State v. Christina Thomas

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Strafford
No. 2013-0489

THE STATE OF NEW HAMPSHIRE

v.

CHRISTINA THOMAS

Argued: September 10, 2015
Opinion Issued: February 23, 2016

Joseph A. Foster, attorney general (Lisa L. Wolford, assistant attorney
general, on the brief and orally), for the State.

Thomas Barnard, senior assistant appellate defender, of Concord, on the
brief and orally, for the defendant.

LYNN, J. The defendant, Christina Thomas, appeals her conviction,
following a jury trial in Superior Court (Lewis, J.), of first degree assault for
knowingly causing serious bodily injury to a person under 13 years of age. See
RSA 631:1, I(d) (2007). She argues that the trial court erred by: (1) admitting
evidence of “other bad acts” committed against the victim and the victim’s
mother; and (2) not striking other testimony that she contends was
inadmissible and prejudicial. We affirm.
 I

The pertinent facts are as follows. In 2002, the defendant reconnected
with E.A., a childhood friend. Shortly thereafter, E.A. moved in with the
defendant and her family. In August 2003, E.A. gave birth to D.A. and
continued residing with the defendant, who promised to help take care of the
child. E.A. and D.A. lived with the defendant until 2010, when D.A. was
removed from the home and E.A. left. During that time, several other
individuals lived in the home, including the defendant’s husband, the
defendant’s boyfriend, her six children, and several friends and acquaintances.
E.A. and D.A. also spent time at the home of the defendant’s mother, Peggy
Starr.

When E.A. first moved in, she got along well with the defendant. Over
time, and specifically after D.A. was born, the relationship deteriorated. After
giving birth, E.A. weighed close to 400 pounds and was told by a doctor that
she needed to lose weight. The defendant promised to help in this endeavor,
and the two went on a diet and exercised together. Eventually, the defendant
stopped being supportive and instead used forced exercise and the denial of
food to punish E.A. E.A. had to run up stairs in the home; if she did not, or if
she did not do so quickly enough, the defendant would hit her or not allow her
to eat. E.A. would also be deprived of food if she did not complete chores that
the defendant asked her to do. E.A. lost a significant amount of weight during
this time, and ultimately weighed approximately 130 pounds when she left the
home.

During this time, E.A. began to steal food, which prompted the defendant
to lock the cabinets and refrigerator. The other adults and children in the
home would report to the defendant if E.A. had eaten food without the
defendant’s permission. If she was caught, the defendant would hit her. E.A.
was not allowed inside the house if the defendant was not home and was
required to wait outside, regardless of the weather. For a period of time, she
could not use the bathroom in the house or sit on the furniture, and the
defendant often took away E.A.’s mattress, pillow, and blankets. Sometimes
when E.A. did something “wrong,” the defendant put her in “timeout” and made
her stand in the corner. The defendant also exercised control over E.A.’s
money. E.A. received Social Security benefits (for which the defendant was the
representative payee), food stamps, Temporary Assistance for Needy Families
(TANF), and Women, Infants, and Children (WIC) benefits. The money and
benefits were pooled for use by the household. Because E.A. had lost her
driver’s license, the defendant provided transportation for her and D.A. Starr
also abused E.A. She or the defendant would beat E.A. for not running up the
stairs, taking food, lying, not doing chores, or being obstinate or disobedient.

D.A. received similar treatment. He was hit or spanked, often with a
board or a spatula, which left a scar on his leg. Purportedly to keep him from

2
getting into things, D.A. was put in his crib with a piece of Sheetrock over it,
tied to a bunk bed with a leash, or kept in a dog crate in the basement or an
outdoor dog kennel, sometimes for hours at a time. The dog crate was also
used for punishment. If D.A. soiled himself, he was washed with cold water,
including one time during the winter when he was placed in a stream outdoors.
On other occasions, he was placed in a snowbank or left outside on the porch
in a trash bag. Nearly everyone in the household used racial slurs to refer to
D.A.

E.A. participated in the abuse of her son. At the direction of the
defendant or Starr, E.A. would hit D.A. with her hands or a spatula, put him in
the dog crate, or tie him to the bed. If E.A. did not do as she was directed, she
was beaten. Other than doing as she was told by the defendant or Starr, E.A.
had little interaction with D.A. At first, this was by choice, but eventually she
was not allowed to have contact with him. If E.A. did something for D.A.
without the defendant’s or Starr’s permission, such as trying to feed him, both
E.A. and D.A. were hit. The defendant acted as D.A.’s primary caretaker and
held herself out to others as his guardian. D.A. called the defendant “mom”
and addressed E.A. by her name.

