2012-038, The State of New Hampshire v. Hector Rodriguez

conspiracy. H owever, post - arrest statements of co - conspirators are not statements when made during the course of and in furtherance of a Rule of Evidence 801(d)(2)(E) permits the introduction of co - conspirators’ LYNN, J. Consistent with the law of most jurisdictions, New Hampshire

brief and orally, for the defendant. Christopher M. Johnson, chief appellate defender, of Concord, on the

assistant attorn ey general, on the brief and orally), for the State. Michael A. Delaney, attorney general (Susan P. McGinnis, senior

No. 2012 - 038 Hillsborough - southern judicial district

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

statements.” (quotation and citation omitted)). during the course and in furtherance of the conspiracy, does not apply to . . . post - arrest p. 2 2011) (“There is no question that the hearsay exception for co - conspirator statements made made in furtherance of the conspiracy.”); Unit ed States v. Meises, 645 F.3d 5, 18 n. 21 (1st Cir. coconspirators were not attempting to conceal the crime or their cohorts, the statements were not when they made their confessions, the objects of the conspiracy were complete, and the See 29A Am. Jur. 2d Evidence § 858, at 149 - 50 (2008) (“[W]here coconspirators were in custody 1

Santiago. That same evening Nicholas Voig ht and Nicole Iannelli were at brother, Anthony Serrano, as well as Junior Vincente and Adam “Bori” On January p. 2 2, 2011, the defendant was at his home in Nashua with his

had past issues with Jesus Stretch Corte[s].” who interviewed the defendant, testified that the defendant told him that “he’s “just talki ng” and “embellish[ing].” Nashua Police Detective Daniel Mederos, to help him.” The YDC employee characterized the defendant’s statements as and that “some people that he was friends with, possibly his brother, was going defendant say that he and Cortes “were going to have some type of retaliation” assaulted the defendant and gave him a black eye. The employee h eard the “did not get along very well” and that an incident occurred when Cortes (YDC) in Manchester. A YDC employee testified that Cortes and the defendant “Stretch” Cortes were incarcerat ed together at the Youth Detention Center properly admitted evidence in standard font. In p. 2 2010, the defendant and Jesus in the Sta te’s case, we recite those statements in italics, while detailing the to underscore the integral role that the improperly admitted statements played The following facts were adduced at trial. In the interests of clarity and

trial on those charges. accomplice and conspiracy first degree assault charges and remand for a new burglary, w e affirm that conviction, but reverse his convictions on the with respect only to the defendant’s conviction for conspiracy t o commit conclude th at the improperly admitted evidence constitutes harmless error assault), while allowing the remaining three convictions to stand. Because w e theory that the defendant acted as a principal in the commission of the conviction and one of the first degree assault convictions (the one based on the acknowledged its error and attempted to remedy it by vac ating the burglary (burglary). Following his conviction on all charges, the trial court (conspiracy); RSA 6 p. 3 31:1 ( p. 2 2007) (first degree assault); RSA 635:1 (2007) assault. See RSA 626:8 (2007) (accomplice liability); RSA 629:3 (2007) accomplice to first degree assault, and conspiracy to commit first degree charges of burglary, conspiracy to commit burglary, first d egree assault, defendant, Hector Rodriguez, before the S uperior C ourt (Colburn, J.) on co - conspirator statements were improperly admitted during the trial of the admissible under this rule. In this case, a substantial number of post - arrest 1 3

he did not sa y where. A ccording to Iannelli, the defendant’s tone was such that long she had been driving. He then asked her to drive him “somewhere,” but she had her driver’s license, whether she was driving her own car, and how Iannelli testified that at the defendant’s house, the defendant asked her if

right here.” take it out, you know, and [wave] it around,” he said, “No, I had it waistband saying that he didn’t take - - and when I said, “Did you here,” he was, in the interview, lifting up his shirt and pointing to his show the motions that he was making. When he says, “I got it right [H]e does say that he shows it. Obviously the transcript doesn’t

