Cited by

understand that this case was not the story of a loving father who unimaginably snapped under formidable circumstances.” [¶36] We conclude that the evidence of other assaults of the victim during the time the family was homeless was intrinsic to the second degree murder charge, in part because that conduct “was an essential part of the course of conduct leading to the charged” offense.

[¶21] Because this testimony is extrinsic evidence, it should have been analyzed under Rule 404(b).

Unfair prejudice is not mere detriment to a defendant from the tendency of the evidence to prove guilt, in which sense all evidence offered by the prosecution is meant to be prejudicial.

State v. Wells, 166 N.H. 73, 78 (2014) (reasoning that the challenged testimony “described an act that was inextricably intertwined with the charged offense because the acts were ‘part of a single criminal episode,’” and the evidence “was necessary to complete the story of the charged sexual intercourse” (citation omitted)); Nightingale, 160 N.H

A mistrial is appropriate when the circumstances indicate that justice may not be done if the trial continues to a verdict.

The rule, “‘by its very terms, excludes only extrinsic evidence — evidence of other crimes, wrongs, or acts — whose probative value exclusively depends upon a forbidden inference of criminal propensity.’” State v. Wells, 166 N.H. 73, 77 (2014) (quoting United States v. Epstein, 426 F.3d 431, 439 (1st Cir. 2005)).

The victim testified at trial “providing specific details about the individual assaults.” State v. Wells, 166 N.H. 73, 83 (2014).

To perform the balancing required by Rule 403, we first consider the probative value of the evidence.

To perform the balancing required by Rule 403, we first consider the probative value of the affidavit.

“A mistrial is appropriate only if the evidence or comment complained of was not merely improper, but also so prejudicial that it constituted an irreparable injustice that cannot be cured by jury instructions.” State v. 5 Russo, 164 N.H. 585, 589 (2013) (quotation omitted); see State v. Wells, 166 N.H. 73, 76 (2014) (“A mistrial is appropriate when the circumstances indicate that justice may not be done if the trial continues to a verdict.” (quotation omitted)).

We have distinguished between “extrinsic” evidence of other crimes, wrongs, or acts, which is governed by Rule 404(b), and “intrinsic” evidence, which is not.

Thus, the trial court concluded that the uncharged acts were not “[e]vidence of other crimes, wrongs, or acts” for purposes of Rule 404(b), but instead constituted res gestae evidence subject only to review under New Hampshire Rule of Evidence 403.

“An error is harmless only if it is determined, beyond a reasonable doubt, that the verdict was not affected by the error.” State v. Wells, 166 N.H. 73, 82 (2014) (quotation omitted).

State v. Wells, 166 N.H. ___, ___, 89 A.3d 156, 160 (2014) (holding that where trial court improperly struck evidence that was properly admissible, “the defendant achieved more than he was entitled to secure and consequently cannot complain of the trial justice’s failure to declare a mistrial for the attempted introduction of such evidence” (quotation and brackets