For the first year of his life, D.A. was fed formula and grew normally.
Around the time he turned two years old, D.A. began “ruminating,” meaning he
would regurgitate food into his mouth, chew it, and swallow it again. He would
also vomit food out of his mouth. These behaviors occurred almost every time
he ate, at least several times per day. He also began eating such things as
diesel fuel, his own feces, or animal feces. The defendant, who had assumed
primary responsibility for feeding D.A., tried feeding him different foods to stop
the ruminating and vomiting, but the problem continued. D.A.’s behaviors,
particularly his ruminating, disgusted everyone at the house. The defendant
believed that the behavior was intentional and began punishing D.A. for it, by
hitting him or withholding food, occasionally for days at a time. D.A. was
constantly hungry, but would not be fed if he screamed for food or cried about
being hungry.

The defendant closely controlled what D.A. was fed. She told others in
the house to ignore him when he cried or screamed for food. When D.A. began
attending school in the fall of 2008, the defendant insisted that the school not
provide D.A. with any food. She told school personnel that D.A. had “eating
issues” and intimated that he had dietary restrictions, such as lactose or
gluten intolerance. D.A. was always hungry and was fixated on food. The
school attempted to arrange a consultation with a nutritionist, but the
defendant did not allow it. The defendant would send D.A. to school with food,
usually a peanut butter sandwich on gluten-free bread and carrot sticks, or
tofu and vegetables. The defendant also told the school that D.A.’s ruminating
was “learned behavior” and “voluntary,” and requested that the teacher or

3
paraprofessional take away part of his snack every time he ruminated,
misbehaved, or cried. School personnel went along with the defendant’s
request at first, but eventually stopped. In response to having his food taken
away at school, D.A. started eating his lunch on the bus before school. When
this happened, the school would provide him with another lunch, even though
the defendant insisted that D.A. not be given additional food so that he would
“learn his lesson.” Because her instructions were not followed, the defendant
removed D.A. from school in or around December 2009.

D.A. barely grew or gained weight. In June 2004, when he was 10
months old, he was 29 inches tall and weighed 23 pounds, 2 ounces. Two
years later, when D.A. was almost three years old, he was 35 inches tall and
weighed 22 pounds. In March 2008, when he was four and one half years old,
D.A. was 35 1/2 inches tall and weighed 22 pounds. The average height for a
child that age is 42 inches, and the average weight is 40-45 pounds. Later that
year he weighed less than 22 pounds. In April 2010, when he was about six
and one half years old, D.A. weighed 23 pounds, six ounces — only four ounces
more than he weighed when he was 10 months old. He was also
developmentally delayed.

The New Hampshire Division for Children, Youth and Families (DCYF)
received several reports of neglect and abuse of D.A. or E.A. between 2003 and
2010, but all were determined either to be unfounded or to not warrant
investigation; no further action was taken until 2010, when D.A. was removed
from the defendant’s home and placed in DCYF custody. One report was made
in February 2008 by a WIC employee who was concerned that D.A. was losing
weight. The employee also contacted D.A.’s primary care physician, Dr.
Christo, at Portsmouth Family Practice. An employee of DCYF then met with
D.A., E.A., and the defendant. The defendant told DCYF that D.A. had an
upcoming appointment with Christo.

D.A. had been seen at Portsmouth Family Practice in June 2006 by a
physician’s assistant, who, concerned with D.A.’s height and weight, requested
blood work and scheduled a follow-up appointment for a few weeks later. The
defendant did not bring D.A. to the laboratory for the blood work or keep the
follow-up appointment. D.A. did not return until March 2008, following the
meeting with WIC and DCYF. The defendant told Christo that D.A. ate “very
well” and did not mention his vomiting. Unable to determine a cause for D.A.’s
failure to grow, Christo referred D.A. to a pediatric endocrinologist. In May and
June of 2008, D.A. was seen by an endocrinologist and a gastroenterologist at
Dartmouth-Hitchcock Medical Center, who were also unable to discover the
cause of D.A.’s “failure to thrive,” that is, his failure to grow. Following his
June appointment, the doctors requested that D.A. return in four weeks;
however, the defendant did not bring him back until November.

