State of New Hampshire v. Christopher Harrington

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0547, State of New Hampshire v.
Christopher Harrington, the court on November 14, 2023,
issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The
defendant, Christopher Harrington, appeals his convictions, following a jury
trial in the Superior Court (Wageling, J.), on three counts of aggravated
felonious sexual assault, RSA 632-A:2 I(l), III (2016), and one count of felonious
sexual assault, RSA 632-A:3, III(a)(1) (Supp. 2022). He argues that the trial
court erred when it granted the State’s pretrial motion to admit evidence of
uncharged conduct, see N.H. R. Ev. 404(b), and, in the alternative, that he was
denied effective assistance of counsel. We conclude that the trial court erred
by granting the State’s pretrial motion to admit evidence of certain uncharged
conduct and that this error was not harmless beyond a reasonable doubt.
Accordingly, we reverse and remand.

The record supports the following facts. The complainant and her
mother were close friends of the defendant, his wife, and their child. When the
complainant was four years old, she and her mother resided for eight months
with the defendant and his family at the defendant’s home. After she and her
mother moved to their own residence, the complainant continued to spend
nights and weekends at the defendant’s home.

In October 2018, when the complainant was twelve years old, she told a
friend that she had been sexually assaulted. The friend told one of the
complainant’s teachers what the complainant had said to her. The teacher told
the complainant that the teacher was required to report this to the school
resource officer, which she did the next day. Shortly thereafter, the
complainant was interviewed at a Child Advocacy Center (CAC).

During the CAC interview, the complainant stated that she had been
sexually assaulted repeatedly by the defendant when she was between the ages
of nine and eleven. She recounted that, on several occasions when she visited
the defendant’s home, he fondled, groped, and digitally penetrated her. She
said that, when she was eleven years old, the assaults stopped for
approximately one year. However, she stated that there was an additional
incident that occurred in autumn of 2018, shortly before the CAC interview:
the complainant and the defendant had attended the funeral of the defendant’s
stepfather in Massachusetts. She told the interviewer that the defendant
approached her at the funeral and gave her a hug and, in so doing, he touched
her buttocks and breast.

In May 2019, a grand jury indicted the defendant on three counts of
aggravated felonious sexual assault (AFSA), RSA 632-A:2, I(l), III, and three
charges of felonious sexual assault (FSA), RSA 632-A:3, III(a)(1), for assaults
that the complainant alleged occurred within the defendant’s home. The State
filed no charges related to the defendant’s conduct at his stepfather’s funeral
(“the funeral incident”).

Before trial, the State filed a motion in limine to admit evidence regarding
the funeral incident. At a hearing on the motion, the State argued that this
evidence was admissible under New Hampshire Rule of Evidence 404(b). It
sought to introduce testimony about the funeral incident to explain to the jury
why the complainant disclosed the assaults one year after the last charged
assault occurred. The defense argued that evidence of the funeral incident was
inadmissible because it did not satisfy the requirements of Rule 404(b). The
trial court granted the State’s motion, and the complainant testified about the
funeral incident at trial without further objection.

Following the four-day jury trial, the jury convicted the defendant on the
three AFSA counts and one count of FSA, acquitting him on the other two FSA
counts. This appeal followed.

The defendant raises two issues on appeal: first, whether the trial court
erred when it granted the State’s pretrial motion to admit evidence of
uncharged conduct, see N.H. R. Ev. 404(b); and second, whether the
defendant’s trial counsel was ineffective for failing to move to strike the
complainant’s trial testimony about the funeral incident and to move for a
mistrial. We begin by addressing the trial court’s decision to grant the State’s
pretrial motion. Rule 404(b) provides:

(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:

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 (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.
N.H. R. Ev. 404(b). The State bears the burden of demonstrating the
admissibility of uncharged conduct under Rule 404(b). State v. Nightingale, 160 N.H. 569, 574 (2010).

On appeal, the defendant argues that, because the evidence does not
satisfy any of the three prongs of Rule 404(b)(2), the trial court erred in ruling
that the evidence of the funeral incident was admissible. The defendant also
argues that, at a minimum, the trial court should have waited until trial to rule
on the State’s motion. The State counters that the court sustainably exercised
its discretion when it concluded that the State had satisfied all three prongs of
Rule 404(b)(2) with respect to evidence of the funeral incident and ruled the
evidence admissible before trial. The State also argues that, even if the court
erred in admitting the evidence, any error was harmless beyond a reasonable
doubt.

