STATE v. FLEMING, 119 N.H. 245 (1979)

400 A.2d 1172

THE STATE OF NEW HAMPSHIRE v. PATRICK FLEMING

No. 78-245Supreme Court of New Hampshire Merrimack District Court
Decided April 13, 1979

1. Evidence — Past Offenses — Admissibility Evidence of a prior offense may be admissible when introduced as an element in the crime.

2. Evidence — Past Offenses — Issue of Prejudice Issue of prejudice raised in defendant’s motion to dismiss because

Page 246

complaint included prior conviction as an element of the offense, as required by statute, was improperly transferred in advance of trial, since no prejudice would result to the defendant in trial before district court without jury and in view of fact that if defendant is convicted and appeals to the superior court he may there take such steps, such as stipulations, to guard against any alleged prejudice that may result from the jury’s being informed of the prior offense.

Thomas D. Rath, attorney general (Peter W. Mosseau orally), for the State.

Wiggin Nourie, of Manchester (Stephen J. Patterson orally), for the defendant.

PER CURIAM.

Defendant was charged with driving under the influence of intoxicating liquor, second offense, in violation of RSA 262-A:62. He moved to dismiss on the ground of prejudice because the complaint, as required by the statute, included the prior conviction as an element of the offense.

[1, 2] The questions raised by defendant’s motion were transferred in advance of trial without ruling by Michael, S.J. This issue should not have been transferred in advance of trial. State v. Doyle, 117 N.H. 789, 378 A.2d 1379 (1977). Evidence of a prior offense may be admissible when introduced as “an element in the crime,” State v. Labranche, 118 N.H. 176, 178, 385 A.2d 108, 109 (1978); see Spencer v. Texas, 385 U.S. 554 (1967). No prejudice will result to the defendant in a trial before the district court without a jury. State v. Aubert, 118 N.H. 739, 393 A.2d 567 (1978). If defendant is convicted and appeals to the superior court, he may there take steps, such as stipulations, to guard against any alleged prejudice that may result from the jury’s being informed of the prior offense. See generally ABA STANDARDS FOR TRIAL BY JURY 4.4 (Approved Draft, 1968); cf. Novosel v. Helgemoe, 118 N.H. 115, 384 A.2d 124 (1978) (trial bifurcation); State v. Barker, 117 N.H. 543, 374 A.2d 1179 (1977) (limiting instruction regarding evidence of prior offense).

Remanded for trial.

Page 247