State of New Hampshire v. Michael Bates

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0396, State of New Hampshire v. Michael
Bates, the court on November 18, 2020, issued the following
order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
defendant, Michael Bates, appeals his conviction following a jury trial on one
count of securities fraud. See RSA 421-B:5-501(a)(2) (2015); RSA 421-B:3, I(b)
(Supp. 2015) (repealed 2016).1 On appeal, he challenges: (1) the sufficiency of
the evidence to support his conviction; (2) the trial court’s admission of a
transcript of an interview with the defendant; and (3) the trial court’s
admission of evidence pertaining to a prior securities fraud investigation and
settlement agreement. We affirm.

The jury could have found the following facts. In 2013, the victim
became acquainted with the defendant, who coached the victim’s son’s
basketball team. The defendant and the victim had a friendly relationship. On
at least one occasion, the victim, who owns an air conditioning and heating
company, serviced furnaces at the defendant’s home and business.

On October 21, 2015, the victim and the defendant saw each other at a
local retail store, where they both happened to be shopping that day. The
defendant was shopping for items to sell through his company, which primarily
involved purchasing products and re-selling them online. The defendant and
the victim had a brief discussion in which he told the victim “all about his
business and how much money he was making.”

Later that day, the victim received a text message from the defendant
with an offer to invest in his company, stating, “we are taking one more silent
capital partner / $50k[.] [I]f you have $15/$25/$40 I’ll let you buy in.” The
defendant represented that the company would be bringing in $500,000 to
$600,000 in online sales by January 2016, and that, if the victim invested
$50,000, he would receive dividend checks of $25,000 to $40,000 per month in
twelve months. The victim, believing that the “silent capital partner” referred to
him, told the defendant that he was “def[initely] interested.” Although the

1 The legislature repealed and replaced RSA 421-B:3 with RSA 421-B:5-501, effective January

2016. See Laws 2015, 273:1, :28. The charged activity spanned from October 1, 2015, to March
1, 2016, but the relevant statutory language in the two statutes is identical.
victim had never owned a membership interest or stock in any company, he
was under the impression that the defendant “had a couple businesses and . . .
was making good money,” and thus found the offer enticing. The victim based
his assessment of the defendant’s financial success upon his observations that
the defendant and his wife owned nice cars, had a large house, and dressed
nicely.

During this time, the defendant was in settlement negotiations with the
New Hampshire Bureau of Securities Regulation (BSR), which had found,
following an investigation, that he had committed civil securities fraud in
connection with an unrelated sale of securities to two investors. The defendant
did not disclose the investigation when he made the investment offer to the
victim.

On October 23, the defendant again texted the victim inquiring about his
commitment and the amount he sought to invest. The victim replied that he
was “def[initely] on board.” Later that day, the defendant informed the victim
by text message that he had created a business e-mail address for him and
drafted a contract. He further stated, “To make it clean / I fronted your
$50 . . . [s]o as of tomorrow you are all in.” The victim took this statement to
mean that the defendant had invested $50,000 on the victim’s behalf, which
the victim wanted to pay as soon as possible so he could begin receiving a
return on his investment.

The defendant and the victim signed a one-page investment contract on
October 24, and the victim made his first payment in the amount of $20,000
on October 26, by check made out to “TSG LLC,” the name of the defendant’s
company. On October 30, the victim made a subsequent payment of $5,000.

On November 2, the defendant asked the victim, by text message, when
he planned to make his next payment, and indicated that he would inform his
bookkeeper. The victim responded that he would have the next payment in a
couple of weeks. On November 11, the defendant told the victim that “Karen
(bookkeeper) asked what the payment plan is,” and that she was “by the book.”
The victim told the defendant that he would most likely pay the defendant
$5,000 to $10,000 per month. On November 26 and December 7, the victim
made payments of $5,000 and $2,500, respectively.

The defendant had multiple bank accounts, including personal accounts
in his name and accounts in the names of various entities that he managed or
in which he had the sole signing authority. When he received the victim’s
checks, the defendant did not consistently deposit the checks in the company
account, but rather deposited them into multiple accounts. He also frequently
transferred money between the accounts. As a result, the victim’s money
became commingled with other funds, which the defendant withdrew or spent
on expenses unrelated to the company. For example, on October 30, the

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defendant paid $2,000 — as part of a private settlement agreement with an
individual who had invested in a Florida property owned by the defendant (the
Florida settlement) — from the same account into which he had deposited the
victim’s first two checks.

