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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. 2008-458 THE STATE OF NEW HAMPSHIRE v. LEE RUSSELL Argued: September 10, 2009 Opinion Issued: December 16, 2009 Kelly A. Ayotte, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State. Stephanie Hausman, assistant appellate defender, of Concord, on the brief and orally, for the defendant. DUGGAN, J. The defendant, Lee Russell, was convicted of armed robbery and reckless conduct, see RSA 636:3, III (2007); RSA 631:3 (2007), following a jury trial in the Superior Court (Brown, J.). On appeal, he argues that: (1) the trial court erred when it admitted evidence of his threatening statements pursuant to New Hampshire Rule of Evidence 404(b); and (2) the trial court committed plain error when it sentenced him to an extended term of imprisonment. We affirm.

The jury could have found the following facts. On November 14, 2006, the defendant; his cousin, Jenika Senter; Vincent Cooper; Cooper's girlfriend, Kimberly Dick; and Walter George were at Cooper and Dick's apartment in Rochester. The defendant, Senter, Cooper and George discussed "wanting to rob somebody." At 6:40 p.m., Senter used the defendant's cell phone to contact Travis Baker to purchase cocaine, but Baker told Senter that he could not sell her cocaine at that time. Between 11:03 p.m. and shortly after midnight, Senter and Baker spoke many times. Shortly after midnight, Baker told Senter that he could get her three grams. Senter and Baker agreed to meet on Adele Drive in Dover. Baker and his girlfriend, Laura Sabine, drove to the arranged meeting place. Senter walked up to Baker's vehicle and got into the back seat. Senter said that she needed to get her purse out of her uncle's car, so Baker began to drive slowly down Adele Drive. A young white male, approximately five feet ten inches to six feet tall, wearing a black hooded sweatshirt, suddenly appeared at the front passenger side window. The man had a tattoo on his face or neck. Baker testified that he saw the man's eyes and the bottom part of his face and neck, and Sabine testified that she saw the man's eyes, cheekbones and forehead. The man had a small, revolver-style gun and told the occupants of the car to give him everything they had. Baker refused and sped off. A .22 caliber bullet shattered the back window, ricocheted off the front windshield, and lodged in the dashboard. Senter laughed and told Baker to drive further down Adele Drive, but when Baker reached the end of the road, it was blocked by cars. Baker panicked and went back up Adele Drive. As they reached the spot where the shooting had occurred, Senter told Baker to stop the car and let her out. Baker refused and drove to Rochester, where, eventually, he let Senter out. Senter called Cooper to pick her up, and he took her to his apartment. Dick drove Senter home to Berwick, Maine. During the drive, Senter told Dick that the defendant had shot a gun at them. Baker and Sabine called 911 and went to the Dover Police Department, where they told the police what had happened. The next morning, Detective Lance Watkinson of the Dover Police Department interviewed Senter at her home. Although at first Senter denied being at Adele Drive, she later admitted that she was there, described what had happened, and identified the defendant as the gunman. Her version of what had happened was consistent with Baker and Sabine's story. Later that day, Baker and Sabine viewed photographic lineups containing the defendant's photograph and, although neither had ever seen the defendant before, both identified the defendant as the person who looked most like the gunman. Shortly after 5:00 p.m. on November 16, Detective Watkinson saw the defendant walking on Adele Drive. Detective Watkinson called the defendant's

