State v. Montgomery

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-northern judicial district
Case No. 2024-0304
Citation: State v. Montgomery, 2026 N.H. 24

THE STATE OF NEW HAMPSHIRE

v.

ADAM MONTGOMERY

Argued: October 15, 2025
Opinion Issued: June 11, 2026

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Sam M. Gonyea, assistant attorney general, on the brief and orally), for
the State.

Pamela E. Phelan, senior assistant appellate defender, of Concord, on the
brief and orally, for the defendant.

GOULD, J.

¶1 The defendant, Adam Montgomery, appeals his convictions, following
a jury trial in Superior Court (Messer, J.), of second degree murder, see RSA
630:1-b, I(b) (2016), second degree assault, see RSA 631:2, I(d) (2016),

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falsifying physical evidence, see RSA 641:6, I (2016), witness tampering, see
RSA 641:5, I(a) (2016), and abuse of a corpse, see RSA 644:7 (2016) (amended
2023). We affirm in part, reverse in part, and remand.

I. Statement of Facts

¶2 The jury could have found the following facts. The defendant was
the biological father of the victim, Harmony Montgomery. In February 2019,
the victim went to live with the defendant and his wife, Kayla Montgomery, at
the defendant’s grandmother’s home in Manchester. In July 2019, when the
first charged offense occurred, the victim was five years old. The other
occupants of the home at that time included the defendant’s uncle and the two
biological children of the defendant and Kayla; both of those children were
younger than the victim.

¶3 The defendant’s uncle returned home in July from a three-week trip
and saw the victim in the kitchen with a black eye. The uncle asked the victim
what she had done and the defendant answered, “She didn’t do anything. I
bashed her around the f**king house.” The uncle testified that the defendant
said “he put [the victim] in charge to watch” her five-month-old brother while
the defendant used the bathroom and when the defendant returned, he found
the victim with her hands over the baby’s mouth and “his lips were supposedly
blue.”

¶4 On November 27, 2019, the defendant’s family was evicted from the
home in Manchester. The defendant, Kayla, and the three children began
living in their car, which they parked at a friend’s apartment complex in
Manchester. Although the victim was toilet trained before she was three years
old, she started to have accidents once the family began living in the car.
When the victim had an accident, the defendant became angry and would hit
her in the face or on her leg or hand. The defendant became angrier the more
accidents the victim had and would then hit her repeatedly.

¶5 On December 7, 2019, the victim had an accident early in the
morning and the defendant repeatedly punched her in the head. Later that
morning, the family drove to a methadone clinic where Kayla and the defendant
took turns going inside while the other stayed in the car with the children.
When the defendant returned to the car, he realized the victim had had another
accident and started yelling at her and hitting her in the head repeatedly.

¶6 From the methadone clinic, the defendant drove the family to Burger
King. While they were driving, the victim was in the back seat crying and
making a strange, moaning-like noise. The defendant told the victim to shut
up, and at each red light at which they stopped, the defendant reached back
and repeatedly punched the victim in the head. The defendant stopped hitting

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the victim when they got to Burger King. With the final punch, he said in a
scared voice that he felt something and thought he really hurt her this time.

¶7 Later that day, the family’s car broke down at a traffic light and they
had to abandon it. As the defendant and Kayla were getting the children out of
the car, the victim did not respond and they realized she had died. The
defendant got a duffel bag from the trunk, put the victim’s body in it, and
brought it back to the friend’s apartment complex, where the defendant put it
in a snow bank.

¶8 Following the loss of their car, the family stayed in a friend’s car,
then with Kayla’s mother, and then, from December 30 through February 20,
at the Families in Transition (FIT) shelter in Manchester. The defendant
brought the duffel bag containing the victim’s body to each place where they
stayed. At FIT, the defendant put the duffel bag in the ceiling vent in their
room. When the victim’s body began to smell and leak fluid, the defendant put
the body into garbage bags which he then stuffed into a diaper bag. The
defendant worked at a restaurant at that time and would store the bag in the
restaurant’s freezer while he was there.

¶9 The family moved from FIT to an apartment in Manchester. There,
the defendant kept the victim’s body in the apartment’s freezer. The defendant
began discussing getting rid of the victim’s body and devised a plan to
dismember her and use lime, which he believed would hasten decomposition of
the body.

