Introduction

In State v. Moses, 2025 N.H. 36 (N.H. Aug. 14, 2025), the Supreme Court of New Hampshire reversed multiple domestic-violence-related convictions after holding that three sets of “other‑acts” evidence were erroneously admitted under New Hampshire Rule of Evidence 404(b): (1) a prior uncharged July 2020 assault by the defendant on the complainant; (2) evidence that the complainant obtained a civil protective order (restraining order) on August 6, 2020; and (3) evidence that, months later, the defendant placed a collect call in violation of that order. The opinion meaningfully tightens the admissibility of “context” or “whole story” rationales under Rule 404(b) and underscores the special risk of unfair prejudice when jurors learn that a protective order was issued under a lower burden of proof in separate proceedings.

The parties’ relationship deteriorated amid financial disputes. After an alleged July altercation in which the defendant punched the complainant, an August 2020 fight culminated in threats to kill and multiple episodes of choking. The complainant fled, obtained a domestic violence restraining order the next day, and the defendant later attempted a collect call from jail that was not accepted. A jury convicted on all but one count. On appeal, the defendant challenged the pretrial rulings admitting the prior assault, the restraining order, and the later violation call. Applying the Rule 404(b) three-part test and Rule 403 balancing, the Court concluded all three rulings were an unsustainable exercise of discretion and that the errors were not harmless beyond a reasonable doubt.

Summary of the Opinion

The Court, per Justice Donovan, reversed and remanded. It held:

• The July 2020 uncharged assault was inadmissible under Rule 404(b)’s third prong because its probative value was substantially outweighed by unfair prejudice. The prior act was highly similar to the charged conduct (arguments escalating into physical violence), magnifying the risk that jurors would make a forbidden propensity inference. Meanwhile, the State already had powerful evidence of the defendant’s “purpose to terrorize” (explicit threats to kill and to break the complainant’s neck during the charged incident), rendering the prior assault comparatively unnecessary and minimally probative.
• Evidence that the complainant obtained a restraining order was likewise inadmissible. Although the State and trial court viewed it as relevant to credibility and relationship context, the Supreme Court found that its probative value was substantially outweighed by unfair prejudice because jurors could infer that “another court” had already credited the complainant and imposed restrictions to protect her, and—critically—because protective orders issue on a lower civil burden (preponderance of the evidence) than the criminal standard of proof beyond a reasonable doubt.
• The October 2020 telephone call, placed in violation of the restraining order, was also inadmissible. The “tell the whole story” or “context” rationale could not be satisfied without relying on propensity (“the defendant tends to do bad things in this relationship”), which Rule 404(b) forbids as any link in the chain of relevance. The State did not articulate a non‑propensity chain showing how the call fairly connected to a material, disputed issue in the charged crimes.
• The cumulative admission of all three categories of evidence was not harmless beyond a reasonable doubt. The case turned on witness credibility; the erroneously admitted evidence was inflammatory or suggestive of dangerousness; there was no limiting instruction; and the State itself stressed that the complainant’s testimony was “the crux” of the case. The Court could not conclude that the verdicts were unaffected.

