State v. Smith , 141 N.H. 271 ( 1996 )

Thayer, J.,

concurring specially: This case again highlights the different views held by members of this court concerning what types of evidence are relevant under New Hampshire Rule of Evidence 404(b). Although I concur in the result reached in the opinion of Justice Johnson, I write separately to explain why I believe the trial court correctly held that the defendant’s prior convictions were relevant.

The defendant was charged with two counts of passing bad checks. See RSA 638:4 (1986 & Supp. 1993) (amended 1993). His criminal record included nineteen prior convictions for similar offenses. At trial, in an effort to prove that the defendant knowingly committed the crimes charged, the prosecutor read into evidence all of the defendant’s prior convictions. In each case, the prosecutor referred to the specific crime charged and in most cases also referred to the date of the conviction and the location of the offense. With three of the prior convictions, the prosecutor mentioned that the bank on which the bad checks were drawn was the same bank involved in this case.

As early as 1876, we held that this type of evidence could be relevant. State v. Lapage, 57 N.H. 245 (1876). In Lapage, we explained that when a defendant is charged with a crime involving counterfeit money, proof that the defendant previously engaged in similar conduct is relevant to demonstrate that he knowingly did so again. We reasoned:

It might well happen that a person might have in his possession a single counterfeit bill or coin without knowing it to be such; but he would be much less likely to do so twice, and every repetition of such an act would increase the probability that he knew that the bills or coins were counterfeit.

Id. at 293-94. The reasoning in Lapage applies with equal force in this case. The fact that the defendant wrote bad checks in the past makes it more likely that he knowingly wrote the bad checks at issue here because his prior experience would have made him aware of his financial circumstances and less likely to unintentionally write a check on a closed account. Cf. State v. Anderson, 912 P.2d 801, 804 (Mont. 1996) (evidence of prior conviction for bad check offense relevant under Rule 404(b) on issue of intent). The rules of relevance require no greater connection between the charged conduct and the prior bad acts. See N.H. R. Ev. 401; State v. McGlew, 139 N.H. 505, 507, 658 A.2d 1191, 1193 (1995).

A majority of this court holds that the defendant’s prior convictions should have been excluded from evidence because “the prosecutor [introduced the convictions] . . . without stating whether any of them involved the account at issue in this case.” That majority apparently believes that for the prior offenses to be relevant, they must have involved the same account as the one at issue here. It does not offer reasons to justify that limitation; nor does it attempt to distinguish our prior case law. See Lapage, 57 N.H. at 293-94.

In addition to believing that the defendant’s prior convictions were relevant, I also believe the other two prongs of the Rule 404(b) analysis were met. State v. Bassett, 139 N.H. 493, 496, 659 A.2d 891, 894 (1995). Accordingly, I would affirm the trial court’s ruling that the prior convictions were admissible under Rule 404(b).

HORTON, j., joins in the special concurrence.