Cited by

at 575-76 (quotation omitted); cf. State v. Trainor, 130 N.H. 371, 375 (1988) (noting that Rule 403 analysis is part of analysis under Rule 404(b)).

A similar three-pronged test is applied to cases decided under Rule 404(b).

The testimony of the witnesses together with the victim’s statements constitutes clear proof in this case that the defendant had committed the prior bad acts in July 1993.

The defendant also argues that even if the trial court correctly found Rule 404(b) inapplicable, the evidence should have been excluded under the Rule 403 balancing test, which is identical to the balancing test under Rule 404(b).

State v. Trainor, 130 N.H. 371, 374, 540 A.2d 1236, 1238 (1988) (evidence of facts underlying defendant’s indictment for a similar crime with a similar pattern, a “flim-flam operation,” admissible to show his “knowledge that he was engaged in criminal conduct” and not the innocent dupe of others, as he claimed); State v. Shackford, 127 N.H. 695, 7

State v. Gruber, 132 N.H. 83, 88, 562 A.2d 156, 159 (1989); State v. Trainor, 130 N.H. 371, 374-75, 540 A.2d 1236, 1238-39 (1988).

The decision to admit such evidence lies within the trial court’s sound discretion, State v. Trainor, 130 N.H. 371, 374, 540 A.2d 1236, 1238 (1988), and an abuse of that discretion will be found only if the defendant can demonstrate that the ruling was “clearly untenable or unreasonable to the prejudice of his case.” Michaud, 135 N.H. at 727, 610 A.2d at 356 (quotation omitted).

The determination as to whether the probative value of relevant evidence is substantially outweighed by its prejudicial effect is a matter within the trial court’s discretion.

A decision admitting evidence of prior bad acts lies within the sound discretion of the trial court.

We note that the conduct here is in stark contrast to that of the defendant in State v. Trainor, 130 N.H. 371, 540 A.2d 1236 (1988), where a defendant was successfully prosecuted for theft by deception for seeking out merchants of electronic equipment and promising to deliver non-existent merchandise at reduced wholesale prices in exchange for payment in full in advance of delivery.

The inquiry for the trial court under Rules 403 and 404(b) is whether the danger of unfair prejudice to the defendant substantially outweighs the probative value of the evidence.

The third prong incorporates the standards of New Hampshire Rule of Evidence 403 requiring a showing of unfair prejudice.

Rule 404(b) determinations lie within the trial court’s sound discretion.

“The decision to admit [prior bad acts] evidence lies within the sound discretion of the trial court.” State v. Trainor, 130 N.H. 371, 374, 540 A.2d 1236, 1238 (1988).

State v. Trainor, 130 N.H. 371, 375, 540 A.2d 1236, 1239 (1988) (requiring Rule 403 analysis for Barker determination).

ing the character or disposition of the defendant,”’ State v. Hickey, 129 N.H. 53, 60, 523 A.2d 60, 65 (1986) (quoting State v. Barker, 117 N.H. 543, 546, 374 A.2d 1179, 1180 (1977)); (2) there is clear proof that the act at issue was committed by the defendant, id,.', and (3) the “prejudice to the defendant does not substantially outweigh the probative value of the evidence,” State v. Trainor, 130 N.H. 371, 375, 540 A.2d 1236, 1239 (1988).

The defendant contends that it was never demonstrated that this evidence offered by the State met the three-pronged test to determine the admissibility of prior offense evidence under New Hampshire Rule of Evidence 404(b).

This court has previously established a three-pronged test to determine the admissibility of prior offense or bad act evidence under Rule of Evidence 404(b).

State v. Trainor, 130 N.H. 371, 375, 540 A.2d 1236, 1239 (1988) (prejudicial character must substantially outweigh probative value to require ruling of inadmissibility under Rule 403)).