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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 ___________________________ Hillsborough-northern judicial district No. 2010-402 THE STATE OF NEW HAMPSHIRE v. RODERICK DAVIDSON Argued: October 20, 2011 Opinion Issued: April 10, 2012 Michael A. Delaney, attorney general (Elizabeth C. Woodcock, assistant attorney general, on the brief and orally), for the State. Lisa L. Wolford, assistant appellate defender, of Concord, on the brief and orally, for the defendant. CONBOY, J. The defendant, Roderick Davidson, appeals his conviction, following a jury trial, on three counts of simple assault and one count of criminal mischief. He argues that the Superior Court (Mohl, J.) erred by: (1) denying his motions in limine to exclude evidence that he "controlled" the complainant; and (2) denying his request for a defense of property instruction. We affirm in part, reverse in part, and remand. The jury could have found the following facts. In October 2009, the defendant and the complainant lived together. On October 11, they were both

at work at the Olive Garden restaurant in Manchester when the defendant became upset because of an interaction between the complainant and a male manager. Consistent with their habit of "br[eaking] up every other day," the defendant broke up with the complainant. They nonetheless drove home together, napped together for about three hours, and then went to dinner together at a restaurant. After dinner, during which they both consumed some alcohol (the respective amounts of which are contested), the defendant and the complainant split payment of the bill, but the defendant paid a smaller portion. The defendant then drove the couple home, where they began to argue about money. The complainant insisted that they talk, attempting to speak to the defendant through a closed door and calling his cellular telephone number repeatedly. Later, when the defendant was sitting on a couch with his wallet and keys on a nearby table, the complainant grabbed the keys with the purpose of preventing the defendant from driving, and with them headed up the stairs. The defendant followed her. The complainant testified that during the ensuing struggle over the keys, the defendant grabbed her as she was halfway up the stairs and threw her into a wall; the defendant testified that he and the complainant fell together on the stairs. The accounts agree that the complainant ended up on her back at the bottom of the stairs with the defendant above her, and that his hand made contact with her face. The complainant testified that the defendant twisted her arm and told her he would break it. The defendant ultimately recovered the keys and went out to his car. The complainant followed the defendant and stood behind his car, blocking his departure. When she moved from the rear to the side of the car, calling the defendant repeatedly and knocking on his window, the defendant put the car into reverse and pressed the accelerator. The side view mirror made contact with the complainant and was dislodged. The complainant reentered their home and locked the door. After realizing the mirror had been dislodged, the defendant returned to the home. He testified that when he pounded on the bolted door, the complainant opened it and let him in; she testified that the defendant pounded on the door before opening it with his key. The defendant then attempted to barricade himself in the bedroom. When the complainant insisted that he leave the bedroom, he knocked a hole in the bedroom door with either his fist or his elbow. The following day, the complainant had a bruised eye, which she tried to conceal with makeup. After speaking with several people, she ultimately decided to go to the police. The defendant sent several "angry" and "spiteful" text messages to the complainant, including, "I see u put makeup on u f***ing crazy slut. Who r u f***ing now?"; "Where the f*** r u"; "TELL ME WHERE YOU