On December 8, the defendant informed the victim by text message that
he told “[T]ony [the] bookkeeper” that the victim would be fine with a payment
schedule of $10,000 on January 28 and $5,000 on February 28. He added, “I
just want you done before March [be]cause that’s when we [are] doing the buy
in from [an] investor.” The victim responded that the schedule “should be fine.”
On January 21, 2016, the victim made a payment of $5,000. Approximately
two days later, the defendant entered into a settlement agreement with the BSR
for $50,000.

On February 17, the defendant asked the victim about his upcoming
$10,000 payment, noting that he had to “submit paperwork” before March 1.
On February 26, the victim made a payment of $10,000. On February 29, after
the defendant deposited the victim’s February 26 check, the defendant
provided a check from the same account to the BSR in an amount of $10,000
as payment toward the amount he owed under the settlement agreement.

Throughout this period, the defendant and the victim communicated
frequently and, on occasion, the victim met with the defendant to assist him
with purchases and product development. The victim continued to believe that
the defendant was “making a lot of money” and that the business “was on the
up and up.” However, despite his investment, the victim never received any
payments from the company in return. Eventually, in June, the victim learned
from the defendant’s wife that the defendant was not being truthful with him.
The victim subsequently met with the defendant, who showed him that the
company had only $19,000 in its bank account. The victim demanded that the
defendant return his money, which the defendant failed to do.

In August 2016, the BSR received an anonymous tip that the defendant
had defrauded the victim. The BSR initiated an investigation, and in January
2017, BSR attorneys conducted an interview with the defendant. During the
interview, the defendant admitted that there were no other silent capital
partners in the business at the time of his investment offer to the victim, he
had not fronted the victim $50,000, he did not have a bookkeeper during the
time that the victim invested in the company, and no investor had committed
to buy into the company in March 2016.

The defendant was indicted on one count of theft by deception, see RSA
637:4 (2016), and two counts of securities fraud, see RSA 421-B:3, I(b). One
count of securities fraud alleged that he purposely omitted the material fact
that he was under investigation by the BSR when he proposed an investment
opportunity to the victim. The other count of securities fraud alleged that the

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defendant purposely made at least one of four untrue statements of material
fact in connection with his investment offer: (1) there was at least one other
silent partner involved in the investment; (2) he had “fronted” the victim’s
initial investment; (3) his bookkeeper had inquired about the timing of the
victim’s remaining investment payments; and (4) the victim needed to complete
his investment by March before a “buy in” occurred with another investor.

Prior to trial, the State moved to admit evidence of the prior BSR
investigation, arguing that it was intrinsic to the crimes charged or,
alternatively, evidence of motive, absence of mistake, and knowledge. The trial
court granted the motion over the defendant’s objection. The State also moved
in limine to admit the transcript of the BSR’s January 2017 interview of the
defendant. The defendant did not object to the State’s introduction of the
defendant’s statements, but objected to the admission of the entire transcript,
arguing that it would confuse and mislead the jury. At a hearing on the
motion, the trial court indicated that it would review the transcript and make a
decision based upon the parties’ arguments. At trial, the transcript was
admitted without an express ruling on the defendant’s objection.

At the close of the State’s case, the defendant moved for a directed
verdict, which the trial court denied. The jury found the defendant guilty of
securities fraud for making untrue statements of material fact. The jury found
him not guilty of theft by deception and securities fraud for omitting a material
fact. Following trial, the defendant moved for judgment notwithstanding the
verdict, which the trial court also denied. This appeal followed.

