Criminal Law

An associate with Ford & McPartlin in Portsmouth, NH

No. 2017-0712
January 8, 2019

  • Whether there was legal error in admitting certain evidence of uncharged conduct into evidence and allowing two witnesses to testify about defendant’s statements regarding his victim’s appearance.

Defendant George J. Colbath had initiated sexual conduct with his stepdaughter since she was in the eighth grade. Defendant was convicted of 17 charges of aggravated felonious sexual assault following a six-day jury trial.

During the trial, the court admitted into evidence, over the defendant’s objection, the victim’s aunt’s testimony that the defendant had made comments regarding the victim’s appearance and build. The court also admitted into evidence, over defendant’s objection, the defendant’s adult son’s testimony that the defendant had made comments about the victim’s body. The trial court admitted the testimony for the limited purpose of allowing the jury to assess defendant’s mental state and intent. The court specifically instructed the jury not to use these statements as evidence to infer that he committed the acts charged on the indictments or to judge character. The Court also admitted into evidence other bad acts defendant had committed. Defendant was eventually convicted of 17 charges of aggravated felonious sexual assault. This appeal followed.

On appeal, defendant argued that the trial court erred in allowing the two witnesses to testify about statements he allegedly made about victim’s appearance. The defendant argued that this evidence was not relevant to show intent and rather introduced prejudice. The court found that the trial court did not err in admitting this testimony as it was used with limiting instructions to prove the defendant’s mental state and intent to commit the crimes.

The defendant also argued that the Court erred in admitting evidence of certain uncharged conduct pursuant to New Hampshire Rule of Evidence 404(b). The Court found that the evidence of the incidents was legally admissible. Under New Hampshire Rule of Evidence 404(b), evidence of other bad acts may only be admitted if the evidence can be proven to be relevant for use other than judgment of character, can be proven to be true, and can be proven to have value that surpasses the danger of presenting prejudice against the defendant. The other bad acts admitted satisfied Rule 404(b) and were relevant in demonstrating intent for the crime at trial. The convictions were affirmed.


Gordon J. MacDonald, attorney general (Heather A. Cherniske, attorney), for the State. Mark L. Sisti, Sisti Law Offices, Chichester, for the defendant