not constituent parts of an overarching plot but rather repetitive instances of similar conduct.

Ultimately, the court determined that admitting such evidence was an abuse of discretion because it was not relevant for any permissible purpose under Rule 404(b) and should be excluded. The court did not conduct a harmless error analysis because the State did not argue that any error was harmless beyond a reasonable doubt.


The Supreme Court of New Hampshire reversed and remanded Kirsch’s convictions due to the erroneous admission of evidence regarding other uncharged sexual assaults that were not relevant for any permissible purpose under Rule 404(b).

Dissenting Opinions

Justice Thayer, with whom Justice Horton joined, dissented in part from the majority opinion. They argued that under Rule 404(b), the evidence of Kirsch’s previous bad acts did show a common plan and were thus relevant. They contended that the majority’s interpretation was too restrictive and that even if each crime was planned similarly, there was an overall scheme in Kirsch’s actions through his position to sexually assault young girls.

Key Takeaways

  1. Evidence of other bad acts is not admissible to prove a defendant’s character or ‘propensity’ under Rule 404(b).
  2. Other bad acts may be admissible for relevant purposes such as establishing motive or intent if they directly relate to issues in dispute and do not merely show propensity.
  3. The Supreme Court of New Hampshire requires a clear connection between the evidentiary purpose and the other bad acts for their admission in court.

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