4
 After further tests and an endoscopy revealed no abnormalities, D.A. was
admitted to Dartmouth-Hitchcock and held for observation for about four days
in September 2009. He was evaluated by a number of specialists, fed through
a feeding tube, and allowed to eat on his own. The doctors could not determine
a physical or psychological reason for D.A.’s failure to thrive. D.A. gained three
or four pounds during the few days that he was at the hospital and was
discharged with instructions that he “should continue to receive regular meals
and snacks. He should not be restricted from eating. If he continues to
ruminate, . . . this is not related to an illness, and he should be fed whenever
he is hungry and at regular mealtimes.”

D.A. was next seen at Boston Children’s Hospital in December 2009. For
the first time, the defendant reported that D.A. “had severe behavioral issues,”
and Christo sought psychiatric referrals. Eventually, D.A. was admitted to
Maine Medical Center in April 2010 and saw Dr. Ricci, a board certified child
abuse pediatrician. The defendant told Ricci that D.A. was “suffering from
some kind of psychiatric disorder” or “rumination disorder,” had a number of
food allergies, and was unable to eat several kinds of foods. Ricci observed that
D.A. had no problem eating and that he had scars from an inflicted injury,
which indicated physical abuse. Ricci was also concerned by Starr’s treatment
of and attitude toward D.A., and by the defendant’s insistence that D.A. be
discharged from the hospital.

Ricci concluded that D.A. had been starved as well as psychologically
and physically tortured by his caregivers. He diagnosed D.A. with
environmental “failure to thrive,” which means the failure to gain weight or
grow, and with “psychosocial dwarfism,” which is a secondary diagnosis
present in some cases of failure to thrive in which the child is psychologically
neglected or abused in addition to being underfed. D.A.’s failure to gain height,
in addition to his failure to gain weight, and the fact that he grew substantially
after being fed, indicated that he suffered from psychosocial dwarfism in
addition to failure to thrive. Ricci testified that rumination itself could not be
enough to cause D.A.’s failure to thrive, and that psychosocial dwarfism is not
associated with simply the deprivation of enough food. In his 30 years of
experience, D.A.’s case “was the most profound, chronic, long-term case of
failure to thrive that [Ricci had] ever seen in a child who was still alive.” Ricci
testified that “this type of starvation over a period of several years has both
short term and long term[] adverse effects on children’s development,” and had
the starving continued, D.A. “could have died.” Ricci opined that doctors who
had previously examined D.A. had failed to properly diagnose D.A. because, as
doctors are trained to do, they accepted the history provided by the defendant
as true; namely, that D.A. had behavioral issues and food allergies or
sensitivities.

Ricci prohibited the defendant and Starr from having access to D.A.
During his two-week hospitalization, D.A. was fed through a tube, then put on

5
a regular diet; he gained eight pounds. He demonstrated no allergies or
intolerances to foods, did not vomit or ruminate, and did not display any
behavioral issues. When Ricci last saw D.A. in October 2010, he had gained 23
pounds and grown five and one half inches. By February 2013, D.A. had
gained another eight pounds and grown over a foot.

II

The defendant was indicted on one count of first degree assault. The
indictment alleged that the defendant “did knowingly cause serious bodily
injury to D.A. [then age 8], by failing to provide proper nutrition to D.A.,
causing ‘failure to thrive’ to D.A., and [the defendant] did owe a duty of care to
D.A. as she was D.A.’s acting primary caretaker.”

Prior to trial, the State moved to admit evidence of uncharged bad acts
the defendant committed against D.A. and E.A, see N.H. R. Ev. 404(b), and
proffered numerous instances of abuse, as detailed above. The State argued
that evidence pertaining to E.A., who would be a key witness at trial, was
necessary for the purpose of assessing her credibility. The State also argued
that evidence of the power dynamic between E.A. and the defendant was
relevant to show why E.A. allowed the defendant to be D.A.’s primary
caretaker, and why E.A. “did not intervene on the child’s behalf, report the
abuse to the police, and/or simply leave the residence.” During the motion
hearing, the State further argued that the abuse of E.A. was inextricably
intertwined with the abuse of D.A.