I. Sufficiency of the Evidence

We turn first to the defendant’s challenge to the sufficiency of the
evidence. To prevail upon a challenge to the sufficiency of the evidence, the
defendant must demonstrate that no rational trier of fact, viewing all the
evidence and all reasonable inferences drawn from it in the light most favorable
to the State, could have found guilt beyond a reasonable doubt. State v. Leith, 172 N.H. 1, 11 (2019). A challenge to the sufficiency of the evidence raises a
claim of legal error; therefore, our standard of review is de novo. Id. We
objectively review the entire record and examine each evidentiary item in the
context of all the evidence, and not in isolation. State v. Saintil-Brown, 172
N.H. 110, 117 (2019). The defendant has the burden of demonstrating that the
evidence was insufficient to prove guilt. Id.

When the evidence as to one or more elements of the charged offense is
solely circumstantial, a defendant challenging sufficiency must establish that
the evidence does not exclude all reasonable conclusions except guilt. Id. The
proper analysis is not whether every possible conclusion consistent with
innocence has been excluded, but, rather, whether all reasonable conclusions
consistent with innocence have been excluded. Id. Regardless of whether the

4
evidence is solely circumstantial or involves both direct and circumstantial
evidence, we consider it in the light most favorable to the State. Id. at 118.

The defendant argues that the State failed to present sufficient evidence
to prove that any of the four untrue statements of fact were material beyond a
reasonable doubt. Specifically, he argues that, because the evidence at trial
demonstrates that the victim did not actually rely upon the untrue statements
in deciding to invest in the defendant’s company, the evidence was insufficient
to prove that the statements were material. He contends, therefore, that the
trial court erred in denying his motions for directed verdict and judgment
notwithstanding the verdict.

To convict the defendant of securities fraud, the State was required to
prove that the defendant, “in connection with the offer, sale, or purchase of a
security,” willfully made an “untrue statement of a material fact.” RSA 421-
B:5-501(a)(2), :5-508(a) (2015); RSA 421-B:3, I(b), :24, I (2006) (repealed 2016).
Although we have never addressed the evidence necessary to prove whether a
statement is “material” in the context of securities fraud, both parties rely upon
the standard applied by federal courts, which the trial court articulated in its
jury instructions. See United States v. Litvak, 889 F.3d 56, 64 (2d Cir. 2018).
Accordingly, for purposes of this appeal, we will rely upon federal law in
determining whether the State presented sufficient evidence to prove that the
defendant’s untrue statements were material.

“A misstatement in a securities transaction is material so long as there is
a substantial likelihood that a reasonable investor would find the
misrepresentation important in making an investment decision.” Id. (quotation
and ellipsis omitted). “The standard of a ‘reasonable investor,’ like the
negligence standard of a ‘reasonable [person],’ is an objective one.” Id.
Whether the facts of a particular case meet this standard is for the trier of fact
to determine. See U.S. S.E.C. v. Pirate Investor LLC, 580 F.3d 233, 240 (4th
Cir. 2009). The “materiality of an alleged misrepresentation or omission must
be considered in the full context in which it was made,” Okla. Firefighters Pen.
& Ret. Sys. v. K12, Inc., 66 F. Supp. 3d 711, 714 (E.D. Va. 2014), and
“necessarily depends on all relevant circumstances of the particular case,”
Ganino v. Citizens Utilities Co., 228 F.3d 154, 162 (2d Cir. 2000).

At trial, the victim testified that, regardless of the defendant’s untrue
statements, he was going to invest. Specifically, he testified that he believed
that the “silent capital partner” in the defendant’s text message referred to him,
not to another investor. Furthermore, he testified that, at the time that the
defendant informed him that the defendant had fronted him $50,000, he was
already “all-in,” and that he was going to invest “regardless of the bookkeeper.”
The victim also agreed that, regardless of the March 1 deadline provided by the
defendant, he was trying to make the payments “as fast as possible.” Based
upon this testimony, the defendant argues that the victim did not consider the

5
defendant’s untrue statements to be important to his decision to invest in the
company.

However, because materiality is based upon an objective standard, a
“finding of materiality does not require proof of actual reliance.” Litvak, 889
F.3d at 65 (quotation omitted); see also United States v. Vilar, 729 F.3d 62, 67
(2d Cir. 2013) (“[T]he government need not prove that the victims of a
fraudulent scheme actually relied on the alleged material misrepresentations.”).
“Materiality requires proof only that a reasonable investor would deem the
content of a misstatement a substantial factor to be considered in the making
of the particular investment decision.” Litvak, 889 F.3d at 65. Thus, “proof of
harm is not necessary . . . so long as materiality, intent to defraud, and a
connection to a securities transaction are shown.” Id.

