Cited by

See, e.g., State v. Preston, 121 N.H. 147, 151 (1981); see also ABA Standards for Criminal Justice: Prosecution and Defense Function, Standard 3-1.2 (3d ed. 1993).

Lake, 125 N.H. at 822-23; State v. Preston, 121 N.H. 147, 151 (1981).

“A public prosecutor differs from the usual advocate in that his duty is to seek justice, not merely to convict[, and the] prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.” State v. Preston, 121 N.H. 147, 151 (1981) (quotations and brackets omitted).

Finally, the defendant argues that the prosecutor’s comments impermissibly appealed to the sympathies of the jurors.

II The State contends that the defendant did not object to the adequacy of the trial court’s curative instructions, and, therefore, the issue is not preserved for appeal.

See, e.g., State v. Bujnowski, 130 N.H. 1, 532 A.2d 1385 (1987) (prosecutor professed to jury his personal opinion of the guilt of the defendant); State v. Preston, 121 N.H. 147, 427 A.2d 21 (1981) (prosecutor argued to jury facts not in evidence); State v. LaBranche, 118 N.H. 176, 385 A.2d 108 (1978) (State testified about untried indictment pending against defendant).

To obtain a conviction for aggravated felonious sexual assault, the State has an affirmative obligation to prove beyond a reasonable doubt that the victim did not consent.

Furthermore, the role of a prosecutor differs from that of the usual advocate in that a prosecutor’s “duty is to seek justice, not merely to convict.” State v. Preston, 121 N.H. 147, 151, 427 A.2d 32, 34 (1981) (quoting ABA Code of Professional Responsibility, EC 7-13).

The defendant next contends that the prosecutor’s closing argument constituted prosecutorial misconduct which prejudiced the defendant’s right to a fair trial.

At this point, we reiterate the warning set forth in State v. Preston, 121 N.H. 147, 151, 427 A.2d 32, 34 (1981): “We.

We assume that jurors followed the court’s instructions.

However, a “public prosecutor ‘differs from the usual advocate [in that] his duty is to seek justice, not merely to convict.’ ” State v. Preston, 121 N.H. 147, 151, 427 A.2d 32, 34 (1981) (quoting ABA Code of Professional Responsibility, EC 7-13 (1980)).

We are convinced that any error was harmless beyond a reasonable doubt.

State v. Preston, 121 N.H. 147, 150, 427 A.2d 32, 34 (1981); State v. Novosel, 120 N.H. 176, 186, 412 A.2d 739, 746 (1980).

State v. Preston, 121 N.H. 147, 150, 427 A.2d 32, 34 (1981); State v. Novosel, 120 N.H. 176, 186, 412 A.2d 739, 746 (1980).

Although we believe that the testimonial reference to an *784 inadmissible fact was harmless beyond a reasonable doubt in this case, we would nevertheless caution prosecutors to take all such steps as are necessary to prepare their witnesses in advance of trial to prevent the presentation, in the presence of a jury, of facts excluded by pretrial order.

*161 State v. Preston, 121 N.H. 147, 150, 427 A.2d 32, 34 (1981); State v. Novosel, 120 N.H. 176, 186, 412 A.2d 739, 746 (1980).

“This argument is without merit.” State v. Preston, 121 N.H. 147, 152, 427 A.2d 32, 35 (1981).