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name, but he kept walking. The second time Detective Watkinson called the defendant's name, he looked at Detective Watkinson and then kept walking towards a car with his hands in the pocket of his sweatshirt. Detective Watkinson pulled out his gun, pointed it at the defendant, and ordered him to take his hands out of his pocket. The defendant complied and Detective Watkinson arrested him. After his arrest, the defendant was held at the Strafford County House of Corrections. Some of his telephone calls were recorded. On December 2, 2006, the defendant had a conversation with his mother, Kathryn Smart, in which he said: "[Senter] says she's not f----- snitching. We'll f----- find out when we go to Court. If she's f------ telling . . . ." The defendant also said: "I've, I've got people, I've got, just cause I'm in here doesn't mean s--- can't be done. I don't give a f---." The defendant's mother commented that Senter had "done this to so many people" that it would all "catch up to her." She also said, "See what she's got to say when she's cross examined." On December 4, 2006, Detective Watkinson testified at a probable cause hearing that Senter had identified the defendant as the gunman. The defendant's mother, his friends, and other family members attended the hearing. A few hours later, Senter contacted Detective Watkinson, upset that people were saying that Detective Watkinson had testified that she had identified the defendant because she never had. Senter went to the Dover Police Department with her father and grandmother and gave a videotaped statement in which she stated that she did not identify the defendant as the gunman and that the defendant was not the gunman. Before Detective Watkinson took Senter's statement, he played for her the recordings of the phone conversations between the defendant and his mother. On December 8, 2006, the defendant and his mother had a telephone conversation in which they discussed someone named "Katie," who was not otherwise involved. The defendant's mother noted that "Katie's pretty pissed off . . . [w]ith . . . what happened to [the defendant]." The defendant stated that "[w]e should have [Katie] f--- up Jen . . . [s]he's a f------ bulldog." The defendant's mother responded, "I'm not saying nothing" and "I already know what she said she's gonna do. She's already on it." The defendant described Katie as "crazy" and his mother responded, "[It's] because you are too." On December 10, 2006, the defendant and his mother had another conversation in which his mother said that if Baker and Senter "don't show up to Court, the case is thrown." The defendant agreed, and his mother responded, "Well I can't wait to see [Senter] show up, I mean that's gonna be quite the interesting case." The defendant replied that he was "gonna try to stare at her the whole time. I'm . . . just gonna like stare both of them down. [Baker] and [Senter]."

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On January 18, 2007, Senter testified before the Strafford County Grand Jury that she never identified the defendant. She stated that she had been threatened: "I have had threats saying that I am going to be shot, I am going to be dead . . . my father's car had $2,000 worth of vandalism done to it and my grandmother's as well." She also testified that she had received threats on her cell phone and MySpace page. Senter stated that she did not know who was threatening her, but stated "that is exactly why I did not want to call the police. This is exactly why I did not want to get involved because I am going to lose my life either way." Before the defendant's trial, the State moved in limine to cross-examine the defendant's mother and Senter at trial with some of the telephone calls made by the defendant while he was in the Strafford County House of Corrections, and offer the conversations as substantive evidence of Senter and the defendant's mother's credibility and the defendant's consciousness of guilt. The trial court ruled that the State could cross-examine Senter about whether the defendant had threatened her because that evidence was probative of her credibility and motive to lie. The State could question the defendant's mother about the defendant's threats because they were admissions and probative of his consciousness of guilt. If his mother testified inconsistently with her prior statements, the State could admit the telephone conversations "for the limited purpose of witness credibility." The trial court ruled that it would provide a limiting instruction that the defendant's mother's "conversations with the defendant [would] be considered for the limited purpose of her credibility with the exception of her testimony as to any threats by the defendant against . . . Senter." Finally, the trial court ruled that the telephone calls were admissible substantively as evidence of the defendant's consciousness of guilt, but ordered the State to redact certain portions of them. Detective Watkinson testified at trial that Senter identified the defendant as the gunman when he interviewed her on November 16. Senter testified that the defendant was not the gunman and that she had never identified him as such. Specifically, she testified that the defendant went home before she walked to Adele Drive to meet Baker and Sabine. Senter claimed that she had received threats since the incident, although she did not attribute them to the defendant. Counsel for the defendant cross-examined Senter with evidence that she had heard parts of the audio recordings of the conversations between the defendant and his mother. The defendant's mother testified that at the time of the robbery the defendant lived with her in her apartment in Dover. She stated that on the night of the robbery she returned to her apartment "roughly after 9:30" and that the defendant came home approximately ten to fifteen minutes later. She claimed that the defendant and his younger brother then played a video game