¶10 On February 26, the defendant withdrew cash from an ATM and
purchased lime, an angle grinder, a blade, and a battery. At some point
thereafter, the defendant thawed the victim’s body in the bathtub at the
apartment and had Kayla help remove the victim’s clothing. The defendant
had a large bag of lime and spent several hours in the bathroom with the
victim’s body. When the defendant was finished, he put the victim’s body back
in the diaper bag and put the bag back in the freezer.

¶11 On March 3, the defendant and Kayla stayed at an Econo Lodge
with a friend of the defendant and the friend’s girlfriend. The defendant had
asked the friend to rent a U-Haul for him because “he needed to move stuff.”
That evening, the friend arranged the rental. Back at the hotel, the friend and
the defendant went outside to smoke a cigarette and the defendant began
pacing back and forth, repeating “I f**ked up.”

¶12 The defendant left the hotel in the U-Haul in the middle of the
night. He took the diaper bag containing the victim’s body with him and
returned without it, telling Kayla he “got rid of her.”

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[¶13] After the defendant killed the victim, he began telling people that he
had returned the victim to her mother in Massachusetts after Thanksgiving in
2019. The victim’s mother, however, had not seen the victim since April 2019.
Thereafter, the victim’s mother tried to contact the defendant and Kayla but
was unsuccessful. By December 2021, the victim’s mother had reached out to
state and local agencies and officials to try to find her daughter. At that point,
law enforcement became involved in the search for the victim.

¶14 The defendant was indicted on one count of each of the following
offenses: second degree murder, second degree assault for having struck the
victim in July of 2019, falsifying physical evidence, and witness tampering. He
was also charged by criminal complaint with abuse of a corpse. The defendant
filed an assented-to motion to join the charges for trial, which the court
granted. Subsequently, however, the defendant moved to sever the second
degree assault charge from the other charges after receiving a Zwicker letter1
from the State “imparting information from Kayla Montgomery that marks a
substantial departure from her prior statements.” The trial court denied the
motion.

¶15 The defendant also filed a number of motions in limine which, as
relevant to this appeal, included motions to exclude: (1) evidence that he
prevented the victim’s mother from seeing the victim; (2) evidence of his abuse
and neglect of the victim other than the charged conduct; and (3) evidence of
his encounter with the police on December 31, 2021. The trial court denied
the defendant’s motion with respect to interference with the victim’s mother’s
attempts to see the victim. With respect to the remaining two categories of
challenged evidence, each motion was granted in part and denied in part; while
the court limited what the State could introduce, it declined to exclude all of
the evidence in each challenged category.

¶16 The defendant was tried before a jury in February 2024. In his
opening statement, the defendant’s counsel told the jury that it “can and
should find [the defendant] guilty” of falsifying physical evidence and abuse of a
corpse. He asserted, however, that the defendant committed those crimes to
protect Kayla, who “was the last person to see [the victim] alive and know how
[she] died.” He contended that the victim did not die during the day on
December 7 but during the previous night while the defendant “was running
around trying to make money to get them out of their situation” and Kayla was
alone in the car with the children. He told the jury that it would not hear
truthful testimony from Kayla and that “[t]he only reason she has to lie and

1 While based loosely on State v. Zwicker, 151 N.H. 179 (2004), the term “Zwicker letter” has come
to have a colloquial meaning in New Hampshire criminal practice. It refers in this instance to the
State’s written disclosure of newly discovered evidence that was not included in the State’s
disclosures under New Hampshire Rule of Criminal Procedure 12(b)(1).

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point the finger at [the defendant] is because the truth points the finger at her.”
The jury returned guilty verdicts on all charges. This appeal followed.

II. Analysis

A. Severance

¶17 The defendant first argues that the trial court erred in denying his
request to sever the second degree assault charge from the other charges. “The
trial court’s decision to join or sever charges is discretionary; we will affirm its
ruling unless the decision constitutes an unsustainable exercise of discretion.”
State v. Girard, 173 N.H. 619, 623 (2020). “To succeed on appeal, the
defendant must demonstrate that the ruling was clearly untenable or
unreasonable to the prejudice of his case.” Id.