Nevertheless, the defendant contends that “the only evidence the State
presented on the issue of materiality was the testimony of the actual investor,”
the victim. Therefore, he argues, the State could not meet its burden of proof.
We disagree. The evidence at trial reflects that, at the time the defendant made
the investment offer to the victim and solicited payments, the victim had
limited knowledge of the company and its finances, which was based only upon
the defendant’s representations of the company’s business model and financial
success. The victim was not provided access to any financial documentation
pertaining to the company. The jury could have readily determined that a
reasonable investor with similarly limited knowledge of the defendant’s
business would find at least one of the misrepresentations here — the
existence of at least one other investor in the company, the defendant’s ability
to front $50,000 to bring in another investor, the company’s employment of a
bookkeeper who kept close track of investors’ payments, and the scheduled
“buy in” from yet another investor — to be important in determining whether
the business was a legitimate and financially successful operation that would
be a lucrative investment. See S.E.C. v. E-Smart Technologies, Inc., 74 F.
Supp. 3d 306, 312, 318, 320 (D.D.C. 2014) (concluding that, where a company
falsely publicized that it secured profitable contracts, investors would
“undoubtedly” find the existence or non-existence of such contracts important);
S.E.C. v. StratoComm Corp., 2 F. Supp. 3d 240, 257 (N.D.N.Y. 2014)
(concluding that statements falsely portraying a development-stage company as
having progressed to the operational stage were material because they related
to whether the company “has a product to sell and a viable business model”).

We conclude, based upon the record, that a rational jury could
determine, beyond a reasonable doubt, that a reasonable investor would deem
the content of at least one of the four untrue statements to be a substantial
factor in considering whether to invest in the company. Accordingly, the trial
court did not err in denying the defendant’s motions for a directed verdict and
judgment notwithstanding the verdict. In reaching this conclusion, we make
no comment on whether, in other factual circumstances, additional evidence,

6
such as expert testimony, may be necessary to prove that a reasonable investor
would find a particular false statement material beyond a reasonable doubt.
See Litvak, 889 F.3d at 64-65 (explaining that the “reasonable investor”
standard “may vary” depending on “the nature of the traders involved in the
particular market”).2

II. Evidentiary Challenges

We now address the defendant’s challenges to the trial court’s evidentiary
rulings. We review a challenge to an evidentiary ruling of the trial court under
our unsustainable exercise of discretion standard. State v. Colbath, 171 N.H.
626, 632 (2019). For the defendant to prevail under this standard, he must
demonstrate that the trial court’s decision was clearly untenable or
unreasonable to the prejudice of his case. Id. In applying our unsustainable
exercise of discretion standard of review, we determine only whether the record
establishes an objective basis sufficient to sustain the discretionary judgment
made. Id. Our task is not to determine whether we would have found
differently, but is only to determine whether a reasonable person could have
reached the same decision as the trial court on the basis of the evidence before
it. Id. at 632-33.

A. Admission of BSR Transcript

We begin with the defendant’s challenge to the admission of the
transcript of the BSR interview. The defendant contends that the trial court
erred as a matter of law or, alternatively, unsustainably exercised its
discretion, because it failed to review the transcript or make a ruling on the
defendant’s objection before admitting the transcript at trial. While he
concedes that limited portions of the transcript containing specific admissions
made by him were admissible as a statement of a party opponent, the
defendant contends that, had the trial court reviewed the transcript and
conducted the proper analyses under Rules 403 and 801, it would have
excluded much of the transcript. He identifies several excerpts of the
transcript that the trial court should have excluded as unfairly prejudicial or as
inadmissible hearsay. See N.H. R. Ev. 403, 801(c).

The State contends that the defendant’s argument is not preserved
because he did not request the trial court to exclude specific portions of the
transcript, nor did he base his argument for exclusion of the transcript on the
grounds he now articulates on appeal. We agree.

2 We further observe that the defendant has made no argument that a material false statement

must be made prior to the victim’s decision to invest, rather than during the course of his
investment, to support a conviction under RSA 421-B:5-501(a)(2). Therefore, we do not address
this issue.