others: examination, Gorman clarified Santiago’s account of showing the knife to the probably a . . . four - inch blade,” and showed it to everyone. On cross that he brought a knife, a “mini - S amurai sword, eight inches total in length, with up Cortes and not to “stab him or kill him.” Nevertheless, Santiago told Gorman Detective Gorman testified that Santiago told him that the plan was to beat

residence to assault him.” that “they basically came up and inte nded to go over to Jesus Corte[s ’] that “he was with a group,” that “they plann ed to go and assault Stretch,” and where Stretch lived.” Mederos also testified that the defendant admitted to him because [Voight] knew him from buying weed” and “gave the information about testified that, according to Vincente, “the plan was to go to [Cortes’] house “shorting his bags of marijuana.” Detective Mederos interviewed Vincente. He Gorman that he “had a double beef with Stretch” for a prior assault and for him that he knew where Cortes lived and told the defendant. Voight told Detective Alex Gorman interviewed Voight. He testified that Voight told

leading everybody.” defendant appear ed to her to be “the leader,” “the big man on campus . . . Iannelli heard the defendant and Voight engage in small talk in English. The their shirts . . . [and] going about themselves.” She did not see any weapons. like moving, getting kind of hyperactive and moving around, and like lifting Iannelli generally described the men as “talking, and making weird gestur es, could not understand, and she heard the name “Stretch” mentioned in passing. sweatshirts and baggy pants. They were speaking Spanish, which Iannelli Iannelli had met before. The men were stan ding outside, wearing oversized encountered the defendant, Serrano, Vincente, and Santiago, none of whom According to Iannelli, at the defendant’s house, she and Voight

at around 7 p.m. asked Iannelli to drive h im to the defendant’s house. She agreed and they left Iannelli’s house. Iannelli testified that Voight called the defendant and then p. 4 4

knocked on the door, and an individual opened the door, and [th e defendant] According to Detective Mederos, the defendant told him that “someone

front door” of apartment 206. the fire door, “[y]ou can see the entire . . . hallway outside . . . [and] the entire approximately twenty feet from the door to apartment 206 and, standing be side photographs introduced at trial, Mederos testified that the fire door was apartment 206,” where the defendant believed Stretch lived. Based up on Serrano, Junior Vincente and Bori [Santiago] went to the front door of went there as extra muscle and that he stayed by the fire door as Anthony near the fire door outside the apartment.” The defendant told Mederos “that he the sec ond floor of the apartment building, where [the defendant] remained entrance. The men “put black things over their faces, and they all went up to building, which “was identified as Corte[s ’] residence,” through its front happened next. The defendant, Serrano, Santiago, and Vincente entered the Detective Mederos testified that the defendant de scribed to him what

of her car were rolled up. men were talking, but did not hear what they were saying because the windows did not see them wearing masks or carrying weapons. She observed that the the defendant, Santiago, Serrano, and Vincente went into the building. Iannelli to stay in the car, and she and Voight remained in their respective cars while Serrano, and Vincente got out of the Lincoln. The defendant instructed Iannelli facing the building. The defendant g ot out of Iannelli’s car and Santiago, lot and parked facing away from the building; Iannelli parked next to him, apartment building on Ledge Street in Nashua. Voight pulled into the parking Iannelli testified that she followed the Lincoln to the parking lot of an

confirmed the men brought weapons with them in the Lincoln. made of wood. Gorman, who also interviewed Serrano, testif ied that Serrano Serrano br ought “a miniature baseball bat, almost like a souvenir baseball bat” beat up Stretch and possibly take his . . . drugs.” Santiago told Gorman that Gorman that he did not see any weapons and “knew that they were going to right. And he also gave them an apartment number . . . 206.” Voight told you go in the main door, go up the stairs, take a left and it’s the first door o n your building that V oight was bringing them to . . . [that] Stretch lived.” “He said that with Ser rano, Santiago, and Vincente, he explained “where specifically in the Detective Gorman testified that, according to Voight, once he was in the car