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ARE"; and "U r full of sh**, tell me where u are." The defendant moved out of the home that afternoon. That evening, the defendant sent the complainant another text message, apologizing and telling the complainant, "The door will be taken care of." The defendant was charged with: three counts of simple assault stemming from the physical contact inside the apartment; criminal mischief, based upon damage to the bedroom door; reckless conduct, based upon the car's contact with the complainant; and criminal threatening, based upon the defendant's alleged threat to break the complainant's arm. The defendant was convicted of criminal mischief and the three counts of simple assault, but was acquitted of reckless conduct and criminal threatening. This appeal followed. The defendant first argues that the trial court erred in denying his two motions in limine seeking to exclude evidence under New Hampshire Rule of Evidence 404(b) (regarding the inadmissibility of character evidence). The defendant's first motion in limine sought to exclude testimony tending to suggest that he was "controlling" and set rigid behavioral rules for the complainant, the admission of which, he argued, violated New Hampshire Rules of Evidence 401, 402, 403, 404(a), 404(b), and 608, as well as his state and federal due process rights. The evidence included testimony that the complainant had previously sought a restraining order against the defendant; that the defendant had broken up with the complainant at work because she was speaking with a male manager; that he was controlling and jealous; that he did not allow her to speak with other males and rarely allowed her to wear makeup; that he was verbally cruel to her at work; and that he had previously assaulted her. The second motion asserted that the content of some of his text messages to the complainant, sent the day after the incident, was inadmissible under New Hampshire Rules of Evidence 401, 402, 403, and 404. "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). As to the criminal mischief conviction stemming from the damage to the apartment's bedroom door, the defendant appears to have conceded the facts underlying that conviction. Compare the charging document (alleging that defendant "did commit the crime of Criminal Mischief in that, having no right to do so nor any reasonable basis for belief of having such a right, the defendant recklessly damaged the property of another when he punched a hole in a door inside the apartment of [the complainant], contrary to the form of the Statute") with defendant's testimony at trial (stating that he damaged the door by putting a hole in it with his elbow because "[he] was just upset. . . . [he]'d had enough"), and acknowledgement in his brief ("`Stressed' and aggravated that [the complainant] wouldn't stop yelling at him, [the defendant] elbowed the bedroom door, putting

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a hole in it."). See RSA 626:2, II(c) (2007) (defining "`Recklessly'"); RSA 626:2, III (2007) ("When recklessness suffices, the element is also established if the person acts purposely or knowingly."). Thus, as to this charge, the defendant cannot demonstrate that the court's rulings were "clearly untenable or unreasonable to the prejudice of his case." Id.; see also State v. Stott, 149 N.H. 170, 172 (2003). We therefore affirm that conviction, and turn to the defendant's claims of error as to his simple assault convictions. Before and during trial, the defendant argued that the evidence of his controlling behavior was irrelevant, unfairly prejudicial, and constituted inadmissible "propensity" character evidence. The State responded that it did not seek to admit evidence of the defendant's prior conduct to show that he acted in conformity therewith, but rather "to show the defendant's motive and intent at the time." It argued that the defendant's "state of mind during the charged conduct [was] relevant," both for the purpose of establishing his motive for the charged conduct, and to counter his argument that he was acting only in defense of his property. In ruling on the admissibility of the evidence of the defendant's allegedly controlling behavior, the trial court distinguished between opinions that the defendant was a controlling person, which it excluded as inadmissible character evidence, and "facts" of the defendant's controlling behavior (including statements), which it found admissible to provide "context." The trial court ruled: It's my view that in order to understand this case, the jury has to understand the context in which it is presented, and for that reason, statements that the defendant may have made in the recent time period of the alleged assaults are, in my view, that describe the relationship and his alleged controlling behavior, are admissible, because I think the jury has to understand the context in which this case is set. . . . [F]acts that demonstrate that behavior are admissible in my judgment. With regard to the text messages, the court ruled that they were likewise relevant "[t]o the extent [they] deal[t] with the question of controlling behavior." The court did not issue a limiting instruction concerning the purposes for which the jury could consider the evidence. The court further ruled that evidence of prior assaults would be excluded, unless the defense crossexamined the complainant as to her delay in reporting the charged conduct. At trial, the defendant's "controlling" behavior was a central theme of the State's case, beginning with its opening statement and continuing throughout its witness examinations. The defendant maintains that evidence of his alleged "controlling behavior" was inadmissible under Rule 404(b), and that its

