State v. Gordon, 13 A.3d 201

Victim discovered a strange car with Louisiana plates in her driveway at 9:00 a.m. on Sept. 6, 2007; Gordon was seen pulling hard on the back porch screen door and followed in his car when shown directions failed.
Victim offered to back her car to help him, he claimed to be looking for Whittemore Lane and then sped off; she reported the incident to police.
Four days later, Nashua officers stopped a car matching the description; Gordon admitted homeless status and later claimed unemployment; he also claimed Louisiana residence history.
Gordon later admitted he had been in New Hampshire for five to six weeks living in his car; victim identified him in a lineup and his car in the driveway.
Gordon was charged with attempted burglary; he moved in limine to exclude evidence of indigence and homelessness; the court denied; he moved to dismiss for insufficient evidence; the court denied.
The NH Supreme Court reversed and remanded, holding the poverty evidence was improperly admitted and not harmless, and addressed sufficiency and preservation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether poverty evidence was admissible under Rule 403.	Gordon argues poverty evidence had probative value and is admissible.	Gordon contends poverty evidence is inherently prejudicial and outweighed by its probative value.	Error to admit; prejudice outweighs probative value.
Whether the error was harmless beyond a reasonable doubt.	State contends alternative strong evidence supported guilt.	The poverty evidence contributed to guilt beyond probative value and was not harmless.	Not harmless beyond a reasonable doubt.
Whether the evidence at trial was sufficient to convict of attempted burglary.	State contends eyewitness and circumstantial evidence established guilt.	Evidence insufficient to prove substantial step and specific intent.	Sufficient evidence to convict.
Whether the sufficiency argument was preserved for review.	State argues preservation adequate despite objections.	Motion to dismiss specifically invoked sufficiency concerns.	Sufficiency preservation properly preserved.

State v. Nightingale, 160 N.H. 569, 8 A.3d 136 (2010) (pretrial ruling review standard under Rule 403; prejudice vs. probative value)
State v. Kim, 153 N.H. 322, 897 A.2d 968 (2006) (descriptive analysis of inherently prejudicial poverty evidence under 404(b))
United States v. Mitchell, 172 F.3d 1104 (9th Cir. 1999) (poverty evidence can be highly prejudicial without probative value)
State v. Costello, 159 N.H. 113, 977 A.2d 454 (2009) (motive evidence; probative value of financial status)
State v. Hanley, 116 N.H. 235, 356 A.2d 687 (1976) (elements of burglary and required substantial step)
State v. Horak, 159 N.H. 576, 986 A.2d 596 (2010) (sufficiency review combining all evidence; standard for review)
State v. Wood, 150 N.H. 233, 836 A.2d 771 (2003) (preservation by specific objection; sufficiency preserved)