Cited by

not so remote in time as to eliminate the requisite nexus between it and the charged event), Pepin, 156 N.H. at 278 (threat made five months before charged event was sufficiently closely connected to charged event as to be admissible), and State v. Allen, 128 N.H. 390, 391, 397 (1986) (threat made in 1980 before the charged event in 1984 was not too remote to be admissible), with State v. McGlew, 139 N.H. 505, 507 (1995) (event occurring six years before charged acts and involving different sex

Rather, it’s the - - the ordinary weighing of prejudice and probative and relevance that applies in the ordinary [Rule] 401, 403 context.” The defendant argues that the trial court erred in ruling that it did not need to find that there was clear proof that the defendant committed the prior acts in order to admit them under Rule 404(b).

State v. Davidson, 163 N.H. 462, 469 (2012); State v. McGlew, 139 N.H. 505, 509 (1995).

“The decision to admit ‘bad acts’ evidence lies within the trial court’s sound discretion and will be overturned only if the defendant can show that the decision was clearly untenable or unreasonable to the prejudice of his case.” State v. McGlew, 139 N.H. 505, 507 (1995).

See, e.g., State v. Nightingale, 160 N.H. 569, 574 (2010); State v. Addison, 160 N.H. 493, 501 (2010); see also State v. McGlew, 139 N.H. 505, 507-10 (1995).

see State v. McGlew, 139 N.H. 505, 508-10 (1995) (requiring trial courts to make specific findings to support their evidentiary rulings under Rule 404(b)).

To be relevant, *648 prior bad acts must be in some significant way connected to material events constituting the crime charged and not so remote in time as to eliminate the nexus.

In addition, to be relevant, prior bad acts must be in some significant way connected to material events constituting the crime charged and not so remote in time as to eliminate the nexus.

accident; We have established a three-part test to assess the admissibility of evidence under Rule 404(b): (1) the evidence must be relevant for a purpose other than proving the defendant’s character or disposition; (2) there must be clear proof that the defendant committed the act; and (3) the probative value of the evidence must not be substantially outweighed by its prejudice to the defendant.

The purpose of excluding inadmissible evidence of other crimes or wrongs is to ensure that a defendant is tried on the merits of the crime charged and to prevent a conviction based upon evidence of other crimes or wrongs.

“The probative value of the other bad act evidence must also be considered in the context of its incremental value: trial courts must consider the extent to which the issue is established by other evidence, stipulation or inference.” State v. McGlew, 139 N.H. 505, 510-11 (1995) (quotations omitted).

We do, however, address the remainder of this petition under our authority over the practices and procedures of the trial court.

The State bears the burden in criminal matters of demonstrating the relevance of other bad acts.

Prior bad acts evidence is admissible when it is relevant for a purpose other than proving the defendant’s character or disposition; there is clear proof that the defendant committed the act; and the probative value of the evidence is not substantially outweighed by its prejudice to the defendant.

We have, on other occasions, taken the opportunity to instruct the trial courts on difficult issues important to the smooth functioning of the criminal justice system even though error did not require reversal.

[T]he State, in offering evidence of other wrongs under Rule 404(b), must state the specific purpose for which the evidence is offered and must articulate the precise chain of reasoning by which the offered evidence will tend to prove or disprove an issue actually in dispute, without relying upon forbidden inferences of predisposition, character, or propensity.

State v. McGlew, 139 N.H. 505, 510, 658 A.2d 1191, 1195 (1995) (quotation and emphasis omitted).

articulate the precise chain of reasoning by which the offered evidence will tend to prove or disprove an issue actually in dispute, without relying upon forbidden inferences of predisposition, character, or propensity.” State v. McGlew, 139 N.H. 505, 510, 658 A.2d 1191, 1195 (1995).

State v. McGlew, 139 N.H. 505, 508-10, 658 A.2d 1191, 1194-95 (1995) (exercising supervisory authority to require explicit findings under New Hampshire Rule of Evidence 404(b)).

State v. McGlew, 139 N.H. 505, 510, 658 A.2d 1191, 1195 (1995) (evidence is unduly prejudicial if it arouses a sense of horror that “may cause a jury to base its decision on something other” than the facts of the case before it).

The decision to admit evidence under Rule 404(b) is discretionary, and we will overturn the decision of the trial court only if its decision “was clearly untenable or unreasonable to the prejudice of [the defendant’s] case.” State v. McGlew, 139 N.H. 505, 507, 658 A.2d 1191, 1193 (1995).

State v. McGlew, 139 N.H. 505, 510, 658 A.2d 1191, 1195 (1995) (quotation and emphasis omitted).

The proponent of bad acts evidence — in this case, the State — bears the burden of demonstrating its relevance.

Relevance, the ground specifically raised by the defendant at trial, is only one of these bases; the Rule 403 balancing of probative value and prejudicial effect, a ground never identified by the defendant, is a separate basis.

The concern that a defendant might be convicted because of his character is the gravamen of Rule 404(b).” State v. McGlew, 139 N.H. 505, 509, 658 A.2d 1191, 1195 (1995) (citation omitted).

Normally, “[t]he decision to admit ‘bad acts’ evidence lies within the trial court’s sound discretion and will be overturned only if the defendant can show that the decision was clearly untenable or unreasonable to the prejudice of his case.” State v. McGlew, 139 N.H. 505, 507, 658 A.2d 1191, 1193 (1995).

The purposes and goals of this rule are well established, see, e.g., State v. McGlew, 139 N.H. 505, 509, 658 A.2d 1191, 1195 (1995), and will not be repeated here.

In State v. McGlew, 139 N.H. 505, 658 A.2d 1191 (1995), we announced the requirement that the trial court “explain precisely how the evidence relates to the disputed issue, without invoking propensity.” Id.

The State bears the burden in criminal matters of demonstrating the relevance of other bad acts.

State v. McGlew, 139 N.H. 505, 507, 658 A.2d 1191, 1193 (1995) (Rule 404(b)); State v. Philbrook, 138 N.H. 601, 603, 644 A.2d 66, 67 (1994) (Rule 403).

tend[ed] to prove or disprove an issue actually in dispute, without relying upon forbidden inferences of predisposition, character, or propensity.” State v. McGlew, 139 N.H. 505, 510, 658 A.2d 1191, 1195 (1995).

401, 403, and express no opinion whether our recent decisions in State v. Bassett, 139 N.H. 493, 659 A.2d 891 (1995), and State v. McGlew, 139 N.H. 505, 658 A.2d 1191 (1995), would compel a different analysis or result.

Rule íOU(b) Evidence Because of recent developments in the law of evidence in the area of New Hampshire Rule of Evidence 404(b), see State v. Bassett, 139 N.H. 493, 659 A.2d 891 (1995); State v. McGlew, 139 N.H. 505, 658 A.2d 1191 (1995), we defer to the trial court for an initial determination of the admissibility of the defendant’s prior bad acts on remand.

“The decision to admit ‘bad acts’ evidence lies within the trial court’s sound discretion and will be overturned only if the *4 defendant can show that the decision was clearly untenable or unreasonable to the prejudice of his case.” State v. McGlew, 139 N.H. 505, 507, 658 A.2d 1191, 1193 (1995).