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Indeed, “[t]aking liberty with legislative silence by fashioning judicial rules in its stead is contrary to well-settled rules of statutory construction.” State v. Dushame, 136 N.H. 309, 314 (1992).

State v. Martel, 141 N.H. 599, 603 (1997); State v. Dushame, 136 N.H. 309, 315 (1992); State v. Reynolds, 131 N.H. 291, 295 (1988).

We have never addressed whether a trial judge’s failure to individually question jurors to assure that the jurors begin deliberations anew constitutes a constitutional “structural error.” State v. Dushame, 136 N.H. 309 (1992), relied upon by the defendant to argue that the error here was structural, solely concerned the application of RSA 500-A:13 (1983).

Convincing a jury of this mens rea beyond a reasonable doubt was a heavy burden, and we have recognized that “[t]he unlikelihood of developing direct testimony on the defendant’s state of mind calls for consideration of all proper proof that can be proffered by the prosecution.” State v. Dushame, 136 N.H. 309, 317-18 (1992).

She relies upon State v. Dushame to argue that such contact touched “upon the integrity of the deliberative process of the jury” and, therefore, the verdict should be set aside.

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 *370 prejudice to the defendant must not substantially outweigh the probative value of the evidence.

Because the first and third prongs of this test entail determinations of relevance and probative value versus prejudice, see, e.g., State v. Marti, 140 N.H. 692, 695 (1996); State v. Dushame, 136 N.H. 309, 316 (1992), we need not separately address the defendant’s contentions that Rules 401 (relevance) and 403 (probative value substantially outweighed by danger of, among other things, prejudice) were also violated.

“[W]hen the language used in a statute is clear and unambiguous, its meaning is not subject to modification by judicial construction.” State v. Dushame, 136 N.H. 309, 314 (1992) (quotation omitted).

If the court determined that a juror should have been disqualified, it could have excused that juror and, if it “obtain[ed] a stipulation by the parties to proceed with fewer than twelve jurors,” proceeded with an eleven-person panel.

We have consistently held that “legislative intent is to be found not in what the legislature might have intended, but rather, in the meaning of what it did say.” State v. Dushame, 136 N.H. 309, 314, 616 A.2d 469, 472 (1992) (quotation omitted).

Appeal of Hickey, 139 N.H. 586, 587, 660 A.2d 1098, 1099 (1995); State v. Dushame, 136 N.H. 309, 314, 616 A.2d 469, 471-72 (1992).

The defendant argues that in State v. Dushame, 136 N.H. 309, 314-15, 616 A.2d 469, 472 (1992), this court granted a new trial based *604 on a violation of RSA 500-A: 13 without requiring a showing of prejudice to the defendant.

Whatever its commonly accepted meaning, then, fellatio is “sexual penetration” for purposes of the statute, whether or not it involves actual penetration in the sense of “passing through or into.” Because this statutory language is clear and unambiguous, “its meaning is not subject to modification by judicial construction.” State v. Dushame, 136 N.H. 309, 314, 616 A.2d 469, 472 (1992) (quotation omitted).

“The trial court is accorded considerable deference in its determination of whether the prejudice substantially outweighs the probative value.” State v. Dushame, 136 N.H. 309, 317, 616 A.2d 469, 473 (1992) (quotation omitted).

“Unfair prejudice is an undue tendency to induce a decision against the defendant on some improper basis, commonly one that is emotionally charged.” State v. Dushame, 136 N.H. 309, 318-19, 616 A.2d 469, 474 (1992) (Brock, C.J., concurring in part and dissenting in part) (quotation and ellipses omitted).

Hastings, 137 N.H. at 605, 631 A.2d at 529; State v. Dushame, 136 N.H. 309, 319, 616 A.2d 469, 475 (1992) (Brock, C.J., concurring in part and dissenting in part).

at 914; see State v. Dushame, 136 N.H. 309, 319-20, 616 A.2d 469, 475 (1992) (Brock, C. J., concurring in part and dissenting in part).

Three months after Colbert’s trial, this court decided State v. Dushame, 136 N.H. 309, 616 A.2d 469 (1992), reversing a defendant’s convictions because a mid-deliberation juror substitution violated former RSA 500-A:13, which required that alternates be discharged upon final submission of the case to the jury.

See, e.g., State v. Dushame, 136 N.H. 309, 616 A.2d 469 (1992); State v. Simonds, 135 N.H. 203, 600 A.2d 928 (1991).

SB 61 is a response to this court’s decision in State v. Dushame, 136 N.H. 309, 616 A.2d 469 (1992), in which we held that RSA 500-A:13 “does not permit the trial court to retain or recall alternate jurors and reconstitute the jury during the course of deliberations.” Id.

We have interpreted this to mean that such evidence may not be used to prove “character or disposition.” State v. Dushame, 136 N.H. 309, 316, 616 A.2d 469, 473 (1992) (emphasis added).