## Facts

- David W. Kirsch, a church youth leader, was charged with multiple sexual offenses against three girls occurring roughly between 1984 and 1987 in connection with church-related activities and sleepovers.
- At trial, the State presented testimony from the three complainants named in the indictments.
- The State also called three additional women who testified that Kirsch had sexually abused them in the late 1970s and early-to-mid 1980s in similar church-linked contexts.
- The trial court admitted the additional-witness testimony under New Hampshire Rule of Evidence 404(b) to show motive, intent, and a common plan or scheme.
- In 1990, police obtained and executed a search warrant for Kirsch’s home seeking items such as pornographic materials and nude photographs; the affidavit alleged abuse over several years and use of pornographic movies and nude photos.
- A jury convicted Kirsch of aggravated felonious sexual assault and felonious sexual assault.

## Issues

1. Whether a search warrant issued about six years after the most recent charged conduct lacked probable cause due to staleness.
2. Whether testimony about uncharged sexual assaults was admissible under N.H. R. Ev. 404(b) for motive, intent, or common plan/scheme, rather than as propensity evidence.
3. Whether the trial court erred in denying a mistrial based on the admission of the other-acts testimony.

## Decision

- The Supreme Court of New Hampshire held the search warrant was supported by probable cause; the lapse of time did not, by itself, make the information stale given the alleged continuing conduct and the type of items sought.
- The court held the trial court abused its discretion by admitting the other-acts sexual-assault testimony under Rule 404(b) because it operated as impermissible propensity evidence.
- The court reversed Kirsch’s convictions and remanded for a new trial; the State did not argue harmless error.

## Legal Principles

- Staleness is assessed functionally, considering the nature of the criminal activity, the nature of the items sought, and the likelihood the items would remain in the suspect’s possession; no fixed time limit controls.
- Other-acts evidence is inadmissible when offered to show character and action in conformity with that character, but may be admitted for a specific non-character purpose (e.g., motive, intent, plan) if properly supported.
- The proponent of Rule 404(b) evidence bears the burden to identify the precise permissible evidentiary purpose and show logical relevance to a genuinely disputed issue, not merely a pattern suggesting the defendant is the type of person who commits such acts.
- Even if offered for a permissible purpose, other-acts evidence must be excluded when its probative value is substantially outweighed by the danger of unfair prejudice under Rule 403, particularly where the evidence is highly inflammatory.

## Conclusion

The court upheld the warrant despite a multi-year delay because the affidavit supported a reasonable inference that the sought materials would be retained, but it ordered a new trial because the admission of additional sexual-assault allegations was not tied to a concrete non-propensity purpose and carried a substantial risk of unfair prejudice.


State v. Kirsch, 139 N.H. 647, 662 A.2d 937 (N.H. 1995)