(c) When the actor coerces the victim to submit by threatening to use physical violence or superior physical strength on the victim, and the victim believes that the actor has the present ability to execute these threats. Although this issue is one of first impression, our decision in State v.Kulikowski, 132 N.H. 281, 564 A.2d 439 (1989), is instructive. In Kulikowski, the defendant was found guilty of, among other things, three counts of aggravated felonious sexual assault based upon indictments that alleged a violation of a prior version of the statute here at issue, RSA 632-A:2, III, which required proof that the defendant "coerce[d] the victim to submit by threatening to use physical violence or superior physical strength on the victim, and the victim believe[d] that the actor ha[d] the present ability to execute these threats."

Although this test must be applied before evidence of " other crimes, wrongs or acts" may be admitted, Rule 404(b) does not apply here. SeeState v. Kulikowski, 132 N.H. 281, 287, 564 A.2d 439 (1989). The challenged conversations are not " other crimes, wrongs or acts," but rather are " inextricably intertwined with evidence of the crime charged in the indictment."

We note that we have not previously referred to this type of testimony as res gestae evidence; however, we have held that Rule 404(b) does not preclude the admission of such evidence. See, e.g.,Hall , 148 N.H. at 675, 813 A.2d 501 (upholding trial court's ruling that testimony that defendant in felonious sexual assault case asked victim to kiss her female cousin did not amount to prior bad act, but was "part and parcel" of same episode); State v. Martin, 138 N.H. 508, 517, 643 A.2d 946 (1994) (affirming decision to admit defendant's threats to victim, which included statements that defendant killed victim's dog, because threats "were a material part of the entire course of conduct surrounding the commission of the alleged" aggravated felonious sexual assaults); State v. Kulikowski, 132 N.H. 281, 287, 564 A.2d 439 (1989) (affirming decision to admit evidence of coercive behavior occurring years before charged crime of aggravated felonious sexual assault because earlier incidents "constituted evidence of the very threat which coerced the victim during the assaults in question"). Although intrinsic evidence is not barred by Rule 404(b), it must nonetheless satisfy the balancing test set forth in Rule 403.

Id. (emphasis added); seeState v. Kulikowski, 132 N.H. 281, 285, 564 A.2d 439 (1989). We have defined "threat" for purposes of RSA 632–A:2 as "any menace of such a nature and extent as to unsettle the mind of the person on whom it operates, and to take away from her acts that free and voluntary action which alone constitutes consent."

The evidence at issue is direct evidence of the defendant's agreement with Bell-Rogers to commit the robbery, and accordingly, does not constitute evidence of " other crimes, wrongs, or acts." SeeMartin, 138 N.H. at 518, 643 A.2d 946; State v. Kulikowski, 132 N.H. 281, 287, 564 A.2d 439 (1989). " The appropriate test for admissibility in this instance, therefore, is contained in Rule of Evidence 403, which permits the exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice."

However, Rule 404(b) is inapplicable here because the evidence of the defendant's drug use was not evidence of “other crimes, wrongs, or acts,” but evidence of acts which constituted part of the crimes charged. Cf. State v. Kulikowski, 132 N.H. 281, 287, 564 A.2d 439 (1989) (evidence of threats or coercive behavior not evidence of “other crimes, wrongs, or acts” but “evidence of the very threat which coerced the victim during the assaults in question”). Because the toxicology evidence was relevant, offered for reasons other than to prove the defendant's propensity to use drugs, and the trial court found that its probative value was not substantially outweighed by the danger of unfair prejudice, we conclude that the trial court's ruling was not clearly untenable or unreasonable.

[6] Viewing all of this evidence in the light most favorable to the State, Richardson, 138 N.H. at 169, 635 A.2d at 1366, we hold that a rational jury could have concluded that Carter used his position of authority to coerce the victim through undue psychological influence into submitting to the sexual acts. Cf. State v. Kulikowski, 132 N.H. 281, 285, 564 A.2d 439, 442 (1989) (where State sought to prove coercion by threatening, coercion may be shown where threat is "implicit, arising from earlier incidents"); State v. Johnson, 130 N.H. 578, 582, 547 A.2d 213, 215 (1988) (affirming trial court finding that "'evidence of coercion under some circumstances is the result of a prolonged series of events between two individuals"'). III.

The lack of factual background also precluded using the conviction to show that the first assault constituted a continuing threat as an element of the subsequent assaults. Cf. State v. Martin, 138 N.H. 508, 518, 643 A.2d 946, 952 (1994) (evidence that the defendant abused and killed the victim's pets established "the very threat that coerced the victim to comply with the defendant's demands"); State v. Johnson, 130 N.H. 578, 582-84, 547 A.2d 213, 215-16 (1988) (evidence of other coerced sexual activity between the defendant and the victim admissible to show a prolonged pattern of threats and coercion constituting coercion for charged crime); State v. Kulikowski, 132 N.H. 281, 287, 564 A.2d 439, 443 (1989) ("explicit prior incidents [of assault by the defendant on the victim] gave rise to the threat, an element of the charged offense, at the time of the assaults"). The first conviction and sentence, without underlying facts, did not demonstrate any specific knowledge or intent that would explain the defendant's state of mind in the subsequent assaults.

However, Rule of Evidence 404 (b) and its requisite test are not applicable here because evidence establishing the very threat that coerced the victim to comply with the defendant's demands is not evidence of "other crimes, wrongs, or acts." Cf. State v. Kulikowski, 132 N.H. 281, 287, 564 A.2d 439, 443 (1989). The appropriate test for admissibility in this instance, therefore, is contained in Rule of Evidence 403, which permits the exclusion of relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice."

Other state courts have reached similar conclusions. See Treadaway v. State, 381 S.E.2d 43, 45 (Ga.Ct.App. 1989) (force as element of sodomy need not be actual violence, but can be "overpowering" influence stepfather exerts over his pre-teenage stepdaughter); State v. Kulikowski, 564 A.2d 439, 441-42 (N.H. 1989) (sexual intercourse held to have been performed by use of present threats even though threats complained of had occurred several years earlier, defendant having created environment of fear and control over stepdaughter); State v. Eskridge, 526 N.E.2d 304, 306 (Ohio 1988) (in view of child's obligation of obedience to parent, the degree of force and violence necessary may be less than that required where parties were more nearly equal in age, size and strength). We conclude that the evidence was sufficient for the jury to infer that Speese's earlier use of force or violence on Teresa carried over to the three sexual acts in September 1991 on which counts five through seven are based.