did not tell her where they were going. contained weapons. The defendant instructed Iannelli to follow the Lincoln but have an y weapons in her car and did not look inside the Lincoln to see if it Lincoln that belonged to the defendant’s mother. Iannelli said that she did not Iannelli’s car, while Serrano, Vincente, Santiago, and Voight got into a silver she did not feel she had the choice of refusing him. The defendant got into p. 5 5

description because. . . it was so blurry. There’s not much I now the gentleman kept paci ng. But I cannot give any me with a mask, and I could look there’s a tall gentleman and When I was on the ground there was a gentleman in front of

he could not describe how many assailants he saw: he kept blocking the at tempts. Rousseau’s vision was blurry and “bloody” and was hit, kicked, and punched repeatedly. Someone attempted to stab him, but was first hit on the forehead with a baseball bat and then stumbled back as he Rousseau testified about what happened when he opened the door. He

of face coveri ng.” later.” Santiago said that all of them “were wearing masks . . . or had some sort Serrano went in first, and “then they came back and brought [Santiago] over go inside the apartment. Finally, Santiago told Gorman that Vincente and lookout. At some point, Santiago said that he served as the lookout and did not Gorman that Vincente did not go into the apartment and stood outside as the man, and then Vincente followed them into the apartment. Santiago also told first hit with the bat the man who opened the d oor, then Santiago stabbed the transpired inside the apartment building. Santiago told Gorman that Serrano Detective Gorman testified about Santiago’s differing versions of what

told him that neither he nor the defendant went inside the apartment. examination, however, Mederos testified that, during his interview, Serrano also did not specify where inside the apartment the defendant wen t. On cross - Vincente went into apartment 206 together with himself and Santiago; Serrano Mederos testified tha t Serrano told him that both the defendant an d

apartment 206, said “Let’s go,” and the men fled the building. by Serrano and the defendant. A short while later, Vincente opened the door to bat the man who opened the door, the n Santiago rushed in with a knife, followed who entered the apartment with Santiago and Serrano. Serrano first hit with a Vincente, who “was in the hallway looking out” and that it was the defendant Detective M ederos further testified that Vincente told him that it was he,

dissimilar enough that there wouldn’t be [a mistake].” physical characteristics as Jesus Corte[s],” such that the two men “are Maxene Rousseau, who “[was] clearly not the same build or [ha d] the same According to Mederos, the man who opened the door turned out to have been going on inside” other than “that it was a male that came to the door.” apartment. The defendant “couldn’t see anything from the hallway of what was enter the apartment”; Serrano and Vincente followed Santiago into the defendant saw Santiago “with his right hand stretched out in . . . front of hi m The defendant described Serrano’s bat as “a small, wooden . . . T - ball bat.” The observed [Serrano] strike . . . the individual who answered the door with a bat.” p. 6 6

th at there were three assailants, although he could not describe them. “this chubby guy” any further. Also on cross - examination, Rousseau indicated face when he bent down to ask Rousseau a question; he could not describe described the “chubby guy” as chubby because he was so close to Rousseau’s assailants as tall because he was taller than th e “chubby guy,” and that he On cross - examination, Rousseau clarified that he described one of the

A: He was in . . . the kitchen, but it was like behind the tall guy.

Q: Okay. . . . [W]hat about the guy who was pacing, where was he?

in front of me. . . . I asked him the question. was, there was a gentleman with the mask, that’s why it’s chubby, going on and blurriness. I can tell no description. All I could see because I cannot give no description with everything that was guy – it was another gentleman pacing. I can tell how big it was A: No, the chubby guy looked like it was in front of me, and the tall

Q: And what about the chubby guy?

A: Yes.

Q: Okay. What about the tall guy?

