The defendant, Sherry L. Wiggins, appeals her conviction, following a jury trial in superior court, on charges of accomplice to theft, see RSA 626:8 (2007); RSA ch. 637 (2007 & Supp. 2013), and driving while certified as a habitual offender, see RSA 262:23 (2004 & Supp. 2013). The defendant contends that the trial court erred by admitting evidence of a prior act for the purpose of establishing her intent as to the accomplice charge and her identity as to the habitual offender charge. See N.H. R. Ev. 404(b). We affirm in part, reverse in part, and remand.
For evidence to be admissible under New Hampshire Rule of Evidence 404(b): (1) it must be relevant for a purpose other than proving the defendant's character or disposition; (2) there must be clear proof that the defendant committed the prior act; and (3) the probative value of the evidence must not be substantially outweighed by its prejudice to the defendant. State v. Cassavaugh, 161 N.H. 90, 96 (2010). The admissibility of evidence is a matter within the trial court's broad discretion. State v. Ericson, 159 N.H. 379, 387 (2009). We review the trial court's admission of evidence pursuant to Rule 404(b) for an unsustainable exercise of discretion. Id. We will reverse the trial court's decision only if it was clearly untenable or unreasonable to the prejudice of the defendant's case. Id.
We first address the defendant's contention that the evidence was not relevant to the issue of her intent with reference to the accomplice to theft charge. To meet the first requirement under Rule 404(b), 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. Ericson, 159 N.H. at 388. When a culpable mens rea is an element of the charged offense and the defense has not conceded the element, the issue of intent is sufficiently disputed as to require evidence at trial. State v. Addison (Capital Murder), 165 N.H. __, __, 87 A.3d 1, 78 (2013). Because people rarely explain the inner workings of their minds, a defendant's culpable mental state must, in most cases, be proven by circumstantial evidence, and the fact finder may draw relevant inferences on the issue of intent from the defendant's conduct. Id. Evidence of a defendant's prior acts may be critical to establishing the defendant's state of mind on the charged offense, even though it also implicates criminal propensity or bad character. Id.
In this case, the State was required to prove that the defendant "acted with a purpose that the crime of theft be committed." See RSA 637:2, III; RSA 626:8 (2007). In addition, the defendant contested the issue of her intent. The defendant's prior act of entering a store with her husband, placing items quickly into a bag, and then secreting the bag in a display upon noticing the loss prevention officer was probative of her knowledge that her husband intended to steal on the charged occasion and her purpose that he should do so. See State v. Trainor, 130 N.H. 371, 374 (1988) (evidence of prior fraud relevant to show that defendant knew he was engaged in criminal conduct in charged act).
The defendant next contends that even if the evidence was relevant to show her intent, it was "unfairly prejudicial" because "there was a great degree of similarity between the uncharged conduct and charged offense." We accord considerable deference to the trial court's determination in balancing the prejudice and probative worth of evidence under Rule 404(b). Cassavaugh, 161 N.H. at 98. Although the proper balancing cannot be reduced to formulae, we have identified several factors for the trial court to consider, including: (1) whether the evidence would have a great emotional impact upon a jury or great potential for appealing to a juror's sense of resentment or outrage; (2) the extent to which the issue upon which it is offered is established by other evidence, stipulation, or inference; and (3) whether the evidence is relevant to prove an issue that is actually in serious dispute. Addison, 165 N.H. at __, 87 A.3d at 81. Particularly pertinent to determining this balance is whether the evidence is relevant to prove an issue that is actually in serious dispute. Id.
Generally, the greater the similarity between the prior act and the charged act, the greater is the potential for unfair prejudice. Id. The trial court must examine the nature of the prior acts evidence to determine whether it is inflammatory in a manner that would arouse the emotions of a jury and cause the jury to decide the case based upon emotion rather than reason. Id. However, even when the nature of prior acts evidence gives rise to a significant potential for prejudice, that potential is frequently outweighed by the relevance of the evidence when a defendant's intent is a contested issue in the case. Id.
As noted above, in this case, whether the defendant intended that theft be committed was an element of one of the charges and disputed by the defendant. Therefore, the probative value of the prior act evidence was significant. See Cassavaugh, 161 N.H. at 98 (finding prior threat to kill murder victim highly probative of whether defendant's subsequent intent was deliberate and premeditated). Although the prior act was similar to the charged act, it was not likely to have an emotional impact on the jury or to appeal to its sense of resentment or outrage. Furthermore, the factual similarity made the prior act relevant to the defendant's intent in the charged act. Cf. State v. Bassett, 139 N.H. 493, 501 (1995) (lack of factual similarity prevented prior bad acts from being relevant to defendant's state of mind). Accordingly, we conclude that the trial court did not unsustainably exercise its discretion when it admitted evidence of the defendant's prior act under Rule 404(b) as relevant to her intent that a theft be committed.
We next address the defendant's argument that the trial court erred by admitting evidence of the prior act for the purpose of establishing her identity with reference to the habitual offender charge. She contends that the prior act evidence was "irrelevant on the question of [her] identity as the person who drove the van." We agree. The evidence of the prior act did not include any testimony that the defendant was driving a vehicle after she and her husband left the store on that occasion. Therefore, any connection between the prior act and the defendant's identity as the driver in the charged act would necessarily rest on her character. The admission of improper character evidence is inherently prejudicial. State v. Davidson, 163 N.H. 462, 471 (2012). Thus, we conclude that the trial court erred.
The State does not respond to the defendant's argument on this issue and does not assert that any error was harmless. See id. (State bears burden of proving error harmless beyond reasonable doubt). We note that the record contains direct testimony from the loss prevention officer that, on the charged occasion, he saw the defendant drive the vehicle from the store parking lot. However, given the circumstances in this case, and because the State does not argue harmless error, we conclude that the defendant has established that the trial court's admission of the prior act evidence with reference to the habitual offender charge was untenable or unreasonable to the prejudice of her case.
Affirmed in part; reversed in part; ...