Noting that it had the burden to prove that the defendant acted
knowingly in failing to provide D.A. with proper nutrition, the State argued that
the evidence of bad acts against D.A. other than the deprivation of food was
“relevant to and probative of [the defendant’s] intent toward the child,” and,
therefore, relevant to her intent with respect to the charged crime. The State
contended that the defendant’s intent would be “the central issue at trial”
because she “was taking D.A. to doctors at the same time she was depriving
him of food.” Without evidence of the defendant’s physical and emotional
abuse of D.A., the State argued, “the jury would likely come to the conclusion
that the Defendant was doing everything she could to help the child and that
the child’s physical condition was due to a misunderstanding.” To support its
argument, the State pointed to the assertion made in one of the defendant’s
pleadings that she “did everything in her power to take care of the child.” The
State also argued that the significant probative value of evidence of uncharged
acts against both E.A. and D.A. was not substantially outweighed by the
danger of unfair prejudice.

The defendant objected, citing Rule 404(b). Although she conceded that
evidence pertaining to uncharged bad acts directed against E.A. was relevant,
she argued that the evidence pertaining to uncharged acts against D.A. was not

6
relevant because “[c]onduct not relating to the alleged deprivation of food is not
. . . relevant to whether or not the defendant was ‘aware her conduct of failing
to provide proper nutrition to D.A. would result in serious bodily injury to
D.A.’, or that it was her intent to cause such injury.” For evidence relating to
both E.A. and D.A., the defendant argued that the probative value was “not of
such significance as to outweigh the terrible prejudice that would be done to
the defendant.”

After the hearing, the trial court granted the State’s motion. The court
found that evidence of acts against D.A. other than the withholding of food was
relevant to the defendant’s mental state because “if [the defendant] was
otherwise mistreating the child, that . . . is relevant to what was going on in
[the defendant’s] head in connection with . . . nutritional deprivation.” The
court stated that its reason for admitting evidence of acts against D.A. was for
the State to prove the “knowing prong” of its case. The court found evidence
pertaining to E.A. relevant because the alleged bad acts “involve[d] the boy and
the nutritional needs,” and identified the “knowing prong” and credibility
issues as the reasons the evidence was admitted. Although the evidence was
prejudicial, the court found that it was “extremely probative.” The court stated:
“[I]t’s impossible . . . for this case to be tried fairly to [the] State, which is where
my focus has to be, without dealing with . . . all these events . . . which are
inextricably related to one another. It’s not possible to really try this case
sensibly without getting into it all.”

After a 12-day trial, the defendant was convicted and sentenced. This
appeal followed.

III

On appeal, the defendant argues that the trial court erred by admitting
evidence of uncharged bad acts against E.A. and D.A. because: (1) the acts
were not “inextricably intertwined” with the charged crime; (2) the acts against
D.A. were not relevant to show her intent or motive; and (3) the danger of
unfair prejudice substantially outweighed the probative value of the acts.

A

First, we conclude that it is unnecessary for us to determine whether the
other acts at issue were “inextricably intertwined” with the charged crime. We
have distinguished between “extrinsic” evidence of other crimes, wrongs, or
acts, which is governed by Rule 404(b), and “intrinsic” evidence, which is not.
See State v. Wells, 166 N.H. 73, 77 (2014). “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.” Id. (quotations omitted). Although the

7
trial court stated that the events the State sought to admit were “inextricably
related to one another,” the court nonetheless engaged in a Rule 404(b)
analysis. This demonstrates that the court did not consider the evidence to be
intrinsic. In light of the trial court’s treatment of the evidence, we will assume
that it is extrinsic to the charged crime and analyze its admissibility under
Rule 404(b).

Such an analysis is more beneficial to the defendant because, although
intrinsic evidence must meet the balancing test of Rule 403, id. at 79; N.H. R.
Ev. 403, evidence governed by Rule 404(b) must meet the same balancing test
as well as the other prongs of a Rule 404(b) analysis, see State v. Roy, 167 N.H.
276, 287-88 (2015) (listing the three prongs of the Rule 404(b) test and noting
that the third prong “involves the same analysis as that conducted pursuant to
Rule 403”). We turn, then, to Rule 404(b) and the defendant’s remaining
arguments.