A: Yes.

your apartment? Q: . . . Was the person who was wearing the mask, did he enter

unclear as to how many assailants he saw or what they looked like. “chubby guy,” a masked man, and “another gentleman pacing,” he appeared Although Ro usseau testified on direct examination about a “tall guy,” a

apartment. The assault lasted approximately five minutes. around, talk[ed] to his friend,” swore, and then the men ran out of the apartment. Rousseau said yes, at which point “the chubby guy turn[ed] off a black - and - white mask. The men asked Rousseau whether he lived in the you guys? I do not know you guys.” The “chubby guy” bent down and pulled Rousseau responded that he was not “so and so” and asked, “What did I do to

so?” me for somebody that they know. They said, “Are you so and front of me, because he pretty much, right on my face, ask could see. . . the only way I know, there was a chubby guy in p. 7 7

forensic evidence, such as DNA, from the apartment. test the leggings for DNA. The police did not collect any fingerprints or other description of the weapon that was described . . . by everybody.” Nor did they fingerprints because, according to Gorman, “it generally didn’t match the handle, ax handle in the trunk.” The police did not test the stick for face coverings [used during the attack], as well as a wooden stick or sh ovel leggings that were consistent with some of the descriptions . . . of one of the spoke with Rousseau. A search of the silver Lincoln produced “a pair of black interviewed the defendant, Voight, Serrano, Vincente, and Santiago. They also helped locate Voight. In the course of the ensuing investigation, police spoke with Gorman, identified the defendant from a photo graphic array, and accounts. Her father took her to the Nashua Police Department, where she The next day, Iannelli learned what had happened through news

out and screaming and yelling.” later, she and Voight went back to Iannelli’s house, and Voight was “freaking The men were acti ng “[v]ery nervous and scared.” Approximately five minutes Iannelli clarified that she did not remember who said, “We got the wrong guy.” the left. You went to the right,’ or something like that.” On cross - examination, [Voight] said that, ‘It was the wrong guy. It was the wrong one. I said to go to the defendant “describe[] which apartment building they went to, and then there, engaged in conversation. Iannelli did not see any weapons. She heard defendant got out and told her to get out of the car. The others were already Back at the defendant’s house, Iannelli initially stayed in the c ar, but the

to ask questions and to keep going, and just kept repeating himself.” She “asked him what happened and where [they] were going. He told [her] not nervous and instructed Iannelli “to jus t go straight because it was quicker.” and Iannelli pulled out and left the parking lot. The defendant appeared get in, like come after them.” The defendant kept “saying to go and to leave” around and s aw a tall black male who “jumped on [her] car and was trying to windshield smashed, and then somebody was on top of [her] car.” She turned his way out. Then Iannelli “backed up and felt something, and [her rear] drive, yelling “Go, go, go.” Voight backed out of the parking lot, hitting a car on into the Lincoln where Voight was waiting. The defendant instructed Ian nelli to out of the building. The defendant got into her car whil e the other three got Iannel li testified that f ive minutes after they walked in, the four men ran

white girl with black hair was driving the car. the car real hard . . . kind of smash[ing] the back window.” He saw that a inside the car and, as his “body lay on the trunk and the back window,” he “hit a “car reversed and hit [him].” He heard a male voice say “Go, go, go” from hallway, pulled the fire alarm, walked downst airs and out the front door where After the men left the apartment, Rousseau stood up, walked down the p. 8 8

reject their statements, you can accept the statements as true, or question them or challenge their statements directly. You can did not testify, [the defendant] did not ha ve an opportunity to You should note that because these alleged co - conspirators

testify at this trial. . . . unavailable, and you are not to speculate as to why they did not witnes ses at trial. There can be many reasons why a person is Voight, all of whom are alleged co - conspirators and unavailable Anthony Serrano, Junior Vincente, Adam Santiago and Nicholas You’ve heard testimony relative to statements made by

instruction: Prior to submitt ing the case to the jury, the court gave the following