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. at 573. Because the trial court ruled
before trial regarding the admissibility of the challenged evidence, we consider
only the arguments and evidence presented at the pretrial hearing. Id. “We so
limit our review to avoid the pitfall of justifying the court’s pretrial ruling upon
the defendant’s response at trial to the evidence.” Id. (quotation omitted). We
agree with the defendant that the trial court erred when it ruled that testimony
about the funeral incident was admissible at trial. Specifically, we conclude
that there was insufficient evidence presented at the pretrial hearing to support
the trial court’s conclusion that the third prong of Rule 404(b)(2) was satisfied
— that the probative value of the evidence of the funeral incident was not
substantially outweighed by the danger of unfair prejudice. See N.H. R. Ev.
404(b)(2)(C).

To address the parties’ arguments regarding the third prong of Rule
404(b)(2), we must employ the same analysis that we employ under Rule 403.
State v. Roy, 167 N.H. 276, 288 (2015); see also N.H. R. Ev. 403 (“The court
may exclude relevant evidence if its probative value is substantially outweighed
by a danger of . . . unfair prejudice.”). We accord considerable deference to the
trial court’s determination in balancing prejudicial impact and probative worth.
See State v. Thomas, 168 N.H. 589, 602 (2016). “In determining whether a

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ruling is a proper exercise of judicial discretion, we consider whether the record
establishes an objective basis sufficient to sustain the discretionary decision
made.” Roy, 167 N.H. at 284 (quotation omitted). Although the proper
balancing of evidence’s unfair prejudice and probative value “cannot be
reduced to a precise formula,” we have identified several factors for the trial
court to consider, including: whether the evidence would have a great
emotional impact upon a jury; its potential for appealing to a juror’s sense of
resentment or outrage; the extent to which the issue upon which it is offered is
established by other evidence, stipulation, or inference; and whether the
evidence is relevant to prove an issue that is actually in serious
dispute. Thomas, 168 N.H. at 602-03.

Turning first to the probative value of the funeral incident evidence, the
trial court agreed with the State that the evidence was relevant to show “why
[the complainant] chose to disclose the [charged assaults] when she did.” The
trial court ruled that the evidence had a “high probative value because it can
dispel an inference that the [charged assaults] did not occur based upon [the
complainant’s] yearlong delay in reporting.” We agree with the trial court that
the disputed evidence was “relevant to prove an issue that [was] actually in
serious dispute,” Id. at 603 — the credibility of the complainant’s claim that
the charged assaults occurred.

We have observed that a child’s delayed disclosure of abuse “may be
puzzling or appear counterintuitive” to lay observers. State v. Cressey, 137
N.H. 402, 411 (1993). Accordingly, the State may introduce evidence to explain
a sexual assault complainant’s behavior, including evidence explaining a delay
in disclosure. See State v. Cook, 158 N.H. 708, 713 (2009). The pretrial record
demonstrates that the complainant disclosed the assaults approximately one
year after they stopped and that the funeral incident precipitated the
complainant’s disclosure. Although, as the trial court recognized, the funeral
incident evidence did not explain why the complainant delayed disclosing the
abuse, it did explain the timing of her disclosure. Evidence about why she
disclosed when she did was relevant to dispel an inference that she fabricated
the abuse. See id.; State v. Chamberlain, 137 N.H. 414, 417-18 (1993). The
funeral incident evidence was therefore probative of the important issue of the
complainant’s credibility.

We now turn to the danger of unfair prejudice and its relative weight as
against the probative value of the funeral incident evidence. “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.” State v.
Palermo, 168 N.H. 387, 395 (2015) (quotation omitted). The record here
demonstrates that the funeral incident evidence posed a great danger of unfair

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prejudice for two reasons: it is similar in nature to the charged offenses, and
the details of the incident are uniquely inflammatory.

Unfair prejudice is inherent in evidence of other similar crimes or wrongs
because, notwithstanding the permissible reasons for which such evidence
might be admitted, there is a risk that the jury will find the defendant had a
propensity to commit the charged crime merely because the defendant
committed a similar crime or wrong on another occasion. State v. Belonga, 163
N.H. 343, 360 (2012). The risk of unfair prejudice increases as the degree of
similarity between the other act and the charged crime increases. See id.
Here, the funeral incident involved conduct analogous to the charged crimes.
The defendant was charged with sexually assaulting the complainant on
several occasions by forcing her to touch his penis, digitally penetrating her
vagina, and touching her vagina with his hand. Similarly, the pretrial record
demonstrates that the funeral incident involved the defendant’s use of his hand
to touch other intimate parts of the complainant’s body — her buttocks and
breast. The danger of unfair prejudice posed by the introduction of this
evidence was, accordingly, high: it had the potential to persuade the jury that
the defendant committed the charged offenses merely because he had engaged
in similar behavior on another occasion. See id.