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and that she went to bed at approximately 10:45 p.m. She testified that she woke at approximately 1:00 a.m., went into the defendant's room to turn off his television, and saw him sleeping there. The State cross-examined the defendant's mother with portions of the telephone calls to impeach her testimony. After the jury convicted the defendant on both counts, the trial court imposed an enhanced sentence pursuant to RSA 651:2, II-g (2007). I. The Threats A. Senter's credibility We first consider the defendant's argument that the trial court erred by admitting the three telephone calls pursuant to Rule 404(b). The defendant first argues that the threats were only minimally probative of Senter's credibility: (1) because Senter exonerated the defendant before she learned of the threats; and (2) because the State presented other evidence that Senter was afraid to testify so that the threats were cumulative. The State counters that Senter's credibility was a central issue at trial and evidence that the defendant threatened her was highly probative of her credibility. Specifically, the State argues that it is reasonable to infer that Senter recanted after the probable cause hearing, and continued to deny that she had ever identified the defendant, after being threatened by the defendant and his family. The State contends that Senter impeached her own credibility, and that the threats were relevant to rebut Senter's claim that Detective Watkinson lied when he testified at trial that Senter identified the defendant. The State also maintains that the threats were probative of Senter's motive to continue to deny that she ever identified the defendant. Although "[e]vidence of other crimes, wrongs or acts" is inadmissible "to prove the character of a person in order to show that the person acted in conformity therewith," such evidence may be admissible "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." N.H. R. Ev. 404(b). Accordingly, Rule 404(b) ensures "that the defendant is tried on the merits of the crime as charged and to prevent a conviction based upon evidence of other crimes or wrongs." State v. Cook, 158 N.H. 708, 711 (2009). "We review the trial court's ruling for an unsustainable exercise of discretion, and will reverse only if it was clearly untenable or unreasonable to the prejudice of the defendant's case." Id. at 712. Because the trial court ruled on the admissibility of the threats in a pretrial motion, "we consider only what was presented at the pretrial hearing." State v. Glodgett, 144 N.H. 687, 694 (2000) (quotations omitted). To be admissible under Rule 404(b): "(1) the evidence must be relevant for a purpose other than proving the defendant's character or disposition; (2)

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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 the danger of unfair prejudice to the defendant." State v. Costello, 159 N.H. 113, 118 (2009). The State must prove the admissibility of the bad acts. Id. Here, the defendant challenges the trial court's decision only under the first and third prongs of the Rule 404(b) analysis. "To meet its burden under the first prong, the State must demonstrate the relevancy of the evidence." Id. Therefore, the State 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." Id. (quotations omitted). "That chain of reasoning must demonstrate a sufficient logical connection between the . . . acts and the permissible purpose for which the State offers the evidence." Id. (quotations omitted). "[F]or subsequent bad act evidence to satisfy the relevancy prong of our three-pronged test, the act must be fairly close in time and in some significant way connected to material events constituting the crime[s] charged." State v. Richardson, 138 N.H. 162, 167 (1993). The trial court ruled that the State could cross-examine Senter "as to whether she received threats from the defendant," because the threats were probative of her credibility and motive to lie. The trial court further instructed the jury that "[a] witness may be examined on the issue of his or her credibility, and any reasons a witness may have for testifying inconsistently with earlier statements, including statements to the police." The trial court instructed that if the jury found "that . . . Senter knew about the threats made against her by the Defendant," it could "infer that this caused her to testify at trial in a manner that was inconsistent with earlier statements she gave to police officers who investigated this matter." Senter's alibi testimony and credibility were critical given that the identity of the gunman was hotly contested at trial. See State v. Beltran, 153 N.H. 643, 649-50 (2006). When Detective Watkinson met with Senter on December 4, he played portions of the telephone conversations in which the defendant threatened Senter. Therefore, those threats were probative of Senter's motive to continue to deny that she ever identified the defendant as the gunman. See id. at 648-49 (evidence of defendant's abuse of victim probative of victim's credibility and motive to lie to police); State v. Duff, 129 N.H. 731, 734 (1987) (defendant's threats to and abuse of alibi witness "highly relevant to the alibi witness' credibility" as they could have led witness to corroborate defendant's story for fear of future harassment). Moreover, the threats were not cumulative. Evidence that Senter had received threats on her cell phone and the internet and that her grandmother's