the defendant renewed his objection and the court again reaffirmed its ruling. Gorman began to testify about Voight’s and Santiago’s post - arrest statements, statements on a question - by - question basis, and the court agreed. Before State asked that the court rule on the admissibility of the co - conspira tors’ statements that are elicited as being in furtherance of the conspiracy.” The detectives and “inquire of other statements that may be inconsistent with those State r esponded that the defendant would be able to cross - examine the because they gave vastly inconsistent accounts of what had transpired. The The defendant argued that he needed to cross - examine the co - conspirators defendant’s arguments under the Confrontation Clause, affirmed the ruling. Hampshire Rule of Evidence p. 8 8 0 1 (d)(2)(E), and, having further researched the in so ruling, she “was focused on the rules of evidence,” specifically N ew reaffirmed its ruling on the defendant’s objections. The trial judge stated that Before defense counsel began cross - examining Mederos, the court

the court adhered to its previous ruling. testify about his interview with Serrano, the defense renewed its objection and what Vincente told him Voight had told Vincente. When Mederos began to “consistent with [its] ruling.” The State proceeded to question Mederos a bout constituted double hearsay. The court agreed, but allowed the State to proceed heard from Voight, the defense objected on the grounds that such statements overruled the objection. When Mederos testified ab out what Vincente said he statements would violate his rights under the Confrontation Clause. The court the evidence the existence of a conspiracy and that admission of these objected, arguing that t he State had failed to establish by a preponderance of from the co - conspirator [Vincente] through Detective Mederos,” the defendant When the State proposed to “elicit statements in furtherance of th[e] conspiracy co ncerning what they were told by Voight, Serrano, Vincente, and Santiago. the admission of Detective Gorman’s and Detective Mederos’ testimony During the trial, t he defen dant repeatedly and unsuccessfully objected to p. 9 9

charged.” State v. Fandozzi, 15 p. 9 9 N.H. 773, 782 (2010) (quotation omitted). insufficient to prove beyond a reasonable doubt that he was guilty of the crime entirety and with all reasonable inferences dra wn in favor of the State, was defendant has the burden of establishing that the evidence, viewed in its standard of review applicable to motions to set aside a verdict, whereby “the U.S. 36 (2004); U.S. CONST. amend. VI. The court proceeded to apply the because the statements were testimonial. See Crawford v. Washington, 541 furtherance of the conspiracy, and contrary to the Confrontation Clause Evidence 801 because the y were not made during the pendency of and in the co - conspirators ’ statements was contrary to New Hampshire Rule of based up on accomplice liability. The court determined that the admission of burglary, conspiracy to commit first degree assault, and first degree assault liability theory, an d upholding the convictions for conspiracy to commit convictions for bur glary and first degree assault based up on the principal The court subsequently issued a written order setting aside the

the other charges. support the conviction, which is why I’m not going to grant it on all harmless it is. And I think there was plenty of other testim ony to have been error. And then the analysis just becomes how case certainly met their burden of establishing that there might .. . and after the fact, negating of a charge, . . . the Defense in this [U]ltimately, particularly. . . in the context of a motion to vacate

convictions for the three remaining charges, the court ruled: the defendant’s participation as a principal in that offense. As to the convictions for bur glary and for th e first degree assault charge predicated on found that the remaining admissible evidence was not sufficient to support the enough . . . evidence on the balance to sustain the convictions.” The court given this err or, “the question becomes, is it harmless error because is there statements . . . should not have been allowed . . . in the way they came in,” and At a hearing on the motion, the court ruled that “the co - conspirators’ were made neither during the pendency of nor in furtherance of the conspiracy. conspirators’ post - arrest statements were improperly admitted beca use they The defendant moved to set aside the verdicts, arguing that the co -

the defendant of all five charges. instructed the jurors to rely up on their collective memories. The jury convicted Vincente.” The court responded that no transcript was available a nd Gorman testimony regarding his interview with Anthony Serrano and Junior During deliberations, the jury asked to “hear/see detective Mederos or detective

deserve. In short, you should give them as much weight as you think they you can accept some and reject some of these statements as true. p. 10 10