7
 The defendant, as the appealing party, has the burden to demonstrate
that he “specifically raised the arguments articulated in [his] brief before the
trial court.” Dukette v. Brazas, 166 N.H. 252, 255 (2014). “The general rule in
this jurisdiction is that a contemporaneous and specific objection is required to
preserve an issue for appellate review.” State v. Edic, 169 N.H. 580, 583 (2017)
(quotation omitted). “This rule, which is based on common sense and judicial
economy, recognizes that trial forums should have an opportunity to rule on
issues and to correct errors before they are presented to the appellate court.”
Id. (quotation omitted). “A motion in limine is sufficient to preserve an issue for
appeal without objection at trial if the trial court definitively rules upon the
issue prior to trial.” Laramie v. Stone, 160 N.H. 419, 431 (2010).

In his written objection to the State’s motion in limine to admit the
transcript, the defendant argued that, while “the State can introduce
statements by the defendant during trial, . . . introducing the entire transcript
will confuse and potentially mislead the jury in violation of [R]ule 403.” At the
hearing on the State’s motion, the State provided the 153-page transcript to the
court, and the defendant again argued that portions of it should be excluded to
avoid confusing or misleading the jury. When the court asked him to identify
specific excerpts, he pointed to the first few pages in which the BSR attorney
made routine introductory statements to the defendant. Upon further inquiry
from the court, he stated that there were other “similar comments . . . peppered
through the transcript; nothing in particular that I can outline.”

The court stated that, because it had not yet reviewed the transcript, it
would take the matter under advisement. It stated:

[I]f the Court reads it and finds that the probative value of
admitting this is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or
anything further that’s listed in [Rule] 403 — including undue
delay, waste of time, [and] needless presentation of cumulative
evidence, the Court would keep it out. I haven’t heard argument
with regard to that; I’ve heard argument about confusing the jury
and misleading the jury. So I will review it and . . . make a
decision on it, keeping in mind the arguments that have been
presented to me today.

The defendant then requested that the court exclude a specific portion of
the transcript regarding the Florida settlement, arguing that it was not
relevant, “could be construed as a prior bad act,” and was “more prejudicial
than probative.” The court denied the defendant’s request, finding that it was
relevant to show that the defendant used the victim’s money to provide a

8
payment on that settlement agreement, but did so without prejudice to allow
him to “reargu[e] it, if there’s something more that comes . . . to mind.”3

When the State sought to admit the transcript at trial, the defendant
indicated that he was unsure whether the court had made a ruling on his
objection. The trial court stated that it thought it had, but that it would look
through the file. The defendant responded, “I’ll just maintain my original
objection then.” Immediately thereafter, the court admitted the transcript
without any further discussion.

Based upon the record before us, we conclude that the defendant’s
argument is not preserved. The defendant did not identify to the trial court the
specific portions of the transcript that he now identifies on appeal. Nor did he
raise the grounds for excluding those portions that he now raises. Rather, he
argued to the trial court that excerpts “peppered through[out]” the transcript
should be excluded under Rule 403 because they could potentially confuse or
mislead the jury, only specifically identifying one portion of the 153-page
transcript as an example, which is not at issue in this appeal. While the
defendant faults the trial court for failing to “surgically extract[]” the admissible
portions of the transcript “with a scalpel,” we fail to see how the trial court
could have done so when the defendant did not specifically identify the
portions of the 153-page transcript that he deemed inadmissible. Because the
defendant failed to raise the specific objections to clearly identified portions of
the transcript that he raises on appeal, the trial court did not have an
opportunity to rule on them, regardless of whether it definitively ruled on the
grounds that the defendant articulated at trial.

