Cited by

State v. Melcher, 140 N.H. 823, 829-30 (1996) (identifying relationship between the parties as context).

5 from the prior conduct’s tendency to show character or disposition.” State v. Melcher, 140 N.H. 823, 828 (1996).

at 70 (quotation and brackets omitted); cf. State v. Melcher, 140 N.H. 823, 828 (1996) (noting, in Rule of Evidence 404(b) case, that “[v]iewed objectively, the other bad acts must clearly tend to show that the defendant had a definite 11 prior design or system which included the doing of the act charged as a part of its consummation” (quotation omi

The role of the jury in New Hampshire is to determine whether the State has met its burden of factually proving that a defendant is responsible for committing the charged crime or a lesser included offense, see State v. Melcher, 140 N.H. 823, 831 (1996); Pierce v. State, 13 N.H. 536, 551 (1843), without considering the legal effects of its verdict, see State v. Tetrault, 78 N.H. 14, 16 (1915) (“The jury [has] no duty to perform in the assessment of the penalty and therefore no occasion to know w

State v. Melcher, 140 N.H. 823, 829-30 (1996) (applying Rule 404(b) to testimony about the relationship between defendant and victim and rejecting the trial court’s finding that such testimony was admissible under Rule 404(b) because “the relationship ultimately made it ‘unlikely that the act would occur out of the blue’”); United States v. Gibbs

This evidentiary rule is grounded in “long-established notions of fair play and due process, which forbid judging a person on the basis of innuendos arising from conduct which is irrelevant to the charges for which he or she is presently standing trial.” State v. Melcher, 140 N.H. 823, 827 (1996) (quotations omitted).

t’s controlling behavior in order for the jury “to understand the context in which this case is set.” “Rule 404(b) does not specifically provide for the admissibility of other acts evidence to prove context, but it does allow such evidence to be admitted for any purpose other than to prove the character of a person in order to show that the person acted in conformity therewith.” State v. Melcher, 140 N.H. 823, 829 (1996) (quotations omitted).

See, e.g., State v. Mason, 150 N.H. 53, 57, 834 A.2d 339 (2003) ("The act of cunnilingus does not require actual penetration."); State v. Melcher, 140 N.H. 823, 824, 826, 678 A.2d 146 (1996) ("Whatever its commonly accepted meaning,...

See, e.g., State v. Mason, 150 N.H. 53, 57 (2003) (“The act of cunnilingus does not require actual penetration.”); State v. Melcher, 140 N.H. 823, 824, 826 (1996) (“Whatever its commonly accepted meaning,...

Fellatio is “sexual penetration” for the purposes of aggravated felonious and felonious sexual assault whether or not it involves actual penetration in the sense of “passing through or into.” State v. Melcher, 140 N.H. 823, 826 (1996) (quotations omitted).

State v. Melcher, 140 N.H. 823 (1996); State v. Castine, 141 N.H. 300 (1996).

This court is the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole.

We have discussed the definition of a common plan for the purposes of New Hampshire Rule of Evidence 404(b).

The bad acts must be intertwined with the charged offenses rather than a series of independent acts that, only in retrospect, resemble a design.

This is not a case where “an assumption based upon the defendant’s propensity toward certain action is the essential connection in the inferential chain supporting relevance.” State v. Melcher, 140 N.H. 823, 830 (1996).

To be relevant under Rule 404(b), the proffered evidence must be pertinent to an issue that is actually in dispute.

his intent to act with the purpose of obtaining sexual gratification.” See generally Bassett, 139 N.H. at 500, 659 A.2d at 896; State v. Melcher, 140 N.H. 823, 828, 678 A.2d 146, 149 (1996).

In a criminal matter, Rule 404(b) “serves to ensure that the defendant is tried on the merits of the *208 crime as charged and to prevent a conviction based on evidence of other crimes or wrongs.” State v. Melcher, 140 N.H. 823, 827, 678 A.2d 146, 149 (1996) (quotation omitted).

When “statutory language is clear and unambiguous, its meaning is not subject to modification by judicial construction.” State v. Melcher, 140 N.H. 823, 826, 678 A.2d 146, 148 (1996) (quotation omitted).

Fellatio is defined as “the practice of obtaining sexual satisfaction by oral stimulation of the penis.” State v. Melcher, 140 N.H. 823, 826, 678 A.2d 146, 148 (1996) (quotation omitted).

See, e.g., State v. Melcher, 140 N.H. 823, 828, 678 A.2d 146, 149 (1996) (“no link in the chain of inferences justifying relevance can be derived from the [later] conduct’s tendency to show character or disposition”).

The defendant essentially requests that we modify RSA 651-A:23 by adding the words “while awaiting extradition.” This we cannot do, because the meaning of statutory language that is clear and unambiguous “is not subject to modification by judicial construction.” State v. Melcher, 140 N.H. 823, 826, 678 A.2d 146, 148 (1996) (quotation omitted); see also Johnson v. Mason, 493 A.2d 846, 850 (Conn. 1985) (concluding statute clearly specifies that credit is available for time spent “while awaiting tr

context, the jury would be left with the misleading impression that [the victim] had either been abused by someone else, was lying, or [was] withholding information about the other assaults.” We have stated that the admission of bad acts evidence in the State’s case in chief cannot be “justified by a belief in advance of trial that excluding this evidence will mislead the jury.” State v. Melcher, 140 N.H. 823, 830, 678 A.2d 146, 150 (1996).

Sexual penetration is defined in RSA 632-A:l, V (Supp. 1995) to include cunnilingus or “[a]ny intrusion, however slight, of any part of the actor’s body or any object manipulated by the actor into genital or anal openings of the victim’s body.” We recently held in State v. Melcher, 140 N.H. 823, 678 A.2d 146 (1996), that sexual penetration as defined in RSA 632-A:l, V does not require proof of actual penetration when the act of fellatio is involved.

This case is distinguishable from our decision in State v. Melcher, 140 N.H. 823, 678 A.2d 146 (1996), another sexual assault case *547 involving the admissibility of prior sexual abuse of the young victim.

State v. Melcher, 140 N.H. 823, 828, 678 A.2d 146, 149 (1996) (quotations and citations omitted).

“The State bears the burden in criminal matters of demonstrating the relevance of other bad acts.” State v. Melcher, 140 N.H. 823, 828, 678 A.2d 146, 149 (1996).