jeopardy analysis under the New Hampshire Constitution). v. Horak, 159 N.H. 576, 582 - 83 (20 p. 10 10) (adopting Lock hart’s holding for purposes of double sufficient to sustain a guilty verdict, the Double Jeopardy Clause does not preclude retrial”); State the State and admitted by the trial court – whether erroneously or not – would have been But see Lockhart v. Nelson, 488 U.S. 33, 34 (1988) (holding that “where the evidenc e offered by 2

admission of Detective Gorman’s and Detective Mederos’ testimony concerning trial motion. Instead, we proceed directly to the question of whether the his challenge to the standard of review that the trial court applied to his post - Accordingly, we do not need to address whether the defendant preserved

of the statements require s reversal of hi s convictions. that the defendant failed to preserve his argument that the improper admission liability charges – to remedy its error. Furthermore, t he State does not argue 2 taken by the court – dismis sal of the burglary and first degree assault - principal court’s ruling that it erred in the admission of these statements, nor the action reversal of all of his convictions. The State has not cross - appealed the trial post - arrest co - conspirator statements and argues that this error requires the The defendant also appeals the trial court’s improper admission of the

verdicts, s ee State v. Ericson, 159 N.H. 379, 386 (2009); Super. Ct. R. 59 - A. contemporaneous objection during the hearing on the motion to set aside the Corr ections v. Butland, 147 N.H. 676 (2002), or make a specific apply the correct legal standard, see New H ampshire Department of argument because he did not file a motion to reconsider asking the court to p. 10 109 (2007). The State responds that t he defendant failed to preserve th is admitted evidence did not affect the verdict. See State v. Beede, 156 N.H. 102, the State to demonstrate, beyond a reasonable doubt, that the erroneously court should have applied the harmless error test, which puts the burden on doubt that the defendant was guilty. See id. T he defendant argues that the drawn in favor of the State, was insufficient to prove beyond a reasonable the entirety of the properly admitted evidence, with all reasonable inferences to set aside a verdict; it placed the burden on the defendant to est ablish that trial court reviewed the convictions under the standard applicable to motions standard of review when ruling on his motion to set aside the verdicts. The On appeal, the defendant argues that t he trial court applied the wrong

others to commit first degree assault.” This appeal followed. and (3) “there is sufficient evidence that the defendant acted in concert with the guilty verdict as to the charge of conspiracy to commit first degree assault”; inferences drawn in favor of the State, [the evidence] is sufficient to sustain a defendant guilty of conspiracy to commit burglary”; (2) “with all reasonable evidence, absent the co - conspirator statements, is sufficient to find the Applying this standard, the court concluded that: (1) “the balance o f the p. 11 11

such crime, and an overt act [wa]s committe d by one of the conspirators in . . . agree[d] with one or more persons to commit or cause the commission of the defendant, “with a purpose that a crime defined by statute be committed, assault, a conviction for criminal conspiracy requires the State to prove that As to the defendant’s conviction for conspiracy to commit first degree

bodily injury to another by means of a deadly weapon.” RSA 631:1, I (b). have facilitated the commission of first degree assault by “knowingly caus [ing] planning or committing it.” RSA 626:8, III (a). Here, the defendant is alleg ed to committing it, or aids or agrees or attempts to aid such other person in facilitating the commission of the offense, he solicits such other person in A person acts a s an accomplice if, “[w] ith the purpose of promoting or

deadly weapons as then and there used . . . . kicking him while he was on the ground; said bat and knife being M.R. in the head with a bat, stabbing him twice with a knife and Adam Santiago, knowingly caused bodily injury to M.R. by striking while acting in concert with Anthony Serrano, Junior Vincente and

defendant, T he indictment for accomplice to first degree assault alleges that the

was harmless beyond a reasonable doubt. arrest statements through the testimony of Detectives Mederos and Gorman erroneous admission of Voight’s, Vincente’s, Serrano’s, and Santiago’s post conspiracy to commit first degree assault, we cannot conclude that the As to the convic tions for acc omplice to first degree assault and