The defendant contends that his argument is preserved, pointing
specifically to the trial court’s comments at the motion hearing: “if the
Court . . . finds that the probative value of admitting [the transcript] is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or anything further that’s listed in [Rule]
403 . . . , the Court would keep it out.” Based upon this language, he argues,
“Whether defense counsel used talismanic language to preserve the argument
is irrelevant where, as here, the trial court clearly viewed defense counsel to
have raised the issue.” We fail to see how the trial court’s recitation of the
principles of Rule 403 demonstrates that it believed the defendant to have
raised the specific argument he raises on appeal. Again, in the absence of the
defendant’s identification of the specific portions of the transcript that he
identifies on appeal, and the specific arguments he now articulates for their
exclusion, the trial court had no opportunity to consider them. Indeed, after

3 We do not understand the defendant to be appealing this particular ruling because he does

not challenge it in his brief nor did he raise it in his notice of appeal. See State v. Blackmer, 149 N.H. 47, 49 (2003) (“[W]e confine our review to only those issues that the defendant has
fully briefed” and raised in his notice of appeal).

9
making this statement, the trial court immediately noted, “I’ve heard argument
about confusing the jury and misleading the jury,” and indicated that it would
rule on the motion in light of the specific arguments made by the parties.

The defendant argues that, even if his argument is not preserved, the
trial court committed plain error in admitting the transcript. The plain error
rule allows us to consider errors that were not raised in the trial court. State v.
Pennock, 168 N.H. 294, 310 (2015). To reverse a trial court decision under the
plain error rule: (1) there must be an error; (2) the error must be plain; (3) the
error must affect substantial rights; and (4) the error must seriously affect the
fairness, integrity or public reputation of judicial proceedings. Id.

The defendant contends that the plain error committed by the trial court
was that it failed to read the transcript when considering whether to admit it
under Rule 403. He asserts that the discussion at trial “made clear that the
trial court had not reviewed the transcript between the [motion in limine]
hearing and trial because [the court] erroneously thought [it] had already
ruled” on its admissibility. He contends that other courts have held “that it is
plain error for a court to fail to review challenged evidence when considering
whether it should be admitted under Rule 403,” and urges us to follow them.
See, e.g., United States v. Curtin, 489 F.3d 935, 958 (9th Cir. 2007) (en banc)
(holding that a trial court, as a matter of law, does not properly exercise its
balancing discretion under Rule 403 when it fails to “personally examine and
evaluate all that it must weigh”).

The defendant, however, fails to demonstrate that the trial court did not
read the transcript prior to its admission, and therefore cannot meet the first
criterion — that the trial court committed error. In each of the federal cases
the defendant identifies, the record contained express admissions from the
court that it had not reviewed the proffered evidence prior to ruling on its
admissibility. See United States v. Cunningham, 694 F.3d 372, 379-80, 383
(3d Cir. 2012); United States v. Loughry, 660 F.3d 965, 970 (7th Cir. 2011);
Curtin, 489 F.3d at 956, 956-57 n.8. Nothing in the record before us
demonstrates that the trial court had not read the transcript prior to admitting
it. Thus, we cannot conclude that the trial court committed error on this
ground.

B. Admission of Evidence of Prior BSR Investigation

We next address the defendant’s challenge to the trial court’s admission
of evidence of the prior BSR investigation. The defendant argues that the trial
court unsustainably exercised its discretion in admitting evidence of the
underlying conduct at issue in the prior BSR investigation and settlement
agreement based solely upon the State’s offers of proof in its written motion to
admit the evidence. Noting that “neither party provided the court with a copy
of the settlement agreement or a transcript of discussions between [the

10
defendant] and the BSR,” he argues that the trial court erred in granting the
State’s motion without reviewing the evidence the State sought to admit.

The State’s motion sought to admit evidence of the prior BSR
investigation on two grounds: (1) as intrinsic evidence of an element — the
material omission — of one securities fraud indictment; and (2) as evidence
admissible under Rule 404(b) “to prove motive, knowledge, and absence of
mistake.” The State did not specify whether the evidence it sought to admit
consisted of documentary evidence in addition to testimony. However, it
outlined the underlying facts at issue in the investigation — specifically, that
the BSR found that the defendant had made several false material
misrepresentations and omissions in soliciting approximately $48,835 in
investments from two individuals as part of an “investment club,” and that he
had lost all of the money and paid less than $1,200 in dividends. The motion
also compared the timing of the settlement negotiations, the agreement, and
the defendant’s $10,000 payment to the BSR with that of his solicitation of the
victim’s investment and receipt of his payments.