¶18 New Hampshire Rule of Criminal Procedure 20 governs the joinder
of criminal offenses and distinguishes between related and unrelated charges.
See N.H. R. Crim. P. 20. It provides that “[i]f a defendant is charged with two
or more related offenses, either party may move for joinder of such charges.
The trial judge shall join the charges for trial unless the trial judge determines
that joinder is not in the best interests of justice.” N.H. R. Crim. P. 20(a)(2).
By contrast, unrelated charges may be joined “only upon written motion of the
defendant or with the defendant’s written consent, and ‘upon a showing that
failure to try the charges together would constitute harassment or unduly
consume the time or resources of the parties.’” State v. Brown, 159 N.H. 544,
549 (2009) (quoting identically-worded prior Superior Court Rule 97-A(I)(C));
see N.H. R. Crim. P. 20(a)(3).

¶19 The defendant argues that the trial court erred in finding that the
charges were “related” for purposes of Rule 20. Alternatively, he argues that
even if the charges were related, “the court should have severed them in the
interests of justice.” We need not address the defendant’s first argument
because we conclude that the best interests of justice required severance of the
charges. As a threshold matter we note that neither party argues that the best
interests of justice prong of the joinder analysis must be based on the evidence
before the trial court at the time of its pretrial ruling. Accordingly, we do not
confine our best interests inquiry to the pretrial record. Cf. Brown, 159 N.H. at
556 (considering the defendant’s arguments that were based, in part, on trial
events where the State did “not contest whether trial events may be relevant to
our review of the trial court’s pretrial decision on joinder”).

¶20 Under the best interests of justice standard, “charges should be
tried separately whenever it is deemed appropriate to promote a fair
determination of the defendant’s guilt or innocence — in essence, when

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conducting a single trial would jeopardize the defendant’s right to a fair trial.”
State v. Rivera, 175 N.H. 496, 502 (2022) (quotations and brackets omitted).
“In making a best interests of justice determination, trial courts must evaluate
whether, in view of the number of offenses charged and the complexity of the
evidence to be offered, the trier of fact will be able to distinguish the evidence
and apply the law intelligently to each offense.” Id. (quotations omitted). The
best interests of justice determination may also entail consideration of other
factors, including whether:

some charges are likely to unusually inflame the jury against the
defendant; the evidence in support of some offenses is weak while
the proof of others is strong; the defendant’s available defenses for
different crimes are inconsistent; or the defendant wishes to testify
as to one offense but not as to others.

Id.

¶21 The defendant argues that joining the charges gave rise to a risk
that the jury would use evidence of the July assault “for an improper propensity
purpose” when considering the second degree murder charge. He notes that
Kayla’s testimony provided the only direct evidence that he fatally struck the
victim and asserts that Kayla had significant credibility deficits. Specifically, he
contends that evidence undermining Kayla’s credibility “included her felony
perjury convictions for lying to the grand jury, her prior criminal history, . . .
her other criminal conduct that the State agreed not to prosecute her for in
exchange for her testimony,” as well as “numerous self-serving and inconsistent
statements about what happened in December 2019 and thereafter.”

¶22 By contrast, the defendant argues, “the State’s case on the July
2019 charge was strong and rested on testimony from several witnesses
without such credibility issues.” The defendant contends:

Because the charges involved the allegations that [the defendant]
struck [the victim] with his fist at different times, places, and
contexts, there was a substantial risk that a jury hearing the
strength of the State’s case on the July 2019 charge would draw the
improper inference that he similarly struck her in December and
thus dismiss any doubts it might have had as to his guilt on the
homicide charge.

¶23 We agree that the State’s case on the second degree assault charge
was strong. Three witnesses testified to observing the victim with a black eye
in July 2019. Four witnesses, including two who observed the victim’s black
eye, testified that the defendant admitted striking the victim. Although two of
the admissions were made near the time of the assault and two were made

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years later, each witness testified to a consistent explanation given by the
defendant: that he hit the victim because he saw her with her hand over the
baby’s mouth, suffocating him.