Beede, 156 N.H. at 109 (citations omitted).

character of the inadmissible evidence itself. consider the alternative evidence presented at trial as well as the State’ s evidence of guilt. In making this determination, we cumulative or inconsequential in relati on to the strength of the quantity or weight, and if the contested evidence is merely evidence of the defendant’ s guilt is of an overwhelming nature, error may be harmless beyond a reasonable doubt if the altern ative presented at trial and the character of the contested evidence. An met its burden involves consideration of the alternative evidence that an error is harmless. The evaluation of whether the State has it did not affe ct the verdict. The State bears the burden of proving An error is harmless if we can say beyond a reasonable doubt that

harmless error. what they were told by Voight, Serrano, Vincente, and Santiago amounted to p. 12 12

he had at least a tacit understanding that deadly weapons would be used in conclude that the properly - admitted evidence overwhelmingly established that degree assault and accomplice to first degree assault, we must be able to Thus, to affirm the defendant’s conviction s for conspiracy to commit first

15 A C.J.S. Conspiracy, supra § p. 12 122, at 449 - 50 (emphasis added).

the common design and purpose. participation in the conspiracy with a view to the furtherance of or awareness is insufficient. There must be some knowing purposes, or mere passive cognizance of the crime. Mere presence knowledge of the acts of the other parties, acquiescence in their A conspiracy is not established by a showing of mere

charged as the basis of the conspiracy. that the goal of the conspiracy was to commit the specific crime that certain activities be done . . . without [the defendant] knowing An agreement is insufficient to establish conspiracy with others

the crime that is the object of the conspiracy.” (quotation omitted)). plainly e rrs in a conspiracy case if it fails to instruct the jury on an element of States v. McCaleb, 552 F.3d 1053, 10 58 (9th Cir. 2009) (“[A] district court conspired to commit. . ..” 15 A C.J.S. Conspiracy § 223, at 511 (20 p. 12 12); United of the essential elements of the crime that a defendant is alleged to have the reason that “[a] jury in a conspiracy prosecution must be instructed on all elements of the conspired offense.” (quotation and brackets omitted)). This is offense requires proof that the conspirators intended to bring about the 699, 707 (Conn. App. Ct. 2011) (“[P] roof of a conspiracy to commit a specific about each element of the underlying offense. See State v. Douglas, 11 A.3d he agreed – even tacitly, State v. Gilbert, 115 N.H. 665, 667 (1975) – to bring T o find a defendant guilty of criminal conspiracy, the jury must find that

weapon. See RSA 631:1, I (b). first degree assault, an element of which, as charged, is the use of a deadly The underlying offense which the defendant allegedly conspired to commit was

to be use d . . . . and knife being deadly weapons in the manner they were intended bodily injury to him through the use of a bat and a knife, said bat Adam Santiago to go to the residence of Jesus Cortes . . . to cause agree with Nichola s Voight, Junior Vincente, Anthony Serrano and w ith the purpose to commit the crime of First Degree Assault, did

commit first degree assault alleges that the defendant, furtherance of the conspiracy.” R SA 629:3, I. The indictment for conspiracy to p. 13 13

remained by the fire door and acted as a lookout. evidence of the defendant’s locati on within the building: his statement to Mederos that he admission of these statements was harmless error, we must therefore consider the only alternative entirely from post - arrest co - conspira tor statements. To determine whether the erroneous inside the apartment (and therefore rendering him part of the physical attack on Rousseau) came The trial court found – and the State does not contest – that the evidence placing the defendant 3

appearan ce of the bat are far from obvious. Although Mederos testified that commission of the offense is not overwhelming. As with the knife, the size and properly - admitted evidence that he knew a bat would be used in the defendant saw Serrano with the bat before Rousseau opened the door, the As to the bat, although a jury could re asonably have found that the