In addition, the uncharged conduct and the context in which it occurred
had the potential to appeal to “a juror’s sense of resentment or outrage.”
Thomas, 168 N.H. at 603. Although the complainant’s pre-hearing
descriptions of the funeral incident differed in material respects, and the
egregiousness of the conduct she described varied, the danger of unfair
prejudice remained great. Specifically, during her CAC interview, the
complainant stated that, at the funeral of the defendant’s stepfather, the
defendant consoled her while she was crying and squeezed her buttocks. She
then sat down because she was uncomfortable. The defendant sat down next
to her, began rubbing her shoulder, and then squeezed her breast. There was
also evidence before the trial court that the complainant had minimized the
incident during preparation for trial by saying that, although the defendant
squeezed her buttocks, he only “grazed” her breast and this grazing was
“probably just an accident.” She also described the whole incident as “not a
big deal.”

In light of these two accounts, we agree with the trial court’s observation
during the motion hearing that the prejudicial impact of the complainant’s
testimony regarding the funeral incident would vary greatly depending on the
details of the complainant’s actual trial testimony. However, regardless of
which version of events she ultimately testified to, both accounts included
details likely to appeal to a juror’s sense of resentment or outrage: that, at his
stepfather’s funeral, the defendant squeezed a minor child’s buttocks. See id.
Indeed, the trial court recognized this reality in its pretrial order, stating that “a

5
description of a sexual assault of a minor child at a funeral may appeal to an
average juror’s sense of resentment or outrage.”

In sum, the unique context of the incident, a family funeral, in
combination with the potential that the testimony, however minimized, would
serve as propensity evidence, created a substantial danger of unfair prejudice.
The trial court did not properly weigh the danger of the unfair prejudicial
impact of the evidence against its probative value. Accordingly, because the
record does not establish an objective basis for the trial court to have
determined, as required by Rule 404(b)(2)(C), that the probative value of the
funeral incident evidence was not substantially outweighed by the danger of
unfair prejudice, we conclude that the trial court erred when it ruled that the
funeral incident testimony was admissible. See Roy, 167 N.H. at 284.

We turn now to the question of whether the trial court’s error prejudiced
the defendant’s case. See Nightingale, 160 N.H. at 573. We conclude that it
did. Evidence of the funeral incident was admitted at trial. We have previously
observed that the admission of improper Rule 404(b) evidence “is inherently
prejudicial.” State v. Davidson, 163 N.H. 462, 471 (2012). This is particularly
so where, as here, the uncharged conduct bears some similarity to the charged
conduct. See State v. Watkins, 148 N.H. 760, 767-68 (2002) (concluding that
admission of conviction for prior offense was unduly prejudicial under Rule
404(b)(2)(C) in trial for later commission of same offense). Accordingly, we
conclude that the trial court unsustainably exercised its discretion when it
determined prior to trial that the funeral incident evidence was admissible
under Rule 404(b). See Nightingale, 160 N.H. at 573.

The State argues that the error was harmless. We disagree. To establish
harmless error, the State must prove beyond a reasonable doubt that the error
did not affect the verdict. State v. Boudreau, 176 N.H. ____, ____ (decided June
7, 2023) (slip op. at 9). This standard applies to both the erroneous admission
and exclusion of evidence. Id. at ____ (slip op. at 9). We consider the
alternative evidence presented at trial as well as the character of the
erroneously admitted evidence itself. Id. at ____ (slip op. at 9). To determine
whether the State has proven beyond a reasonable doubt that an error did not
affect the verdict, we must evaluate the totality of the circumstances at trial.
Id. at ____ (slip op. at 9).1

1 In State v. Boudreau, 176 N.H. ____ (decided June 7, 2023), we revisited our harmless error

standard and adopted the totality of the circumstances approach that we apply here. However,
the adoption of a totality of the circumstances approach “d[id] not fundamentally change the
nature or application of the analysis this court has traditionally employed.” Boudreau, 176 N.H.
at ____ (slip op. at 10). Therefore, in the instant case, we refer to harmless error jurisprudence
that predates Boudreau to aid our analysis.