¶24 As to the homicide charge, only Kayla’s testimony directly
implicated the defendant in the victim’s death. The State disputes, however,
that the evidence on that charge was weak, arguing that “so much of what
Kayla said was corroborated by physical evidence that it was easy to credit the
parts of her testimony that lacked such corroboration.” Specifically, the State
contends: (1) Kayla’s testimony that the defendant stored the victim’s body in
the ceiling of their room at FIT was corroborated by DNA and fingerprint
evidence taken from that ceiling; (2) Kayla’s testimony that the defendant
stored the bag containing the victim’s body in the freezer at work was
corroborated by two of the defendant’s coworkers who testified that they saw
the defendant entering or leaving the restaurant’s walk-in cooler with a bag;
(3) Kayla’s testimony that the defendant planned to dismember the victim’s
body and accelerate its decay with lime was corroborated by evidence that a
$500 cash withdrawal was made from Kayla’s joint bank account 22 minutes
before a nearly $400 cash purchase of items including a bag of lime and an
angle grinder was made at a nearby Home Depot; and (4) Kayla’s testimony
that on the night she, the defendant, the defendant’s friend, and the friend’s
girlfriend stayed at an Econo Lodge, the defendant used a U-Haul to dispose of
the victim’s body was corroborated by testimony of the friend, his girlfriend,
and the person who rented the U-Haul. This evidence, however, supports only
Kayla’s testimony about the defendant’s actions after the victim’s death; it
does not corroborate Kayla’s testimony that the defendant killed the victim on
December 7 by repeatedly punching her in the head. It is also not
inconsistent with the defendant’s theory of defense — namely that Kayla
caused the victim’s death and the defendant helped her cover up her crime.

¶25 As additional evidence supporting Kayla’s testimony that the
defendant, rather than she, killed the victim, the State cites the defendant’s
friend’s testimony that the defendant paced outside the Econo Lodge repeating
“I f**ked up” and another friend’s testimony that in 2021, the defendant told
her that he hated the victim “right to his core” because she reminded him of
her mother. This evidence does support the proposition that the defendant
displayed a consciousness of guilt for something he had done and that more
than a year after the victim’s death the defendant had profound animus toward
the victim. It does not, however, corroborate Kayla’s account of the victim’s
death. As compared to the evidence of multiple disinterested witnesses
substantiating the July assault, the evidence of the December 7, 2019 fatal
attack is substantially weaker. We therefore conclude that this disparity
created a significant risk that the jury would rely on the strength of the
evidence that the defendant struck the victim in anger in July to conclude that,
as Kayla testified, he similarly — and fatally — struck the victim in December.

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See Brown, 159 N.H. at 555 (noting that “the State may gain an unfair
advantage if a weak case is joined with a strong case: the joint trial of offenses
creates a significant risk that the jury will convict [a] defendant upon the
weight of the accusations or upon the accumulated effect of the evidence”
(quotation omitted)).

¶26 The State contends that there was no such risk because evidence of
the July assault was presented separately, the offenses were discussed
separately in the State’s closing, and the jury was instructed to consider each
indictment separately and not let a verdict of guilty or not guilty on one of the
indictments influence its verdict on the other indictments. The State argues
that “[t]hese cautionary statements are significant, since juries are presumed to
follow the instructions of the trial court.” State v. Manna, 130 N.H. 306, 310
(1988). This argument is predicated on a more sanguine view of the efficacy of
instructions to overcome prejudice than our decisional law supports. It also
overlooks the misalignment of the instruction with the specific risk created by
the denial of the motion to sever.

¶27 It is true that “[w]e generally presume that jurors follow the trial
court’s instructions.” State v. Mason, 150 N.H. 53, 63 (2003). Nevertheless,
we have recognized that there are circumstances in which that presumption is
outweighed by the “likelihood of prejudice in that the jury could have found the
defendant guilty of one . . . charge[] based at least in part upon the evidence
regarding the other . . . charge[].” Id. at 62-63 (concluding that error in joining
charges was not harmless). Here, as the case was presented at trial, the jury
was asked to determine which of the two adults who were with the victim on
December 6 and 7, 2019 — the defendant or Kayla — killed her. While the jury
heard no evidence that Kayla had ever physically assaulted the victim, it heard
evidence from multiple witnesses that the defendant physically assaulted the
victim in July 2019. Thus, there was a significant risk that the jury would
draw the impermissible inference that because the defendant assaulted the
victim before by striking her in the head, he must be the one who fatally
assaulted her in December by again striking her in the head. See Bean v.
Calderon, 163 F.3d 1073, 1083 (9th Cir. 1998) (concluding that joinder of
charges arising from separate incidents allowed the jury to draw an
impermissible inference of criminal propensity which “in turn, allowed the jury
to rely upon” evidence in the stronger case “to strengthen the otherwise weak
case” on other offenses). We conclude that, under these circumstances, trying
the second degree assault and second degree murder charges in a single trial
jeopardized the defendant’s right to a fair trial. See Rivera, 175 N.H. at 502.