apartment. merely that he saw Santiago, with his right hand extended, enter the and therefore the obviousness of its visibility. The defendant told Mederos 3 eight inches long, there was no other evidence concerning the size of the kn ife – and absent Santiago’s improperly admitted description of the knife as being the fire door was approximately twenty feet from the door to apartment 206, chain is not compelling in light of the record as a who le. Mederos testified that that he assented to the use of this weapon, the strength of this inf erential defendant’s objection or attempted withdrawal from the venture at that point – door, and therefore concluded – based upon the absence of evidence of the must have seen Santiago bare the knife before one of the men knocked on the Even though a jury could reasonably have found that the defendant

she did not see any weapons when the men went into the building. point on his way into and/or once in side the building; yet I annelli testified that other than the inference that he must have seen Serrano hold ing it at some There is no evidence that the defendant knew Serrano was armed with a bat, evidence that the defendant knew that one of the co - conspirators was armed. statement that he showed the knife to everyone constituted the only direct shirts, but she did not see any weapons. Santiago’s improperly - admitted would be used in the attack. Iannelli testified that she saw the men lift their acknowledged the planned assault on Cortes but d id not say that weapons We are not con vinced. In his interview with Mederos, the defendant

the door. oth ers had their weapons out and ready before Rousseau answered planned to enter the apartment during the attack, and that the had planned to attack Cortes with deadly weapons, that they had entry into the apartment, common sense dictates that the group Given the swiftness of the attack with deadly weapons and the

that this standard is met, arguing: the commission of the assault. See Beede, 156 N.H. at 109. The State asserts p. 14 14

and they basically came up and intended to go over to Jesus Corte[s ’] residence admitted to him that, on the night of January 2, 2011, “he was with a group as Corte[s’] residence.” M ost importantly, Mederos testified that the defendant defendant said he entered the apartment building because “[i]t was identif ied and instructed her to follow Voight and the others. According to Mederos, the the group. She further testified that the defendant persuaded her to drive him mentioned the name “Stretch” and the defendant appear ed to be the leader of against Cortes. Iannelli testified that, on the night of the assault, the men he would enlist his friends, and perhaps his brother, to help him retaliate overwhelming. We disagree. A YDC employee testified that the defendant said enter the apartment with the purpose to commit a crime inside is not The defendant argues that the admissible evidence o f an agreement to

also RSA 629:3, I. occupied section thereof, with purpose to c ommit a crime therein . . . .” See burglary if he enters a building or occupied structure, or separately secured or statements was harmless error. Under RSA 635:1, I, “A person is guilty of burglary, we find that the admission of the post - arrest co - conspirator Finally, addressing the defendant’s conviction for conspiracy to co mmit

N.H. 418, 423 (1991); State v. Leuthner, 124 N.H. 638, 642 (1984). harmless, we reverse these convictions and remand. See State v. Reid, 13 4 State ’ s evidence of guilt.” Id. Having determined that the error was not [not] merely cumulative or inconsequential in relation to the strength of the overwhelming nature, quantity or weight, and . . . the contested evidence is a ssault and conspiracy to commit first degree assault “is [not] of an t he admissible evidence of the defendant’s guilt of accomplice to first degree defendant may have been the leader of the criminal venture, w e conclude that In sum, even taking account of the evidence suggesting that the

without such evidence. used with the defendant’s knowledge and consent was far strong er than on Rousseau – a scenario under which the inference that deadly weapons were placed the defendant inside the apartment participating in the physical attack Moreover, the improperly admi tted statements of the co - conspirators

could conceal either a knife or a small bat. wearing oversized sweatshirts and baggy pants, clothing under which one did not test it for fingerprints. Additionally, Iannelli testified that the men were dissimilar to “the weapon that was described . . . by everybo dy” that the police described as “a wooden stick or shovel handle, ax handle,” which was so to hit Rousseau. The police ultimately retrieved from the Lincoln what Gorman defendant acknowledged seeing Serr ano with the bat before he actually used it a small wooden . . . T - ball bat,” the detective did not indicate that the the defendant described “the bat that his brother Anthony Serrano had . . . as p. 15 15

DALIANIS, C.J.