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 The factors that we consider in assessing whether an error did not affect
the verdict include, but are not limited to: (1) the strength of the State’s case;
(2) whether the admitted or excluded evidence is cumulative or inconsequential
in relation to the strength of the State’s case; (3) the frequency of the error; (4)
the presence or absence of evidence corroborating or contradicting the
erroneously admitted or excluded evidence; (5) the nature of the defense; (6)
the circumstances in which the evidence was introduced at trial; (7) whether
the court took any curative steps; (8) whether the evidence is of an
inflammatory nature; and (9) whether the other evidence of the defendant’s
guilt is of an overwhelming nature. Id. at ____ (slip op. at 10). No one factor is
dispositive. Id. at ____ (slip op. at 10). This court may consider factors not
listed above, and not all factors may be implicated in a given case. Id. at ____
(slip op. at 10).

Here, the State has not proven beyond a reasonable doubt that the error
in admitting the testimony about the funeral incident did not affect the verdict.
The State did not present overwhelming other evidence of the defendant’s guilt
at trial. See id. at ____ (slip op. at 11) (finding an error harmless where “the
alternative evidence of the defendant’s guilt was overwhelming”). It offered no
physical evidence that corroborated the complainant’s testimony, no
inculpatory statements by the defendant were introduced, and no witnesses
testified that they saw the defendant act inappropriately toward the
complainant. Significantly, the defendant’s daughter — whom the complainant
testified was present for many of the assaults — testified that she never saw
the defendant touch the complainant inappropriately. Therefore, as in many
sexual assault cases, the trial centered upon the credibility of the complainant.
See State v. Racette, 175 N.H. 132, 138 (2022). At numerous points during the
trial, the defendant challenged the complainant’s credibility. See id. at 139.
Notably, during his cross-examination of the complainant, the defendant
repeatedly impeached the complainant by drawing out inconsistencies between
her testimony at trial and her statements to investigators. “Given that the case
was ultimately and essentially a credibility contest between the victim and the
defendant, and that the victim’s credibility had been attacked by the defense
with some success, we are not convinced beyond a reasonable doubt that the
erroneously admitted [evidence] did not influence the jury’s determination to
believe the [complainant] over the defendant.” State v. Reynolds, 136 N.H. 325,
329 (1992).

The State nonetheless argues that the error was harmless because the
evidence of the funeral incident was inconsequential in relation to the State’s
other evidence of guilt. See Boudreau, 176 N.H. at ____ (slip op. at 10).
Specifically, the State argues that the funeral incident was inconsequential
because it was “comparatively innocuous” behavior in relation to the charged
assaults, and it is “hard to believe that the jury convicted the defendant of far
more serious offenses because it heard testimony about the funeral incident.”

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We disagree. Even if assaulting the complainant at the funeral can be fairly
characterized as “comparatively innocuous” relative to the charged conduct, as
we have described above, evidence of such conduct is nonetheless of an
inflammatory nature and could provoke the jury’s sense of outrage or instinct
to punish. See id. at ____ (slip op. at 10); Palermo, 168 N.H. at 395. Indeed,
the State asserted in its closing that the funeral incident “br[ought] [the
complainant] back to the abuse” she suffered, and argued that the incident
showed that the defendant can “get away with” sexual assault “in plain sight.”

Further, the manner by which the evidence of the funeral incident was
presented at trial made it more likely the jury would rely on it when rendering
its verdict. See Boudreau, 176 N.H. at ____ (slip op. at 10). The State
repeatedly referred to the evidence in its closing argument, see State v. Pelkey, 145 N.H. 133, 137-38 (2000) (error not harmless when “[t]he State specifically
addressed [the disputed evidence] in its closing argument, reinforcing its
significant prejudicial impact”), and the complainant was questioned at length
during direct and cross-examination about the funeral incident, see Boudreau,
176 N.H. at ____ (slip op. at 10). For these reasons, we conclude that the State
has failed to meet its burden to establish beyond a reasonable doubt that the
erroneous admission of the testimony did not affect the verdict. Id. at ____ (slip
op. at 9).

Because we conclude that the trial court erred by granting the State’s
motion to admit evidence of the funeral incident and that the error was not
harmless beyond a reasonable doubt, we need not address the defendant’s
arguments regarding ineffective assistance of counsel. Any issues that the
defendant raised in the notice of appeal, but did not brief, are deemed waived.
State v. Bazinet, 170 N.H. 680, 688 (2018). We reverse and remand.

Reversed and remanded.

BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred;
MACDONALD, C.J., and HICKS, dissented.

Timothy A. Gudas,
Clerk

MACDONALD, C.J. and HICKS, J., dissenting. Because we disagree with
the majority’s conclusion that the trial court erred by granting the State’s
pretrial motion to admit evidence of uncharged conduct, we respectfully
dissent.