Analysis

Precedents Cited and Their Influence

• State v. Nightingale, 160 N.H. 569 (2010): Frames the appellate lens. Because the trial court ruled pretrial, the Supreme Court evaluated admissibility based solely on the pretrial hearing record, guarding against “sandbagging” by justifying rulings with trial responses. This constrains the State to the relevance theory it articulated before trial.
• State v. Tufano, 175 N.H. 662 (2023): Reaffirms Rule 404(b)’s purpose—to prevent convictions based on character or propensity—and the “chain of inferences” requirement: any link relying on propensity is impermissible. Tufano’s admonition becomes the backbone for rejecting “context” where the relevance chain smuggles in character inferences.
• State v. Belonga, 163 N.H. 343 (2012): Emphasizes that similarity between prior acts and charged crimes heightens unfair prejudice because jurors may infer “once a batterer, always a batterer.” Moses applies this directly to the July 2020 assault.
• State v. Thomas, 168 N.H. 589 (2016): In Rule 403/404(b) balancing, probative value diminishes when the State already has other strong evidence on the same point. Moses uses Thomas to hold that explicit death threats during the charged incident made the prior assault largely unnecessary to prove “purpose to terrorize.”
• State v. Brewster, 147 N.H. 645 (2002) and State v. Richardson, 138 N.H. 162 (1993): Both sustained admission of prior acts because intent was placed “in serious dispute.” Moses distinguishes them in a footnote: here, although intent was not conceded, it was not “squarely at issue” given the defendant’s contemporaneous threats; hence the incremental probative value of the prior assault was low.
• State v. Roy, 167 N.H. 276 (2015): Clarifies that Rule 404(b)’s third prong employs the same balancing as Rule 403. Moses leans on this equivalence to exclude the restraining order and subsequent call due to unfair prejudice outweighing any probative value.
• State v. Russell, 159 N.H. 475 (2009): Requires the State to articulate a precise, non‑propensity chain of reasoning and, for subsequent acts, to show temporal proximity and a significant connection to material issues. Moses invokes Russell to reject the October call as insufficiently connected and as grounded in propensity.
• State v. Melcher, 140 N.H. 823 (1996): Acknowledges that “context” can be a valid non‑propensity purpose, but only if it bears directly on a disputed issue without inviting character inferences. Moses quotes Melcher to hold that here “context” was “merely a synonym for propensity.”
• State v. Yates, 152 N.H. 245 (2005): Cautions against evidence that effectively tells the jury an event “was a crime,” because it is highly prejudicial. Moses analogizes: admission of the restraining order signals that another court, applying a lower standard, already credited the complainant’s need for protection.
• State v. Boudreau, 176 N.H. 1 (2023): Provides the multi‑factor harmless error framework and the requirement that the State prove harmlessness beyond a reasonable doubt. Moses uses these factors to find the errors not harmless.
• State v. Bassett, 139 N.H. 493 (1995): Recognizes inherent prejudice in prior‑crimes evidence. Moses leverages this in assessing the cumulative prejudicial impact.
• State v. Walsh, 139 N.H. 435 (1995) and RSA 173-B:5, I: Walsh restates the beyond-a-reasonable-doubt standard for the State’s proof at criminal trial, contrasted with the preponderance standard for civil protective orders under RSA 173-B. Moses relies on this mismatch to emphasize the unfair prejudice in admitting the existence of the restraining order.

Legal Reasoning in Depth

1. The July 2020 Prior Assault: High Similarity, Low Incremental Value

The Court bypassed Rule 404(b)’s first prong (non‑propensity purpose) and resolved admissibility on the third prong: probative value versus unfair prejudice. The State argued the July assault supported the “purpose to terrorize” element of criminal threatening. But two considerations drove exclusion:

• Heightened prejudice due to similarity: Both the prior and charged incidents began as arguments escalating into physical violence, including punching. Per Belonga, this invites exactly the inference Rule 404(b) forbids: that the defendant likely assaulted in August because he assaulted in July.
• Minimal added value: The State’s own proffer established that, during the charged incident, the defendant threatened to kill the complainant and to break her neck while choking her. Under Thomas, when direct evidence already strongly shows purpose/intent, earlier prior acts become comparatively unnecessary. Here, the jury did not need the July assault to infer a “purpose to terrorize”; the threats accompanying the charged conduct sufficed.

The Court also distinguished Brewster and Richardson: those cases admitted prior acts because the defendants put intent “in serious dispute.” In Moses, although intent was contested in a general sense, it was not squarely at issue given the contemporaneous threats, making the July assault’s probative increment too small relative to its prejudicial weight.

2. The Restraining Order: Credibility and Context Theories Collapse into Prejudice and Propensity

The trial court permitted the State to inform the jury that the complainant obtained a restraining order the day after the charged incident, reasoning it was relevant to her credibility and to the “context” of the relationship. The Supreme Court rejected both theories.

