The opinion of the court was delivered by: Conboy, J.
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 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 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 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 ...