B

Rule 404(b) provides:

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.

N.H. R. Ev. 404(b). “The purpose of the rule is to ensure that an accused is
tried on the merits of the crime charged and to prevent a conviction that is
based upon propensity and character inferences drawn from evidence of other
crimes or wrongs.” State v. Addison (Capital Murder), 165 N.H. 381, 463
(2013).

Before admitting evidence under Rule 404(b), a trial court “must first
determine: (1) that the evidence is relevant for a purpose other than character
or disposition; (2) that there is clear proof that the defendant committed the
prior act; and (3) that the probative value of the evidence is not substantially
outweighed by the danger of unfair prejudice to the defendant.” Roy, 167 N.H.
at 287 (quotation omitted). “The State bears the burden of demonstrating the
admissibility of prior bad acts.” State v. Beltran, 153 N.H. 643, 647 (2006).
“We review the trial court’s ruling for an unsustainable exercise of discretion,
and will reverse only if it was clearly untenable or unreasonable to the
prejudice of the defendant’s case.” Id. Here, the defendant raises arguments
under only the first and third prongs of the Rule 404(b) test.

8
 To meet its burden under the first prong, “the State is required to specify
the purpose for which the evidence is offered and articulate the precise chain of
reasoning by which the proffered evidence will tend to prove or disprove an
issue actually in dispute, without relying upon forbidden inferences of
predisposition, character, or propensity.” State v. Howe, 159 N.H. 366, 376
(2009) (quotation omitted). “That chain of reasoning must demonstrate a
sufficient logical connection between the prior acts and the permissible
purpose for which the State offers the evidence.” Id. (quotation omitted). “To
be relevant, prior bad acts must be in some significant way connected to
material events constituting the crime charged and not so remote in time as to
eliminate the nexus.” Beltran, 153 N.H. at 647-48. “Should the trial court rule
the evidence admissible, it must articulate for the record the theory upon
which the evidence is admitted, without invoking propensity, and explain
precisely how the evidence relates to the disputed issue.” Addison, 165 N.H. at
464.

The State argues that the defendant has waived any challenge to the
evidence involving E.A. because she did not object to the evidence under the
first prong of Rule 404(b), and, in fact, agreed that the evidence was relevant.
In her objection filed in the trial court, the defendant “concede[d] the relevance
of the alleged bad acts of the defendant against the child’s mother, without
conceding any other aspects of the argument.” During the hearing, defense
counsel stated: “I’m not arguing the relevance of the issues involving alleged
abuse against E.A. by my client.” Because “[t]he general rule is that a
contemporaneous and specific objection is required to preserve an issue for
appellate review,” State v. Towle, 167 N.H. 315, 326 (2015), we conclude that
the defendant’s argument as to the relevance of bad acts by the defendant
against E.A. is waived. However, her argument as to the relevance of acts
against D.A., as well as her argument under the third prong of Rule 404(b), is
preserved for our review.

The trial court found that the evidence relating to D.A. was relevant to
the defendant’s mental state and whether she acted knowingly. Because the
defendant was charged with knowingly causing serious bodily injury to D.A. by
failing to provide him with proper nutrition, the State had the burden to show
that she acted with this mental state, and not negligently or mistakenly. We
thus agree that this evidence was relevant to show the defendant’s intent,
knowledge, or absence of mistake or accident, see N.H. R. Ev. 404(b), because
it demonstrated her attitude and behavior toward D.A., which the jury could
find was more consistent with knowingly starving him than doing so negligently
or mistakenly. See N.H. R. Ev. 401 (“‘Relevant evidence’ means evidence
having any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be
without the evidence.”).

9
 The defendant asserts that “intent” under Rule 404(b) is synonymous
with “purpose,” and because the State had to prove only that the defendant
acted knowingly and not purposely, the evidence of other bad acts was not
relevant to her intent. The defendant contends that, “as a general matter,
other acts evidence is relevant to prove a defendant’s ‘intent’ only if the
defendant is charged with acting with a specific purpose.” Although the State
asserts that this argument is not preserved for our review because it was not
presented to the trial court, see State v. Noucas, 165 N.H. 146, 152 (2013), we
will address its merits.

