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When intent is not conceded by the defense, and it is an element of the crime, it is sufficiently at issue to require evidence at trial.

“The basis of the excited utterance exception rests with the spontaneity and impulsiveness of the statement; thus, the startling event does not have to be the actual crime itself, but rather may be a related occurrence that causes such a reaction.” State v. Pepin, 156 N.H. 269, 274 (2007) (quotation omitted).

State v. Pepin, 156 N.H. 269, 275-79 (2007) (analyzing a verbal threat under Rule 404(b)); State v. Richardson, 138 N.H. 162, 164-68 (1993) (analyzing defendant’s collective statements and behavior shortly before and after the charged offense under Rule 404(b)); People v. Ventimiglia, 420 N.E.2d 59, 63 (N.Y.

When, as in this case, the defendant does not concede intent and intent is an element of the crime to be proved by the State, intent “is sufficiently at issue to require evidence at trial.” State v. Pepin, 156 N.H. 269, 279 (2007) (quotation omitted).

State v. Pepin, 156 N.H. 269, 279 (2007) (“When intent is not conceded by the defense, and it is an element of the crime to be proven by the State, it is sufficiently at issue to require evidence at trial.” (quotation omitted)).

“To qualify as an excited utterance, 5 the statement must be a spontaneous verbal reaction to some startling or shocking event, made at a time when the speaker was still in a state of nervous excitement produced by that event and before [s]he had time to contrive or misrepresent.” State v. Pepin, 156 N.H. 269, 274 (2008) (quotation omitted).

State v. Pepin, 156 N.H. 269, 275-79 (2007) (analyzing a verbal threat under Rule 404(b)).

A motion in limine is sufficient to preserve an issue for appeal without an objection at trial if the trial court definitively rules on the issue before trial.” State v. Pepin, 156 N.H. 269, 275 (2007) (citation omitted).

“To qualify as an excited utterance, the statement must be a spontaneous verbal reaction to some startling or shocking event, made at a time when the speaker was still in a state of nervous excitement produced by that event and before she had time to contrive or misrepresent.” State v. Pepin, 156 N.H. 269, 274 (2007) (quotation and brackets omitted).

Indeed, the trial court specifically instructed the jury that the fact the defendant had been arrested or indicted could not be considered as evidence of the defendant’s guilt, and we presume that the jury followed such instructions.

Assuming that the text messages constituted “statements,” rather than prior “bad acts,” but see, e.g., State v. Pepin, 156 N.H. 269, 275-79 (2007) (analyzing verbal threat under Rule 404(b)), we conclude that the “controlling behavior” evidence nonetheless consisted of intertwined statements and actions subject to analysis under Rule 404.

While the timing of the statement is only one factor to be considered, State v. Pepin, 156 N.H. 269, 274-75 (2007), the admissibility of statements made five days following a startling event runs directly contrary to our prior case law, see State v. Woods, 130 N.H. 721, 726 (1988) (statements made by seven-year-old child a day after an alleged sexual assault allowed “simply too much time for reflective thought”).

For example, in State v. Pepin, 156 N.H. 269 (2007), the defendant was charged with, among other crimes, attempted murder and first degree assault.

Under these circumstances, we conclude that the issue is not preserved for our review, and we decline to address it.

“Particularly pertinent to determining this balance is whether the evidence is relevant to prove an issue that is actually in serious dispute.” State v. Pepin, 156 N.H. 269, 278-79 (2007).

We review the trial court’s admission of evidence pursuant to Rule 404(b) for an unsustainable exercise of discretion.

“To be relevant to intent, evidence of other bad acts must be able to support a reliable inference, not dependent on the defendant’s character or propensity, that the defendant had the same intent on the occasions of the charged and uncharged acts.” State v. Pepin, 156 N.H. 269, 277 (2007) (quotations omitted).

The defendant was convicted of first degree assault, second degree assault and criminal restraint.

We review the trial court’s decision for an unsustainable exercise of discretion.

In a challenge to the sufficiency of the evidence, the defendant must prove that no rational trier of fact, viewing the evidence in the light most favorable to the State, could have found guilt beyond a reasonable doubt.

Additionally, we assume the jury followed the trial court’s instructions, see State v. Pepin, 156 N.H. 269, 279 (2007), and, accordingly, that in finding the defendant guilty, the jury found that he and the victim did not jointly acquire the heroin.

For these reasons, we conclude that the defendant has failed to preserve the issue for our review.

Thus, in contrast to sufficiency where we determine whether a rational juror could have found guilt, State v. Pepin, 156 N.H. 269, 281 (2007), a verdict conclusively against the weight of the evidence is “one no reasonable jury could return,” Mullin v. Joy, 145 N.H. 96, 96 (2000) (emphasis added).