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admission prejudiced his case. He argues that the State failed to establish a clear and logical connection between the evidence of his alleged controlling behavior and the charged conduct, and failed to provide clear and convincing evidence that the alleged controlling behavior had occurred. He further asserts that the prejudicial effect of the evidence, which cast him as a domestic abuser, substantially outweighed any probative value. The State responds that Rule 404(b) does not apply because the evidence was in the form of the defendant's statements, which "were not, in and of themselves, bad acts." It asserts that his statements were admissible under Rule 801(d)(2)(A) as statements of a party-opponent, and, therefore, the test of their admissibility is set forth in Rule 403 (regarding exclusion of relevant evidence). The State argues further that, even if the evidence were subject to a Rule 404(b) analysis, it was properly admitted as evidence of the defendant's motive and intent. Assuming that the text messages constituted "statements," rather than prior "bad acts," but see, e.g., State v. Pepin, 156 N.H. 269, 275-79 (2007) (analyzing verbal threat under Rule 404(b)), we conclude that the "controlling behavior" evidence nonetheless consisted of intertwined statements and actions subject to analysis under Rule 404. See, e.g., State v. Richardson, 138 N.H. 162, 164-65 (1993) (analyzing defendant's intertwined statements and behavior shortly preceding charged events under Rule 404(b)). "The purpose of Rule 404(b) in a criminal trial is to ensure that the defendant is tried on the merits of the crime as charged and to prevent a conviction based on evidence of other crimes or wrongs." McGlew, 139 N.H. at 509 (quotations omitted). "The concern that a defendant might be convicted because of his character is the gravamen of Rule 404(b)." Id. Thus, in order for evidence to be admissible under Rule 404(b), it "must be relevant for a purpose other than proving the defendant's character or disposition; there must be clear proof that the defendant committed the act; and the probative value of the evidence must not be substantially outweighed by its prejudice to the defendant." Id. at 507. Here, the defendant challenges the trial court's decision under all three prongs of the Rule 404(b) analysis. "To meet the relevancy requirement, the other bad acts evidence must have some direct bearing on an issue actually in dispute, and there must be a clear connection between the particular evidentiary purpose, as articulated to the trial court, and the other bad acts." State v. Kirsch, 139 N.H. 647, 654 (1995) (quotations, citations, and brackets omitted). To admit evidence over a defendant's Rule 404(b) objection, "the State is required to state the specific purpose for which the evidence is offered and 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,

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character, or propensity." State v. Glodgett, 144 N.H. 687, 690 (2000) (quotations and ellipsis omitted). "The trial court then must articulate for the record the theory upon which the evidence is admitted." Id. at 690-91 (quotations omitted). "Whether the court adopts the State's theory, a variation, or an alternative, the court must explain precisely how the evidence relates to the disputed issue, without invoking propensity." McGlew, 139 N.H. at 510. Here, the State offered the evidence as proof of the defendant's motive and intent, and to counter his asserted justification defense. The trial court, however, admitted the defendant's statements and "facts that demonstrate" the defendant'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). "We have indicated that context may be among these other purposes." Id. However, "[t]o be relevant, this evidence must still have some direct bearing on an issue actually in dispute, apart from its tendency to show propensity." Id. We have previously held that the context of a relationship may be relevant if the State establishes an acceptable nonpropensity purpose under Rule 404(b). E.g., State v. Beltran, 153 N.H. 643, 648-49 (2006) (evidence of the defendant's abuse of his girlfriend, a prosecution witness, held admissible to explain her participation in criminal conduct, her delay in reporting, and her initial false statements to police); State v. Roberts, 136 N.H. 731, 747 (1993) (in witness tampering prosecution, testimony of defendant's prior sexual relationship with witness involving exchange of drugs and money for sex was relevant to defendant's belief that the witness would testify in the underlying prostitution and drug conspiracy cases); State v. Simonds, 135 N.H. 203, 207 (1991) (evidence of defendant's prior indictments for sexually assaulting the victim admissible as probative of his specific intent to touch her for the purpose of sexual arousal or gratification rather than innocently); State v. Gruber, 132 N.H. 83, 89 (1989) (in an insurance fraud case, evidence of defendant's relationship with the woman who "stole" his property admissible to show that he intended to deceive the insurance company). Here, the defendant objected both before and at trial to admission of the evidence on the basis that it reflected only his propensity to commit the charged crimes. Before ruling that the evidence was relevant to establish the "context" of the case, the trial court asked defense counsel, "Why don't you tell me why all this [evidence of the defendant's controlling behavior] is not relevant in a domestic

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