¶28 We do not agree with the State’s contention that the trial court’s
instruction was sufficient to counteract the risk of prejudice to the defendant
arising from trying the two charges jointly. The instruction said only that the
jury must consider each indictment separately and that its verdict on one
indictment could not influence its verdict on another. Nothing in the

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instruction, however, told the jurors that they were prohibited from considering
the evidence admitted on one charge when reaching their verdict on another.
The instruction, then, left the jury free to consider evidence of the defendant’s
assault on the victim in July when deliberating on the second degree murder
charge.

¶29 The State asks that we attribute significance to the defendant’s
initial motion for joinder. The State asserts that the argument the defendant
advances now was available to him when he made that motion and argues that
the defendant “does not explain on appeal how any of the items in the State’s
Zwicker letter altered the analysis of that issue.” The State contends that if the
defendant’s trial counsel “could reasonably conclude that joinder under the
circumstances was proper and in his client’s strategic interest, it is difficult to
see how a trial court’s ruling one way or the other later in time could be clearly
untenable or unreasonable to the prejudice of [the defendant’s] case,” and
therefore an unsustainable exercise of discretion. Whatever the persuasive
force of these arguments in the abstract, the State conceded before the trial
court that even if the Zwicker letter provided no new information, the
defendant had the right to withdraw his assent to joinder prior to trial and was
entitled to a fresh consideration of whether joinder was in the best interests of
justice. Accordingly, the State disclaimed in the trial court the very argument
it makes on appeal. We will not consider on appeal an argument waived in the
trial court. See Milliken v. Dartmouth-Hitchcock Clinic, 154 N.H. 662, 669-70
(2006). Having determined that joinder of the charges jeopardized the
defendant’s right to a fair trial, we conclude that the trial court unsustainably
exercised its discretion in failing to sever them. See Rivera, 175 N.H. at 502.

¶30 The State nevertheless argues that even if the trial court erred by
failing to sever the charges, the error was harmless. “To establish harmless
error, the State must prove beyond a reasonable doubt that the error did not
affect the verdict.” State v. Rouleau, 176 N.H. 400, 407, 2024 N.H. 2, ¶20; see
Mason, 150 N.H. at 62 (applying harmless error standard to erroneous joinder
of offenses). “To determine whether the State has proven beyond a reasonable
doubt that an error did not affect the verdict, we must evaluate the totality of
the circumstances at trial.” Rouleau, 176 N.H. at 407, 2024 N.H. 2, ¶20.

The factors that we consider in assessing whether an error
did not affect the verdict include, but are not limited to: (1) the
strength of the State’s case; (2) whether the admitted or excluded
evidence is cumulative or inconsequential in relation to the
strength of the State’s case; (3) the frequency of the error; (4) the
presence or absence of evidence corroborating or contradicting the
erroneously admitted or excluded evidence; (5) the nature of the
defense; (6) the circumstances in which the evidence was
introduced at trial; (7) whether the court took any curative steps;
(8) whether the evidence is of an inflammatory nature; and (9)

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whether the other evidence of the defendant’s guilt is of an
overwhelming nature.

Id. at 407-08, 2024 N.H. ¶21. “No one factor is dispositive.” Id. at 408,
2024 N.H. ¶21. “We may consider factors not listed above, and not all
factors may be implicated in a given case.” Id.

¶31 The parties agree that the State’s case on the July 2019 assault
charge was strong and rested on testimony from several witnesses without the
credibility deficits that Kayla had. We conclude that the failure to sever the
second degree murder charge from the second degree assault charge did not
affect the verdict on the latter charge. Cf. Tabish v. State, 72 P.3d 584, 592,
594 (Nev. 2003) (concluding that joinder of charges was improper where “the
State’s weaker case on [some charges] was bolstered by combining it with the
stronger case” on other, so-called “Casey counts,” but concluding that “[g]iven
the strong and more than substantial evidence presented” on the Casey counts,
“improper joinder was harmless beyond a reasonable doubt as it relates to [the
defendant’s] conviction on those counts”). Because we conclude that any error
with respect to the second degree assault charge was harmless beyond a
reasonable doubt, we affirm the defendant’s conviction on that charge.

