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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Strafford No. 2008-316 THE STATE OF NEW HAMPSHIRE v. JEREMIAH M. HOLMES Argued: May 5, 2009 Opinion Issued: August 4, 2009 Kelly A. Ayotte, attorney general (Thomas E. Bocian, assistant attorney general, on the brief and orally), for the State. Paul Borchardt, assistant appellate defender, of Concord, on the brief and orally, for the defendant. HICKS, J. Following his convictions for one count of being a felon in possession of a firearm, see RSA 159:3 (2002), two counts of falsifying physical evidence, see RSA 641:6, I, II (2007), and one count of criminal threatening with a deadly weapon, see RSA 631:4, I(a), II(a)(2) (2007), the defendant, Jeremiah M. Holmes, appeals a ruling of the Superior Court (Fauver, J.) barring him from impeaching a witness with a prior criminal conviction. We affirm.

The jury could have found the following relevant facts. On November 18, 2006, Holmes attended a rap concert at Burby's Pizza, a bar and restaurant in Somersworth. At some point he threatened David Driscoll and revealed what appeared to be a handgun in his waistband. Many witnesses saw the gun that night, but only for an instant, and they provided differing descriptions of it. At trial, David Driscoll testified specifically to the size, shape, and color of the gun. Defense counsel sought to impeach him, pursuant to New Hampshire Rule of Evidence 609(a)(2), with evidence of his prior conviction for receiving stolen property. At a brief sidebar, the State argued that the theft conviction was not, on its face, admissible under Rule 609(a)(2), and offered a federal case, United States v. Grandmont, 680 F.2d 867, 871 (1st Cir. 1982), holding that robbery is not per se a crime of dishonesty. Defense counsel proffered Driscoll's criminal record, which indicated that Driscoll pled not guilty to a charge of receiving stolen property in 2002, but was found guilty. Defense counsel could not provide a certified copy of the conviction. The trial court refused to allow defense counsel to cross-examine Driscoll with evidence of his prior conviction, ruling that it was inadmissible under Rule 609(a)(2). On appeal, the defendant argues that the trial court erred by excluding evidence of Driscoll's prior conviction for receiving stolen property because theft is a crime of dishonesty under Rule 609(a)(2). We review a trial court's ruling to admit evidence of prior convictions under an unsustainable exercise of discretion standard. State v. Deschenes, 156 N.H. 71, 76 (2007). To show an unsustainable exercise of discretion, the defendant must demonstrate that the court's ruling was clearly untenable or unreasonable to the prejudice of his case. Id. As a preliminary matter, we address which version of Rule 609(a) we apply in this appeal. Rule 609(a), which is identical to Federal Rule of Evidence 609(a), was amended in October 2007, mirroring a 2006 amendment to the federal rule. Holmes' trial took place in December of 2007 -- after Rule 609(a) was amended but before the amendment took effect on January 1, 2008. The prior version was therefore in effect at trial, and we presume that the trial court based its decision upon it. However, both parties cite the current, amended version of Rule 609(a) in their briefs. Further complicating matters, the defendant cites the language of the prior version centrally in his brief, stating that, "[t]he only issue is whether receiving stolen property is a crime that involves dishonesty or false statement." (Emphasis added). Under the circumstances, we might ask the parties to file supplemental briefs to clarify which rule they believe applies and how. Here, however, it is clear that the prior rule was in effect at trial and we base our decision upon it. Moreover, as we explain below, the result in this case would be the same under either version of the rule.

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Prior to the amendment, the rule provided in relevant part: For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if . . . [it] involved dishonesty or false statement, regardless of the punishment. N.H. R. Ev. 609(a) (amended 2007). When interpreting a rule of evidence

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