• Credibility bolstering via a prior judicial order is unduly prejudicial: Jurors could infer that another court had already credited the complainant’s account and deemed legal protection necessary. This risk is aggravated because civil protective orders issue on a preponderance of the evidence, not beyond a reasonable doubt. The admission thus creates a powerful, unfair signal that the system has pre‑validated the complainant’s claims.
• Context as a proxy for propensity: Labeling the restraining order as “context” only makes sense if one assumes that the defendant’s conduct required judicial intervention—i.e., he has a tendency to do wrong in this relationship. Rule 404(b) prohibits any link in the relevance chain that relies on character or predisposition. Without a concrete, non‑propensity issue to which the order directly relates, the “context” justification fails under Tufano and Melcher.

3. The October 2020 Violation Call: “Whole Story” Is Not a Free Pass

The trial court admitted the defendant’s later, unanswered collect call—made while incarcerated in violation of the protective order—to “tell the whole story.” The Supreme Court reiterated that “whole story” is simply another name for “context,” and context is admissible only if it bears directly on a disputed issue without propensity leakage. Applying Russell and Melcher:

• No precise, non‑propensity chain: The State did not demonstrate how the call (months after the charged incident, containing no threats, and not accepted) made a material disputed fact about the charged crimes more or less likely, except by suggesting the defendant flouts legal boundaries with the complainant—i.e., propensity.
• Weak temporal and logical connection: Russell requires that subsequent acts be “fairly close in time” and connected “in some significant way” to the material events. An unanswered call months later, in a different context (incarceration), is too attenuated to illuminate the elements of the August crimes without relying on character inferences.

Harmless Error: Cumulative Prejudice in a Credibility Case

Using Boudreau’s multifactor framework, the Court held the errors were not harmless beyond a reasonable doubt:

• Centrality of credibility: The State emphasized that “the crux” of the case was the complainant’s testimony. The erroneous evidence plausibly tipped the credibility balance.
• Inflammatory effect and cumulative impact: The July assault painted the defendant as violent; the restraining order and violation suggested judicially recognized dangerousness and law‑breaking tendencies. The complainant testified that the October call made her feel the order would not “stop [the defendant] from killing [her],” an especially potent statement likely to sway jurors.
• No limiting instruction: The jury received no instruction restricting the permissible use of the Rule 404(b) evidence, allowing consideration for any purpose—including precisely the propensity inference the rules forbid.
• Absence of overwhelming proof: The jury acquitted on one count, and nothing else neutralized the risk that the improperly admitted evidence affected the verdicts on the remaining counts.

Given the totality of circumstances, the State did not meet its burden to prove harmlessness beyond a reasonable doubt. Reversal was required.

Impact and Practical Implications

Moses sets important constraints on the use of “context” evidence in domestic violence prosecutions and beyond. Its practical guidance includes:

• Protective orders are fraught with prejudice: Evidence that a civil restraining order was issued—especially when unrelated to a charged “violation of protective order” offense—carries a pronounced risk that jurors will infer prior judicial crediting and dangerousness. The mismatch in burdens of proof (RSA 173‑B’s preponderance vs. the criminal standard) will loom large in Rule 403/404(b) balancing.
• “Context” is not a catch‑all: New Hampshire reaffirms that “context” or “tell the whole story” is not a free pass around Rule 404(b). The State must articulate a precise, non‑propensity chain of relevance to a materially disputed issue. If any step in the chain rests on “he tends to do bad things,” the evidence fails.
• Similarity cuts against admissibility: When a prior act closely mirrors the charged offense, the unfair‑prejudice risk rises sharply. Prosecutors must show that the probative value is not only legitimate but also necessary—particularly when other evidence (e.g., contemporaneous threats) already addresses the same element.
• Subsequent acts must be closely connected: For later conduct (like a phone call months after), Russell demands temporal proximity and a significant, non‑propensity connection to the charged events. Ambiguous, attenuated acts are unlikely to survive.
• Limiting instructions matter: If any Rule 404(b) evidence is admitted, trial courts should issue timely, specific limiting instructions identifying the permitted non‑propensity purpose. Moses emphasizes how the absence of such instructions compounds prejudice on appeal.
• Prosecutorial strategy:
  • Reserve protective‑order evidence for situations where it directly proves a material element (e.g., a charge of violating the order), or where the non‑propensity link is concrete (e.g., an attempt to influence testimony on the pending case showing consciousness of guilt).
  • When intent is not “in serious dispute,” avoid piling on prior assaults; rely instead on direct evidence from the charged incident, and consider stipulations or redactions that minimize prejudice.
• Defense practice:
  • Use motions in limine to force the State to articulate the non‑propensity chain and to highlight the burden‑of‑proof mismatch for protective orders.
  • Request specific limiting instructions if any other‑acts evidence is admitted, and preserve objections to “context” or “whole story” rationales that mask propensity.
• Trial courts:
  • Make explicit Rule 404(b) findings, including the precise non‑propensity purpose and the chain of reasoning connecting the evidence to a disputed issue.
  • Weigh similarity, necessity (availability of alternative proof), and the burden‑of‑proof disparity for civil orders when conducting Rule 403/404(b) balancing.