The defendant correctly notes that, when determining the mens rea
requirement for an offense, we have equated “intentional” with “purposeful.”
See State v. Pond, 132 N.H. 472, 475 (1989) (stating that we had previously
concluded that “intentionally” was synonymous with “purposely,” and
therefore, purposely was the mens rea for the offense at issue). However, we
have also explained that, based upon its common law ancestry, the mental
state of “knowingly” corresponds to the concept of possessing general, rather
than specific, criminal intent. See State v. Ayer, 136 N.H. 191, 194 (1992) (“In
general, however, ‘purpose’ corresponds loosely with the common-law concept
of specific intent, while ‘knowledge’ corresponds loosely with the concept of
general intent.” (quotation omitted)).

We conclude that, for purposes of Rule 404(b), “intent” can entail any
mental state that the proponent of the evidence may seek to prove. See Velez v.
State, 762 P.2d 1297, 1313 (Alaska Ct. App. 1988) (Bryner, C.J., dissenting)
(“Rule 404(b) uses the word ‘intent’ as a convenient form of shorthand to
denote any aspect of the accused’s culpable mental state that is included as an
element of the prosecution’s case[.]”), superseded by rule; 22A C. Wright & K.
Graham, Federal Practice and Procedure: Evidence § 5242, at 313 (2012) (“The
‘intent’ exception [under Rule 404(b)] should be read broadly so as to cover any
required mental element of the crime whether malice or knowledge or the
absence of mistake, accident, duress or intoxication.” (footnotes omitted)). In a
number of our cases, we have upheld the admission of evidence, pursuant to
Rule 404(b), as relevant to intent for crimes that required the State to prove
that the defendant acted with a mental state other than purposely. See, e.g.,
Addison, 165 N.H. at 466-67 (upholding admission of prior bad acts to prove
intent or motive when the charged crime required proof that defendant acted
knowingly); Howe, 159 N.H. at 376-77 (holding that evidence of other bad acts
was relevant to intent — that the defendant knowingly possessed child
pornography — and relevant to lack of mistake or accident).

Here, because the State was required to prove that the defendant acted
knowingly, the trial court could properly admit evidence pursuant to Rule
404(b) that was relevant to her general (knowing) or specific (purposeful) intent
to commit the charged crime. Cf. RSA 626:2, III (2007) (stating that when the
law provides that “acting knowingly suffices, the element is also established if a

10
person acts purposely”); Roy, 167 N.H. at 287-88 (upholding the admission,
pursuant to Rule 404(b), of evidence that showed that the defendant acted
purposely for a crime that required proof that he acted recklessly).

The evidence of the other forms of abuse that the defendant perpetrated
against D.A. during the same period that she was depriving him of proper
nutrition was relevant to whether she committed the latter conduct knowingly.
It tended to show that her failure to provide D.A. with proper food was not the
result of accident, inadvertence, or a lack of understanding of the nutritional
needs of a young child, but rather was part of an obvious and deliberate
pattern of abuse of D.A.

C

The defendant next argues that the trial court erred in its analysis under
the third prong of Rule 404(b). Under this prong, evidence of bad acts “is
admissible if the danger of unfair prejudice to the defendant does not
substantially outweigh the probative value of the evidence.” Beltran, 153 N.H.
at 649. “We accord considerable deference to the trial court’s determination in
balancing prejudice and probative worth under Rule 404(b).” Id. “To prevail,
the defendant must show that the trial court’s ruling was clearly untenable or
unreasonable to the prejudice of [her] case.” Id.

“First, we consider the probative value of the evidence.” Howe, 159 N.H.
at 378 (quotation omitted). “Determining the probative value of evidence
entails analyzing how relevant it is.” Id. (quotation omitted). “Relevant
evidence may have limited probative value.” Id. (quotation omitted). Here, as
the trial court found and as we describe above, the other act evidence
pertaining to D.A. was highly relevant to the defendant’s mental state — that
she acted knowingly; and the other act evidence pertaining to E.A. was highly
relevant both to the defendant’s mental state and to E.A.’s credibility.

“Next, we consider whether the danger of unfair prejudice to the
defendant from admission of this evidence substantially outweighed its
probative value.” Id. (quotation omitted). “Evidence is unfairly prejudicial if its
primary purpose or effect is to appeal to a jury’s sympathies, arouse its sense
of horror, or provoke its instinct to punish, or trigger other mainsprings of
human action that may cause a jury to base its decision upon something other
than the established propositions in the case.” Beltran, 153 N.H. at 649. “It is
not, however, evidence that is merely detrimental to the defendant because it
tends to prove [her] guilt.” Id.