¶32 The State argues that any error with respect to joinder was also
harmless as to the second degree murder charge because the “State’s case and
the evidence of the defendant’s guilt [were] overwhelming.” For the reasons
discussed above, we disagree. The “overwhelming” evidence cited by the State
— “eyewitness testimony, testimony corroborative of the eyewitness, DNA,
fingerprints, receipts, and the list goes on” — related to the uncontested
charges of falsifying physical evidence and abuse of a corpse. By contrast, only
Kayla’s testimony directly implicated the defendant in the victim’s death, and
evidence that the defendant stated that he hated the victim “right to his core”
and that he “f**ked up” are far from overwhelming evidence that he killed the
victim. Cf. Mason, 150 N.H. at 62 (concluding misjoinder was not harmless
where “the evidence was not overwhelming as to any particular offense” and
the case was “dependent upon witness credibility”). This is not a case,
moreover, in which the jury found the defendant guilty on some counts and not
guilty on others, which could have constituted “compelling evidence that the
jury considered the charges separately and was not influenced by evidence of
the other alleged [offenses].” State v. Cossette, 151 N.H. 355, 358 (2004). We
conclude that the misjoinder of offenses was not harmless as to the homicide
charge. Accordingly, we reverse the defendant’s conviction of second degree
murder.

B. Other Act Evidence

¶33 We address the defendant’s remaining arguments because they are
likely to arise again on remand. The defendant next argues that the trial court

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erred in admitting evidence of certain prior and subsequent bad acts as
intrinsic to the charged offenses. Specifically, he challenges the admission of
evidence that he “punched [the victim] in the two weeks prior to December 7,
2019,”2 and that he prevented the victim’s mother from having contact with the
victim throughout the ten months preceding the victim’s death. “We review the
trial court’s ruling on the admissibility of evidence for an unsustainable
exercise of discretion, and will reverse only if it was clearly untenable or
unreasonable to the prejudice of the defendant’s case.” State v. Papillon, 173
N.H. 13, 24 (2020).

¶34 New Hampshire Rule of Evidence 404(b) prohibits the admission of
evidence of a person’s other bad acts for the purpose of establishing the
person’s propensity to act in accordance with character traits inferred from the
other acts. N.H. R. Ev. 404(b). “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.” State v. Thomas, 168 N.H. 589, 598
(2016). “Other act evidence is ‘intrinsic,’ and therefore not subject to Rule
404(b), when the evidence of the other act and the evidence of the crime
charged are ‘inextricably intertwined’ or both acts are part of a single criminal
episode or the other acts were necessary preliminaries to the crime charged.”
Id. (quotation omitted). “Intrinsic or inextricably intertwined evidence will have
a causal, temporal, or spatial connection with the charged crime.” Rouleau,
176 N.H. at 406, 2024 N.H. 2, ¶15 (quotations omitted). “Typically, such
evidence is a prelude to the charged offense, is directly probative of the charged
offense, arises from the same events as the charged offense, forms an integral
part of a witness’s testimony, or completes the story of the charged offense.”
Id.

¶35 The defendant argues that “[t]he December 7, 2019 homicide did
not depend in any way on the alleged abuse and neglect that previously
occurred or on whether [he] blocked [the victim’s mother’s] contact with [the
victim] beginning in April 2019.” Testimony on those matters, the defendant
argues, “was not essential to providing an intelligent and coherent description
of what occurred on December 7.” The State counters, with respect to the prior

2 In its order on the defendant’s motions in limine, the trial court ruled that the State could
introduce “evidence of the defendant’s conduct and [the victim’s] condition in the two weeks
leading up to, and including, November 29, 2019, and between November 29, 2019 and December
7, 2019” — a period of approximately three weeks. At trial, however, the only direct evidence
introduced by the State of the defendant’s striking the victim during this period was Kayla’s
testimony that after the family began living in their car on November 27, 2019, the defendant
would hit the victim when she was incontinent in the car. On appeal, the defendant argues that
the trial court “erred in admitting as ‘intrinsic’ evidence that [he] punched [the victim] in the two
weeks prior to December 7, 2019.” Given the difference between this time period and the three-
week period referenced in the trial court’s order, and in light of the evidence actually admitted at
trial, we understand the defendant to be challenging only the admissibility of evidence that he
struck the victim subsequent to the family’s eviction on November 27, 2019. We express no
opinion on the trial court’s ruling with respect to any time before that date.

