State of New Hampshire v. Aldo Batista Dos Santos

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0119, State of New Hampshire v. Aldo
Batista Dos Santos, the court on February 11, 2016, issued the
following order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm the defendant’s convictions, and affirm in part and vacate in part his
sentence.

The defendant, Aldo Batista Dos Santos, appeals his conviction, following
a jury trial in Superior Court (Colburn, J.), on charges of felonious and
misdemeanor sexual assault. See RSA 632-A:3, :4 (Supp. 2015). He argues
that the trial court erred by granting the State’s motion in limine to admit
evidence of uncharged sexual conduct over his objection that such evidence
was inadmissible pursuant to New Hampshire Rule of Evidence 404(b). He
further argues that the trial court engaged in plain error, see Sup. Ct. R. 16-A,
by imposing a “no-contact” order and certain other conditions of his sentence
contrary to our opinion in State v. Towle, 167 N.H. 315, 327-28 (2015).

We first address whether the trial court erred by granting the State’s
motion to admit evidence of uncharged sexual conduct. We review the trial
court’s evidentiary ruling for an unsustainable exercise of discretion, reversing
only if it was clearly untenable or unreasonable to the prejudice of the
defendant’s case. State v. Nightingale, 160 N.H. 569, 573 (2010). Because the
trial court ruled on the evidentiary issue prior to trial, we consider only what
was before it at the pretrial hearing. Id.

The defendant was the victim’s martial arts instructor. The felony
assaults occurred at the defendant’s Nashua home following a Saturday
morning martial arts class that he taught in Lowell, Massachusetts. The victim
was thirteen years old at the time of the assaults.

On the morning of the assaults, the defendant picked the victim up at
her residence, and drove her to the Lowell martial arts studio; they were alone
during the ride. They arrived early for the class, and after passing by a janitor,
they were again alone for a period of time before other students began to arrive.
Following the class, rather than taking the victim directly to her home, the
defendant brought her to his Nashua residence, where he committed the
charged felonious sexual assaults in his shower and on his bed.
 In its motion in limine, the State sought to introduce evidence of the
following uncharged acts. First, during the ride to Lowell, the defendant placed
his hand on the victim’s upper thigh and began to rub it. Second, after they
arrived at the studio, he brought the victim into the men’s changing room,
undressed in front of her, and then approached her, placed his hands around
her waist, and kissed her, inserting his tongue into her mouth. He then
instructed the victim to change, and watched her as she undressed. Finally,
after the defendant and victim had changed into their training clothes, the
defendant brought the victim into the studio, instructed her to lie down on her
side, and lay behind her, placing his arm over her waist in a “spooning”
position. They lay together in that position for a few minutes until the door to
the studio opened, at which point the defendant immediately got up.

In granting the State’s motion, the trial court found that the uncharged
acts were “inextricably intertwined” with, and “intrinsic” to, the charged
assaults. Thus, the trial court concluded that the uncharged acts were not
“[e]vidence of other crimes, wrongs, or acts” for purposes of Rule 404(b), but
instead constituted res gestae evidence subject only to review under New
Hampshire Rule of Evidence 403. See State v. Wells, 166 N.H. 73, 77-79
(2014). On appeal, the defendant argues that, because the uncharged acts
were separated from the charged assaults both spatially and temporally, they
could not constitute res gestae evidence as a matter of law. He further argues
that the probative value of the evidence was substantially outweighed by the
danger of unfair prejudice for purposes of Rule 403. We disagree.

Rule 404(b) “excludes only extrinsic evidence – evidence of other crimes,
wrongs, or acts – whose probative value exclusively depends upon a forbidden
inference of criminal propensity.” Id. at 77 (quotation omitted). “Other acts”
that are “intrinsic” to the charged crime – that is, acts that are “inextricably
intertwined” with the charged crime, part of a “single criminal episode”
involving the charged crime, or “necessary preliminaries” to the charged crime
– constitute res gestae evidence, and are not excluded by Rule 404(b). Id.; see
State v. Dion, 164 N.H. 544, 551 (2013). Such evidence “is admissible under
the rationale that events do not occur in a vacuum, and the jury has a right to
hear what occurred immediately prior to and subsequent to the commission of
the charged act so that it may realistically evaluate the evidence.” Wells, 166
N.H. at 78 (quotation and brackets omitted). However, the evidence still must
satisfy the balancing test of Rule 403. Id. at 79.

In this case, the trial court observed that the defendant’s conduct
occurred within as little as two hours, and no more than half a day, of the
charged assaults, and that it constituted “a continuous progression of
behavior” leading to the charged assaults. Although the uncharged acts may
have occurred prior to, and in a different location from, the charged assaults,
these factors do not necessarily disqualify them from constituting res gestae
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evidence. See, e.g., Dion, 164 N.H. at 550-51 (finding that evidence of the
defendant’s cell phone use during a thirty-seven minute car ride prior to a fatal
collision with a pedestrian was intrinsic to the charge that the defendant was
so distracted by her cell phone that she failed to avoid the victim). Here, we
conclude that the trial court reasonably could have found that the uncharged
acts were not isolated events, but were part of the same episode that
culminated in the charged assaults and, thus, intrinsic to the assaults.

The trial court likewise reasonably could have determined that the
probative value of the evidence was not substantially outweighed by the danger
of unfair prejudice. “Evidence is unfairly prejudicial if its primary purpose or
effect is to appeal to a jury’s sympathies, arouse its sense of horror, provoke its
instinct to punish, or trigger other mainsprings of human action that may
cause a jury to base its decision on something other than the established
propositions in the case.” Wells, 166 N.H. at 79 (quotation omitted). Here, the
trial court found that the uncharged acts were “directly probative,” and
“complete[d] the story,” of the charged assaults. Excluding such evidence
would have left the jury with an incomplete account of what transpired prior to
the charged assaults. Id. at 78. Moreover, as the trial court observed, the
uncharged acts were no more emotionally-charged than the charged acts. See
id. at 80-81. Upon this record, we cannot say that the trial court’s decision to
grant the State’s motion was clearly untenable or unreasonable to the prejudice
of the defendant’s case. Nightingale, 160 N.H. at 573.

Finally, we address whether the trial court plainly erred by imposing a
“no-contact” order in the defendant’s sentence, and by imposing several
conditions to the sentence in an addendum. The State concedes that the trial
court lacked authority, under Towle, 167 N.H. at 327-28, to impose the no-
contact order, or any of the conditions contained within the addendum.
Accordingly, we vacate both the no-contact provision of the defendant’s
sentence and the addendum to the sentence. In all other respects, the
defendant’s sentence is affirmed.

Convictions affirmed;
sentence affirmed in part and
vacated in part.

Dalianis, C.J., and Hicks, Conboy, and Lynn, JJ., concurred.

Eileen Fox,
Clerk

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