Although the balancing of prejudice and probative value cannot be
reduced to a precise formula, we consider several factors, including: (1)
whether the evidence would have a great emotional impact upon a jury; (2) its
potential for appealing to a juror’s sense of resentment or outrage; (3) the

11
extent to which the issue upon which it is offered is established by other
evidence, stipulation, or inference; and (4) whether the evidence is relevant to
prove an issue that is actually in serious dispute. Addison, 165 N.H. at 464.
“We have repeatedly emphasized that whether the evidence is relevant to prove
an issue that is actually in serious dispute is particularly important to the
calculus.” Id. Additionally, our analysis “generally focuses upon the content of
the evidence, not its volume.” Id. at 470. “While evidence of a prior offense or
bad act is always prejudicial, the prejudice is frequently outweighed by the
probative value of the evidence when the defendant’s knowledge or intent is a
contested issue in the case.” Howe, 159 N.H. at 378 (quotation and brackets
omitted).

The challenged evidence here was probative of the defendant’s knowledge
or intent, which was highly contested at trial. As we have stated: “When intent
is in serious dispute, the trial court is justified in assigning a high probative
value to other bad acts evidence that tends to prove criminal mens rea with
respect to the charged act.” Addison, 165 N.H. at 465. Much of the evidence
was also probative of the defendant’s role as D.A.’s primary caretaker and her
duty to care for him, which was another contested issue in the case. The State
had the burden to show both that the defendant acted knowingly and that she
had a duty to care for D.A. See id. (“When a culpable mens rea is an element of
the charged offense and the defense has not conceded the element, the issue of
intent is sufficiently disputed as to require evidence at trial.”).

We have also recognized that “[b]ecause persons rarely explain to others
the inner workings of their minds or mental processes, one’s culpable mental
state must, in most cases, be proven by circumstantial evidence, and the fact
finder may draw relevant inferences on the issue of intent from an accused’s
conduct.” Id. (quotation and ellipsis omitted). Although there was little doubt
that the evidence would have an emotional impact on the jury, because the
evidence was highly probative of matters that were actually in dispute and that
could not readily be established by other evidence, we conclude that the trial
court did not unsustainably exercise its discretion in finding that the probative
value of the evidence was not substantially outweighed by the danger of unfair
prejudice to the defendant.

IV

The defendant also argues that the trial court erred by not striking
evidence of: (1) an incident when the defendant was watching a friend’s child
and the child ran into the road and was nearly hit by a vehicle; (2) the
defendant’s extramarital affair and the fact that her boyfriend, not her
husband, was the father of some of her children; and (3) a psychologist’s expert
opinion that the defendant was dishonest, impulsive, self-centered, and
narcissistic, lacked empathy, and was unwilling to accept responsibility for her
actions. Because the defendant did not challenge this evidence at trial, she

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raises these issues as plain error. See Sup. Ct. R. 16-A (“A plain error that
affects substantial rights may be considered even though it was not brought to
the attention of the trial court or the supreme court.”).

“For us to find plain error: (1) there must be error; (2) the error must be
plain; and (3) the error must affect substantial rights.” State v. Pinault, 168
N.H. 28, 33 (2015) (quotation omitted). “If all three of these conditions are met,
we may then exercise our discretion to correct a forfeited error only if the error
meets a fourth criterion: the error must seriously affect the fairness, integrity
or public reputation of judicial proceedings.” Id. at 33-34 (quotation omitted).
“The plain error rule is used sparingly, however, and is limited to those
circumstances in which a miscarriage of justice would otherwise result.” Id. at
34 (quotation omitted).

Because the defendant did not object to the challenged testimony, and
the trial court made no ruling on its admissibility, “the pertinent question is
whether the trial court erred in failing sua sponte to strike that testimony.”
State v. Rawnsley, 167 N.H. 8, 12 (2014) (quotation and brackets omitted). “We
have never held that a trial court must sua sponte strike” a witness’s
testimony. Id. (quotation omitted). A trial court might have that obligation
“when there could be no dispute that certain testimony impaired the
defendant’s substantial rights and adversely affected the fairness, integrity, or
public reputation of judicial proceedings,” id.; this case, however, does not
present such a situation.