Complex Concepts Simplified

Rule 404(b) (Other‑acts evidence)

A rule that generally bars evidence of a person’s other crimes, wrongs, or acts to show that they have a bad character and therefore probably acted that way again. Such evidence may be admitted only for another, specific purpose (like motive or intent) if (1) it really helps prove that purpose (not character), (2) there is sufficient proof the act occurred, and (3) its value is not substantially outweighed by the risk of unfair prejudice.

Unfair prejudice

The danger that evidence will cause jurors to decide based on emotion, shock, or a desire to punish, rather than on the actual facts of the charged offense. Prior‑bad‑acts evidence is inherently risky because it tempts “once a wrongdoer, always a wrongdoer” reasoning.

“Context” or “Whole story” evidence

Background facts that can help jurors understand the narrative. In New Hampshire, “context” can be a permissible purpose only if it directly bears on a disputed issue without relying on character inferences. Simply calling it “context” does not bypass Rule 404(b).

Burden of proof mismatch

Criminal convictions require proof beyond a reasonable doubt. Civil protective orders (RSA 173‑B) generally issue on a preponderance of the evidence. Telling a jury about a civil order risks conveying that another court already believed the complainant—even though the standard there was lower.

Purpose to terrorize

An element of certain criminal threatening offenses requiring proof that the defendant acted with a particular mental state—to cause extreme fear. In Moses, contemporaneous threats during the charged incident provided direct evidence of this purpose, diminishing the need for prior‑act evidence.

Motions in limine

Pretrial requests for rulings on admissibility to prevent prejudicial evidence from reaching the jury. Appellate review of such rulings in New Hampshire is limited to the pretrial record on which the trial court ruled.

Harmless error beyond a reasonable doubt

Even if a trial error occurred, a conviction stands if the State can show, beyond a reasonable doubt, that the error did not affect the verdict. Courts examine the whole trial record, the importance and frequency of the error, corroboration, and whether the case hinged on credibility.

Conclusion

State v. Moses reinforces a disciplined approach to Rule 404(b) in New Hampshire and delivers two clear messages. First, courts must not admit prior‑acts evidence—especially highly similar prior assaults—when its incremental value is low because the State already has direct proof of intent or purpose; similarity magnifies prejudice and invites propensity reasoning. Second, the mere desire to “tell the whole story” cannot justify admitting civil protective orders or subsequent violations where the relevance chain necessarily relies on character inferences or on implied judicial endorsement granted under a lower burden of proof.

In domestic violence prosecutions, Moses is a cautionary guide: protective‑order evidence and later violations are rarely admissible to bolster credibility or provide context unless the State can articulate and prove a tight, non‑propensity linkage to a disputed, material issue, with probative value that clearly outweighs prejudice and accompanied by careful limiting instructions. Because those conditions were not met—and because the errors were cumulatively prejudicial in a credibility‑driven case—the Supreme Court reversed and remanded, setting a precedent that will shape evidentiary practice in New Hampshire trial courts for years to come.