We agree with the majority that we review the trial court’s ruling for an
unsustainable exercise of discretion and will reverse only if it was clearly

8
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 before
trial regarding the admissibility of the challenged evidence, we consider only
the arguments and evidence presented at the pretrial hearing. Id. After review
of that evidence, we would hold that the defendant has failed to demonstrate
that the trial court unsustainably exercised its discretion.

According to the majority, there was insufficient evidence presented at
the pretrial hearing to support the trial court’s conclusion that the probative
value of the funeral incident was not substantially outweighed by the danger of
unfair prejudice. We agree with the majority that the funeral incident evidence
was probative of the important issue of the complainant’s credibility. However,
we disagree that “the funeral incident evidence posed a great danger of unfair
prejudice” because: (1) it was “similar in nature to the charged offenses”; and
(2) the details of the incident were “uniquely inflammatory.”

Although the majority characterizes the funeral incident conduct as
“analogous to” the charged crimes, we agree with the trial court that comparing
the funeral incident with the charged incidents “reveals that while they are
similar in kind, they are dissimilar in degree.” As the trial court reasoned, the
funeral incident included “a grazing of the breast and squeezing of the
buttocks, events [the victim] later described as not ‘a big deal,’” while the
charged incidents were “far more serious.” The charged incidents included the
defendant “engaging in digital penetration of [the victim] and having [her] touch
his penis.”

We likewise disagree with the majority that the details of the “unique
context of the incident” — the defendant’s stepfather’s funeral — would “likely
. . . appeal to a juror’s sense of resentment or outrage.” At the pretrial hearing
on the motion in limine, defense counsel argued that the context of the
evidence was prejudicial because “in the middle of grieving his step-father’s
passing, the jury is going to be told that . . . [the defendant is] grabbing
someone’s breast and someone’s buttocks.” The trial court observed, however,
that “much of what we know about this funeral” came not from evidence but
from defense counsel making statements into the record.

Furthermore, the trial court acknowledged that the State had agreed to
limit the information about the funeral incident by not discussing the fact that
the funeral was for someone in the defendant’s family but simply presenting
that it was a funeral. Thus, the court explained, “the State is not going to elicit
testimony as to whose funeral it was and why it might be so awful,” as the
defendant had suggested, but rather the testimony would be limited to how the
defendant and the victim “just happened to be at a funeral at the same time . .
. and this incident . . . happened.” Under these circumstances, the defendant’s
argument on appeal that the trial court’s ruling would allow “testimony that he

9
sexually assaulted a child at the public funeral of his own stepfather” is not
supported by the pretrial record.

In its narrative order following the hearing, the trial court determined
that, because the “two sets of acts are dissimilar in degree,” that reduced the
potential for unfair prejudice. In addition, the court found that while there was
“some risk” the funeral incident would have a prejudicial effect, the court
intended to issue an appropriate limiting instruction to “diminish or eliminate
the danger of unfair prejudice.” (Quotation omitted.) Accordingly, the court
directed the parties to “submit either a joint proposed instruction or competing
proposed instructions to the Court for its review at least thirty (30) days prior
to the start of jury selection.” It appears that the parties failed to comply, and
that, at trial, the defendant never asked the court to give a limiting instruction.
Thus, the defendant cannot now complain that no such instruction was given.
See State v. Hunter, 132 N.H. 556, 561 (1989) (“It is the obligation of counsel to
request instructions limiting the scope of evidence.”).

Therefore, we disagree with both reasons posited by the majority in
support of its conclusion that the funeral incident evidence posed a great
danger of unfair prejudice. The trial court is in the best position to gauge the
prejudicial impact of particular testimony, and what steps, if any, are
necessary to remedy that prejudice. State v. Clark, 174 N.H. 586, 590 (2021).
Accordingly, we give the trial court broad latitude when ruling on the
admissibility of potentially unfairly prejudicial evidence. Id. Because the
record establishes an objective basis sufficient to sustain the discretionary
decision made, the trial court’s ruling is not clearly untenable or unreasonable,
and we would uphold it. State v. Roy, 167 N.H. 276, 284 (2015); State v.
Thomas, 168 N.H. 589, 602 (2016).

Although the defendant also argues that he was denied effective
assistance of counsel, that claim has not yet been heard in the trial court. We
have emphasized that “ineffectiveness claims are almost always to be resolved
in the first instance by the trial court in a collateral proceeding.” State v.
Thompson, 161 N.H. 507, 532 (2011). Contrary to the defendant’s contention,
this is not a rare case in which such a proceeding is unnecessary. Accordingly,
we would decline to decide this issue without prejudice to the defendant’s
ability to raise it in a collateral proceeding in the trial court.

For the reasons set forth above, we respectfully dissent.

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