The trial court, specifically noting that it rendered its ruling based upon
the State’s offer of proof, granted the State’s motion, finding, in part, that the
evidence was “highly relevant” to show the defendant’s “knowledge of the
industry,” absence of mistake, and motive to obtain financial investment from
the victim, and therefore outweighed any unfair prejudice. The court further
observed that it made this ruling “in a bit of a vacuum since neither party
provided the Court with a copy of the settlement agreement or a transcript of
discussions between Defendant and Bureau personnel,” and therefore
permitted the defendant to provide a specific objection if he “believes particular
statements of Defendant should be excluded.” The defendant did not move to
reconsider or further object to the admissibility of the evidence prior to or
during trial.

As an initial matter, we observe that, based upon the record before us,
the State did not introduce the settlement agreement itself into evidence at
trial. Moreover, we cannot identify any transcript or other documentation from
the prior BSR investigation in the record. The record reflects only that the
State presented evidence of the investigation and settlement agreement
through the testimony of the BSR attorney and statements in the January
2017 transcript. Accordingly, to the extent that the defendant challenges the
trial court’s ruling as it relates to the admission of the settlement agreement
itself or any other documentation from the prior BSR investigation, no such
documents were presented to the jury.

Furthermore, the defendant made no objection to the trial court’s
consideration of the State’s offer of proof. Indeed, given that neither party
supplied the trial court with any documentation to supplement or challenge the
State’s offer of proof, the offer of proof provided the only facts upon which the

11
trial court could base its ruling. The trial court specifically recognized the
limited set of facts it had before it by permitting the defendant to raise more
specific objections. Thus, the trial court did not unsustainably exercise its
discretion in relying upon the offer of proof in rendering its decision on the
State’s motion.

The defendant further challenges the merits of the trial court’s decision
under Rules 403 and 404(b). He argues that the State’s argument, which the
trial court adopted — that the facts underlying the investigation and settlement
agreement were relevant to prove motive, knowledge of the industry, and
absence of mistake — was a “thinly disguised” propensity argument. See N.H.
R. Ev. 404(b)(2)(A). Further, he contends that there was no “clear proof” that
he committed the alleged acts because he made no admission of fault in the
settlement agreement. See N.H. R. Ev. 404(b)(2)(B). He also argues that the
risk that the jury would use the evidence for propensity purposes outweighed
its minimal probative value, noting that the State could have admitted the
relevant portions of the evidence — the timing of the investigation and the
existence of the settlement agreement — without detailing the underlying facts.
See N.H. R. Ev. 403, 404(b)(2)(C).

We conclude that the defendant failed to preserve these arguments. In
his objection to the State’s motion, he argued that the evidence was not
relevant because the investigation and underlying events occurred prior to the
events underlying the charged crimes in this case. While he made the general
argument that the State sought to use the evidence to prove his propensity to
commit the charged crimes, the defendant did not address any of the three
grounds under Rule 404(b) upon which the State sought, and the trial court
relied, to admit the underlying facts of the investigation. Nor did he argue that
the settlement agreement fails to prove that the defendant actually committed
the acts described therein. Nor did he suggest to the trial court, as he does
here, that it could avoid any undue prejudice to him by limiting the evidence to
the timing of the investigation and existence of the settlement agreement.
Thus, the trial court did not have the opportunity to rule on the arguments he
now raises on appeal. See Edic, 169 N.H. at 583.

Furthermore, we note that, when the State introduced evidence of the
prior investigation and settlement agreement at trial through the BSR
attorney’s testimony and January 2017 transcript, the defendant made no
specific objection. Similarly, while the defendant contends that the unfair
prejudice was especially significant “in the absence of a limiting instruction,”
nothing in the record demonstrates that the defendant requested that the trial
court include such an instruction. See State v. Sinbandith, 143 N.H. 579, 581
(1999) (explaining that a defendant waives his right to a specific jury
instruction unless the request is timely made). Accordingly, the defendant’s
objection prior to trial is insufficient to demonstrate that he preserved these
arguments on appeal.

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 Any arguments the defendant raised in his notice of appeal, but did not
brief, are deemed waived. See State v. Barr, 172 N.H. 681, 694 (2019).

Affirmed.

HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.

Timothy A. Gudas,
Clerk

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