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abuse and neglect evidence, that the “trial court correctly ruled that this
evidence was ‘part and parcel’ of the crimes charged, understanding that
‘events do not occur in a vacuum.’” It contends that the challenged evidence
“completed the story of [the victim’s] murder, which cannot be fully understood
solely by recounting the events of December 7, 2019.” In particular, the State
argues that the evidence “allowed the fact finder to see the full picture and
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. State v. Wells, 166 N.H. 73, 78 (2014).
The defendant concedes that this evidence “bore an arguable temporal and
spatial connection to the charged act[]” but argues that “the requisite factual
connection was lacking.” See Papillon, 173 N.H. at 25 (noting that while
challenged statements by the defendant bore “an arguable ‘temporal
connection’ to the charged” offenses, “without a sufficient underlying factual
nexus, these statements are merely coincidental to the charged offenses”). We
disagree.

¶37 In its objection to the defendant’s motion to preclude this evidence,
the State noted — albeit in the context of its Rule 404(b) analysis — that “the
prior conduct involved the same victim, an identical mechanism of assault (i.e.
the defendant[’s] punching and/or striking [the victim’s] face), and occurred
under similar circumstances (i.e., in response to [the victim’s] being
incontinent in the defendant’s vehicle).” The challenged evidence described
events that were “a prelude to the charged offense” and “complete[d] the story
of the charged offense.” Rouleau, 176 N.H. at 406, 2024 N.H. 2, ¶15. “This
type of evidence is admissible under the rationale that events do not occur in a
vacuum, and the jury has a right to hear what occurred immediately prior to
and subsequent to the commission of the charged act so that it may
realistically evaluate the evidence.” Id. Evidence of the prior assaults “gave the
jury a more complete understanding of the alleged crime and better enabled
the jurors to assess the likelihood that the charged [crime] occurred.” Wells,
166 N.H. at 80 (discussing intrinsic evidence’s probative value under a New
Hampshire Rule of Evidence 403 analysis). Accordingly, the trial court did not
unsustainably exercise its discretion in admitting this evidence as intrinsic to
the second degree murder charge.

¶38 With respect to evidence that the defendant prevented the victim’s
mother from having contact with the victim during the ten months preceding
the victim’s death, the State argues that the trial court reasonably concluded
that the evidence was intrinsic to the second degree murder charge because it
formed an integral part of the victim’s mother’s testimony and completed the

13
story of her contacting law enforcement and because it “directly undermines
the defendant’s assertion that he dropped [the victim] off with [her mother] in
November 2019.”

¶39 We disagree that the evidence was intrinsic under either rationale.
The evidence lacks “a causal, temporal, or spatial connection with the charged
crime” of second degree murder and is not “inextricably intertwined” with that
crime. Rouleau, 176 N.H. at 406, 2024 N.H. 2, ¶15 (quotation omitted). While
the evidence may have explained how the victim’s mother came to contact law
enforcement, it neither “completes the story of the charged offense” nor “forms
an integral part of a witness’s testimony about the charged offense[].” Id. at
406, 407, 2024 N.H. 2, ¶¶ 15, 18 (emphases added) (quotation omitted). In
addition, we have never held that evidence undermining a defendant’s asserted
version of events that do not have a “a causal, temporal, or spatial connection
with the charged crime” is intrinsic to that offense. Id. at 406, 2024 N.H. 2,
¶15 (quotation omitted). Rather, we have considered the admissibility of such
evidence under the rubric of Rule 404(b). See, e.g., State v. Dukette, 145 N.H.
226, 230-31 (2000) (concluding that certain evidence was relevant for the non-
propensity purpose of “undermin[ing] the defendant’s argument that she
reasonably believed the alleged victim was about to use unlawful, deadly force
against her”).3 We conclude that this evidence was not intrinsic to the charged
offense; therefore, the trial court unsustainably exercised its discretion in
ruling to the contrary. This conclusion is limited to the determination that the
challenged evidence is not intrinsic and does not preclude the State, in a
retrial, from seeking to admit the evidence under Rule 404(b).

