State of New Hampshire v. David A. Shaw

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0369, State of New Hampshire v. David
A. Shaw, the court on March 6, 2020, issued the following
order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
defendant, David A. Shaw, appeals his convictions, following a jury trial in the
Superior Court (Houran, J.), on two counts of aggravated felonious sexual
assault and one count of felonious sexual assault. See RSA 632-A:2, :3 (Supp.
2019). He argues that the trial court erred by admitting evidence of a prior bad
act. We affirm.

The following facts are supported by the record. In February 2015, the
defendant began dating the victim’s mother. In August 2015, he moved into
her house where the victim, who was eight, and the victim’s sister, who was
six, also lived. The victim and her sister shared a bedroom and the defendant
shared another bedroom with the victim’s mother. Shaw’s children from a
prior marriage, a four-year-old son and a daughter, shared a third bedroom.
Eventually the defendant formed a close relationship with the victim.

The victim is diagnosed with autism spectrum disorder, a
neurodevelopmental disorder that led her to occasionally experience emotional
outbursts and aggressive behaviors, often in reaction to changes to her routine.
After the defendant moved into the house with his son, the victim and her
sister became curious about male anatomy and, on occasion, would playfully
attempt to pull the defendant’s shorts down in order to see his penis.

In August 2016, the victim, her sister, and her mother were leaving
football practice and discussed an incident after practice when a boy attempted
to take off his protective cup in front of other children and their parents. While
laughing about this incident, the victim stated, “[T]hat’s kind of like . . . when
[the defendant] makes me lick his penis.” Following this disclosure, the
victim’s mother called the police and left the house with her children. In
September 2016, the victim attended a forensic interview, after which the
defendant was indicted on two counts of felonious sexual assault and three
counts of aggravated felonious sexual assault.

Prior to trial, the State moved to admit evidence of several instances of
the defendant’s prior bad conduct pursuant to Rule of Evidence 404(b). See
N.H. R. Ev. 404(b). As relevant here, it sought to admit evidence that on one
occasion, referred to by the trial court as the “exposure incident,” the
defendant exposed his penis to the victim. According to the victim’s mother,
the defendant admitted to this conduct and explained that he did so in an
effort to calm the victim who was having an emotional and aggressive outburst.
The State argued that this evidence was admissible because it demonstrated
the defendant’s plan “to desensitize the victim to sexualized behavior so that he
could perform the charged acts.” The defendant objected, arguing, in part, that
the evidence was inadmissible to demonstrate desensitization because the
State could not show that the incident took place before the charged events
and the incident itself did not constitute “grooming” behavior. The Trial Court
(Howard, J.) held an evidentiary hearing and granted the State’s motion with
respect to the exposure incident, concluding that the incident demonstrated “a
calculated progression of sexual conduct toward” the victim. However, upon
reconsideration, it conditioned the admission of this evidence on the State’s
ability to show at trial that the incident occurred prior to the charged conduct.

At trial, the victim testified that the defendant sexually assaulted her on
multiple occasions and that the assaults occurred “a few months” before the
forensic interview, which took place in September 2016. Outside the presence
of the jury, the victim’s mother testified that the exposure incident occurred
between January and March of 2016. Accordingly, the trial court found that
the exposure incident occurred prior to the charged events and ruled the
evidence admissible. The victim’s mother then testified, in the presence of the
jury, that on one occasion while the victim was having an episode of aggression
she left the victim at home alone with the defendant. When she returned
home, the defendant told her that “he didn’t know what to do” and “the only
way that he could calm [the victim] down was to show her his penis.”

The defendant was convicted on one count of felonious sexual assault
and two counts of aggravated felonious sexual assault.1 This appeal followed.

We review a trial court’s admission of evidence pursuant to Rule 404(b)
under our unsustainable exercise of discretion standard. State v. Ericson, 159
N.H. 379, 387 (2009). We will reverse the trial court’s decision if it was clearly
untenable or unreasonable to the prejudice of the defendant’s case. Id.

Rule of Evidence 404(b) governs the admissibility of evidence of crimes,
wrongs, or acts, generally referred to as prior bad act evidence. See N.H. R. Ev.
404(b). It prohibits admission of evidence of such acts “to prove the character
of a person in order to show that the person acted in conformity therewith,” but
permits admission of such evidence for purposes “such as proof of motive,

1
One count of felonious sexual assault was dismissed at the close of the State’s case and the jury
found the defendant not guilty on one count of aggravated felonious sexual assault.

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opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” Id. Prior bad act evidence is admissible if it satisfies a
three-prong test: (1) the evidence must be relevant for a purpose other than
proving the defendant’s character or disposition; (2) there must be clear proof
that the defendant committed the act; and (3) the probative value of the
evidence must not be substantially outweighed by its prejudice to the
defendant. Ericson, 159 N.H. at 387-88.

The defendant first argues that the exposure incident cannot be properly
considered part of a plan to desensitize the victim to sexual activity because
the evidence did not clearly show that the incident took place prior to the
charged events. However, given the victim’s testimony that the charged
conduct occurred “a few months” prior to September 2016, and the victim’s
mother’s testimony that the exposure incident occurred between January and
March 2016, we conclude that it was reasonable for the trial court to find that
the exposure incident predated the charged conduct.

The defendant argues that the timing of the events also renders the
exposure incident inadmissible, because “whatever supposed desensitizing
influence the exposure incident might have would have worn off by the time of
the alleged assaults.” However, based upon the record we cannot conclude
that the exposure incident took place so far before the charged conduct that it
had negligible desensitizing influence on the victim.

The defendant also argues that “the isolated nature of the incident
weakens its probative value as offered to prove preparation or grooming.”
However, when considered together with other circumstances occurring in the
household, such as the victim’s inquisitiveness of the male anatomy and the
playful manner in which she and her sister would attempt to expose the
defendant’s penis, we conclude that the trial court did not commit an
unsustainable exercise of discretion in admitting evidence of the exposure
incident. The trial court reasonably concluded that the incident demonstrated
the defendant’s plan to desensitize the victim to the intentional exposure of his
penis in a calculated progression of sexual conduct toward her. See State v.
Castine, 141 N.H. 300, 303-04 (1996).

Finally, the defendant argues that evidence of the exposure incident
unfairly prejudiced him. As the defendant recognizes, however, evidence of this
incident “was no more inflammatory than the charged offenses themselves,”
and we cannot conclude that its prejudicial effect substantially outweighed the
probative value of the defendant’s desire to desensitize the victim to his sexual
advances. See State v. Haley, 141 N.H. 541, 547 (1997). Accordingly, we

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conclude that the trial court sustainably exercised its discretion in admitting
evidence of the exposure incident.
Affirmed.

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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