Cited by

was relevant to defendant’s belief that the witness would testify in the underlying prostitution and drug conspiracy cases); State v. Simonds, 135 N.H. 203, 207 (1991) (evidence of defendant’s prior indictments for sexually assaulting the victim admissible as probative of his specific intent to touch her for the purpose of sexual arousal or gratification rather than innocently); State v. Gruber, 132 N.H. 83, 89 (1989) (in an insurance fraud case, evidence of defendant’s relationship with the wom

To overturn the trial court’s decision, the defendant must establish 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.

Furthermore, while debt from legal gambling and having a mistress have a potential for prejudice, we do not find evidence of this nature so inherently prejudicial as to outweigh its probative value.

d the only means of ascertaining that mental state is by drawing inferences from conduct.” Because of the critical nature of such *232 evidence, courts have noted that while evidence of a prior offense or bad act is always prejudicial, the “prejudice is frequently outweighed by the relevancy of the evidence when a defendant’s knowledge or intent is a contested issue in the case.” State v. Gruber, 132 N.H. 83, 90, 562 A.2d 156, 160 (1989) (citations omitted).

generally State v. Gruber, 132 N.H. 83, 89, 562 A.2d 156, 159-60 (1989) (evidence of cancelled checks, receipts and *76 telephone records established clear proof of defendant’s prior relationship).

State v. Simonds, 135 N.H. 203, 207, 600 A.2d 928, 930 (1991) (evidence of defendant’s prior indictments for sexually assaulting the victim admissible as probative of his specific intent “to touch her for the purpose of sexual arousal or gratification” rather than innocently); State v. Gruber, 132 N.H. 83, 89, 562 A.2d 156, 159 (1989) (in an insurance fraud case, evidence of defendant’s relationship with the woman who “stole” his property admissible to show that he intended to deceive the insura

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).

By arguing to the jury that he had acted innocently, the defendant placed his intent squarely at issue, see State v. Gruber, 132 N.H. 83, 89-90, 562 A.2d 156, 160 (1989), and evidence of his previous threatening behavior towards Gowing was not substantially more prejudicial than probative of his intent to permanently deprive her of her property.

State v. Gruber, 132 N.H. 83, 94-95, 562 A.2d 156, 163 (1989); State v. Hopps, 123 N.H. 541, 545-46, 465 A.2d 1206, 1209 (1983).

This argument was rejected by the legislature through the enactment of the theft statute, which “provides that a person ‘obtains’ property, for purposes of the statute, if that person brings about ‘a transfer of possession or of some other legally recognized interest in property.’” State v. Gruber, 132 N.H. 83, 93, *696 562 A.2d 156, 162 (1989) (quoting RSA 637:2, II (1986)).

This finding may be based upon circumstantial evidence.

Whether to admit evidence under Rule 404(b) involves the consideration of three factors: first, the evidence must be relevant for a purpose other than character or disposition; second, there must be clear proof that the defendant committed the prior offenses; and third, the prejudice to the defendant must not substantially outweigh the probative value of the evidence.

ly assaulted her on prior occasions); State v. Tarsitano, 134 N.H. 730, 734-35, 599 A.2d 474, 476-77 (1991) (defendant’s friend testified that he participated in burglaries with the defendant); State v. *728 Dalphond, 133 N.H. 827, 831, 585 A.2d 317, 320 (1991) (victim, who was member of defendant’s household, described contents of pornographic material owned by the defendant); State v. Gruber, 132 N.H. 83, 89, 562 A.2d 156, 159-60 (1989) (State introduced cancelled checks, receipts, and telepho

It is therefore not properly before this court.

.” State v. Gruber, 132 N.H. 83, 88, 562 A.2d 156, 159 (1989) (quoting Trainor, 130 N.H. at 374, 540 A.2d at 1238 (citations omitted)) (emphasis added).

State v. Gruber, 132 N.H. 83, 85, 562 A.2d 156, 163 (1989); State v. Roberts, 102 N.H. at 417, 158 A.2d at 460.

The defendant contends that, for the review of a granting of judgment n.o.v., we should apply the standard of review for setting aside a verdict, as set out in State v. Houle, 120 N.H. 160, 412 A.2d 736 (1980) and State v. Gruber, 132 N.H. 83, 562 A.2d 156 (1989), that “the determination whether to deny a motion to set aside the verdict rests within the sound discretion of the court.” Id.

Having failed to do so, the defendant cannot now raise the argument on appeal.

We recently articulated in State v. Gruber, 132 N.H. 83, 88, 562 A.2d 156, 159 (1989), that there is a “three-pronged test to determine the admissibility of prior offense or bad act evidence under Rule of Evidence 404(b).

However, they constitute relevant circumstantial evidence of the defendant’s original agreement with his wife to kill Brown.

State v. Gruber, 132 N.H. 83, 94-95, 562 A.2d 156, 163 (1989); State v. Johnson, supra at 587, 547 A.2d at 218.