C. Video of Encounter with the Police

¶40 The defendant next contends that the trial court unsustainably
exercised its discretion in admitting a video of his encounter with the police on
December 31, 2021. By motion the defendant succeeded in having his
statements during that encounter excluded because he had invoked his right to
remain silent. See State v. Remick, 149 N.H. 745, 747 (2003) (noting that
under the Fifth Amendment, “use of pre-arrest silence in the [State’s] case-in-
chief, in which the defendant does not testify, is unconstitutional”). He then
moved to exclude all evidence of the encounter pursuant to Part I, Article 15 of
the New Hampshire Constitution and the Fifth and Fourteenth Amendments of
the United States Constitution, arguing that “[e]vidence that there was an
encounter, with the substance of the encounter not admitted, merely raises
questions and causes the jury to speculate and is therefore prejudicial.” The
trial court excluded only “questions posed to the defendant which resulted in

3 The evidence was also of dubious relevance in light of defense counsel’s remark in his opening
statement that the victim died during the nighttime hours of December 6 and 7, 2019, while she
was in the car with Kayla and the other children. This contention implicitly abandoned the
assertion that the defendant had returned the victim to her mother in November.

14
his asserting his right to silence” and “any assessment of his demeanor based
on his asserting his right to silence.” At trial, a video of the encounter was
played for the jury without audio.

¶41 On appeal, the defendant argues that “the video was improper
evidence of [his] pre-arrest silence.” He asserts that in the video, the police
officers “appear to pepper him with questions that [he] seems to answer” but
that “[w]ithout the audio, the jury could only speculate about what was said.”
He then asserts that the jury could have understood from other evidence in the
case that the police had located him that day to question him about the victim.
He argues that because there was no evidence that he helped the police find
the victim, the jury “could only have understood that [he] did not cooperate,”
which constitutes evidence of his pre-arrest silence.

¶42 Having reviewed the video, we cannot conclude that it could lead
the jury to speculate about the defendant’s pre-arrest silence. The defendant
acknowledges that, as depicted in the video, the defendant “seems to answer”
the officers’ questions. Nor is there anything in the video suggesting that the
officers were antagonistic toward the defendant or that he was fending off
accusations. We are not persuaded that the video, without audio, constituted
impermissible evidence of the defendant’s pre-arrest silence.

¶43 The defendant also argues that the video “had no probative value
on any issue of consequence.” The State counters that the video “was relevant
and probative of the investigative steps taken by the police” and “was probative
of the defendant’s whereabouts, who he was with, and his living situation when
the police began looking for [the victim], who was supposed to be with him.”
Based upon our review of the video, we conclude that while its probative value
was slight, it presented virtually no danger of unfair prejudice. Accordingly, we
reject the defendant’s arguments that the video was inadmissible under New
Hampshire Rules of Evidence 402 and 403. See N.H. R. Ev. 402 (providing
relevant evidence is generally admissible); N.H. R. Ev. 403 (providing relevant
evidence is excludable “if its probative value is substantially outweighed by a
danger of . . . unfair prejudice”). We conclude that the trial court did not
unsustainably exercise its discretion in admitting the video.

III. Conclusion

¶44 Although the defendant requests that we reverse all his convictions,
his brief does not specifically address his convictions of falsifying physical
evidence, witness tampering, and abuse of a corpse. To the extent the
defendant does challenge those convictions on appeal, he has failed to
demonstrate reversible error. See State v. Letarte, 169 N.H. 455, 469 (2016).
Any issues the defendant raised in his notice of appeal but did not brief are
deemed waived. See State v. Blackmer, 149 N.H. 47, 49 (2003).

15
[¶45] For the foregoing reasons, we reverse the defendant’s conviction of
second degree murder, affirm his convictions of second degree assault,
falsifying physical evidence, witness tampering, and abuse of a corpse, and
remand.
Affirmed in part; reversed in
part; and remanded.

MACDONALD, C.J., and DONOVAN and COUNTWAY, JJ., concurred.