“What is often overlooked in the rote application of the plain error
standard is that, without objection, it is almost impossible to conclude that the
trial court committed error at all.” Id. at 13 (quotation and brackets omitted).
“[D]efense counsel can waive evidentiary restrictions, and often has legitimate
strategic reasons for doing so.” Id. (quotation omitted). “Under those
circumstances, reviewing admission of evidence for plain error can serve to
transform defense counsel’s strategic decisions into trial court errors.” Id.
(quotation, brackets, and ellipsis omitted). “In this way, trial counsel’s sound
strategy becomes plain error at appellate counsel’s urging.” Id. (quotation,
brackets, and ellipsis omitted).

Here, defense counsel may have had strategic reasons for not objecting to
the three items of testimonial evidence at issue. First, a witness who lived in
the defendant’s home for a few months testified that while the defendant was
supposed to be watching his daughter, the child ran into the street and was
nearly struck by a vehicle. This incident caused a falling out between the
witness and the defendant, which resulted in him moving out. The defendant
argues that this evidence was inadmissible under Rule 404(b) because its only
purpose was to show her propensity to engage in the charged conduct —
neglecting a child. However, at trial, defense counsel stated that many of the
State’s witnesses had “an ax to grind” against the defendant. This testimony

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would serve the strategic purpose of demonstrating that witness’s bias or
animus toward the defendant. Additionally, because the defendant was
charged with knowingly, not negligently, committing the crime, this evidence
did not demonstrate a propensity to engage in the charged conduct. Instead, it
could be used for another strategic purpose by the defense; that is, to show
that the defendant was merely negligent in failing to care for D.A. or other
children, and did not do so knowingly.

Second, the State elicited testimony from a number of witnesses that the
defendant’s boyfriend, or former boyfriend, who lived in the defendant’s home,
was the father of some of her children. This occurred while she was married to
her husband, who later found out and allowed the boyfriend to continue living
in the home. The defendant argues that this evidence is prohibited by Rule
404(b) because it was offered only to show her bad character. Again, however,
defense counsel may have declined to object to this testimony because he saw
strategic reasons for its admission — it showed that there were many adults
living in the home, and that this particular individual was a permanent
member of the family who had an interest in caring for the children. It thus
supported defense counsel’s argument at trial that the defendant was not the
only one in charge of caring for and feeding the children in the home.

Third, a clinical psychologist, Dr. Halla, testified that he evaluated the
defendant and E.A. and administered tests including a “Child Abuse Potential
Inventory,” a personality test, and a “Parenting Stress Index.” The tests have
“validity scales,” which measure whether an individual is trying to appear a
certain way. Halla testified that the defendant’s results were invalid on three of
the five tests he administered to her, indicating deception or defensiveness. He
concluded that she had “tendencies toward impulsive, self-centered,
narcissistic behavior,” had a limited ability for empathy, and “was unwilling to
accept responsibility” for her actions. Halla testified similarly about E.A. The
defendant argues that this evidence was inadmissible under Rule 404(a)(1)
because the State may not introduce evidence of a defendant’s negative
character traits except in rebuttal. See N.H. R. Ev. 404(a)(1). Defense counsel
may have wanted Halla’s testimony admitted, however, to undermine E.A.’s
credibility or to suggest that she was more responsible for D.A.’s condition.

In addition to these potential strategic purposes, which we are hesitant
to second-guess on appeal and label as error, the defendant has failed to
demonstrate plain error because the evidence of her guilt was overwhelming.
Even if we were to assume that there was error and that it was plain, the error
must affect substantial rights. See Pinault, 168 N.H. at 33. To meet this third
prong, “the defendant must demonstrate that the error was prejudicial, i.e.,
that it affected the outcome of the proceeding.” Id. at 34 (quotation omitted).
“We will find prejudice under the third prong when we cannot confidently state
that the jury would have returned the same verdict in the absence of the error.”
State v. Mueller, 166 N.H. 65, 70 (2014). Given the record before us, we are

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confident that the jury would have returned the same verdict even if it had not
heard any of the three items of evidence discussed above. Accordingly, we
conclude that the defendant has failed to demonstrate that the trial court
committed plain error.

Affirmed.

DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.

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