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and father's cars had been vandalized was probative of her fear of testifying. However, Senter testified that she did not know where those threats came from, and denied that the defendant was behind those threats. Evidence that Detective Watkinson played the recording of the defendant's threats for Senter established a link between the defendant's threats and Senter's motive to continue to deny that she had ever identified the defendant. See State v. Davis, 143 N.H. 8, 12 (1998) (cumulative evidence is "additional evidence of the same kind to the same point" (quotations omitted)). Thus, the defendant has failed to demonstrate that the trial court erroneously admitted the threats under the first prong of the Rule 404(b) analysis. Under the third prong, the defendant argues that the prejudicial effect of the threats outweighs their minimal probative value. Specifically, he argues that they are highly prejudicial because: (1) they were violent threats against his cousin, a teen-aged girl; (2) they are similar to the charged acts because the threats and the charged acts are both violent; and (3) he used vulgar language in the telephone calls. The defendant also argues that the calls contain prejudicial statements that have no probative value, specifically pointing to his statement that "Katie" is "crazy" and his mother's response that the defendant is as well. The State counters that the threats were only minimally prejudicial, given that: (1) the trial court admitted redacted versions of only three telephone calls; (2) the threats and vulgar language were not so inflammatory that they would provoke juror outrage and render the threats unfairly prejudicial; (3) the threats were not so similar to the shooting as to render them inadmissible; and (4) the trial court instructed the jury that it could consider the threats as they were probative of Senter's credibility. The State also argues that the defendant's comment about "Katie" and his mother's reply were not unduly prejudicial and were probative of how far the defendant was willing to go to pressure Senter. Alternatively, the State argues that the threats did not prejudice the defendant and that their admission was harmless beyond a reasonable doubt. Under the third prong of Rule 404(b), evidence of bad acts "is admissible if the danger of unfair prejudice to the defendant does not substantially outweigh the probative value of the evidence." Beltran, 153 N.H. at 649. "Evidence is unfairly prejudicial if its primary purpose or effect is to appeal to a jury's sympathies, arouse its sense of horror, or provoke its instinct to punish, or trigger other mainsprings of human action that may cause a jury to base its decision upon something other than the established propositions in the case." Id. "It is not, however, evidence that is merely detrimental to the defendant because it tends to prove his guilt." Id. "Among the factors we consider in weighing the evidence are: (1) whether the evidence would have a great emotional impact upon a jury; (2) its potential for appealing to a juror's sense

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of resentment or outrage; and (3) the extent to which the issue upon which it is offered is established by other evidence, stipulation or inference." Costello, 159 N.H. at 123. "We accord considerable deference to the trial court's determination in balancing prejudice and probative worth under Rule 404(b)." Beltran, 153 N.H. at 649. "To prevail, the defendant must show that the trial court's ruling was clearly untenable or unreasonable to the prejudice of his case." Id. "Particularly pertinent to determining this balance is whether the evidence is relevant to prove an issue that is actually in serious dispute." State v. Pepin, 156 N.H. 269, 278-79 (2007). "First, we consider the probative value of the evidence." State v. Kim, 153 N.H. 322, 330 (2006). "When evidence presents a potential for prejudice, such evidence must possess significantly greater probative value." Id. at 331. As discussed above, the defendant's threats were highly probative of Senter's credibility

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