2014-0044, State of New Hampshire v. Colleen Carr

witness tampering conviction on double jeopardy grounds. The de fendant also requested instructions; and (3) denying her motion to dismiss the second criminal solicitation indictment; (2) declining to give the jury two of her argues that the Superior Court (Colburn, J.) erred by: (1) failing to dismiss the counts of felony witness tampering, see RSA 641:5, I (2007). On appeal, she see RSA 629:2 (2007); RSA 638:20, III (2007), IV(a)(1) (Supp. 2014), and two on one count of felony criminal solicitation of accomplice t o insurance fraud, HICKS, J. The defendant, Colleen Carr, appeals her conviction by a jury

the defendant. Keefe & Keefe P.A., of Wilton (William Keefe on the brief and orally), for

attorney general, on the brief and orally), for the State. Joseph A. Foster, attorney general (Susan P. McGinnis, senior assistant

No. 2014 - 044 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, Concor d, 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

threatened it. She threatened it,. . . okay. . . ?” She then said, “I think it’s got something to do with [the tenant]. . . . She defendant responded, “Well, go down and. . . ‘I don’t know anything,’ okay?” come to the station to talk; Kelleher asked, “[W]hat am I supposed to do?” The recorded call, Kelleher told the defendant that the police had requested that he could record te lephone calls between him and the defendant. In the first about the defendant’s plan. On January 17, Kelleher agreed tha t the police Eventually, Kelleher, Fells, and the tenant separately told the police

[t] hat the building would be torched and he would lose everything.” tenant spoke to Fells about the defendant’s plan because she “was afraid . . . scheme.” The defendant told the tenant “to get out.” A few days later, the tenant telephone d the defendant and “told her [she] didn’t want any part of this the tenant that “she didn’t want [her] to tell anybody.” Later that evening, the located in her building “because they all had insurance.” The defendant told her mother’s basement,” and that “she didn’t care” about the businesses defendant in formed the tenant that she was moving her own belongings “[i]nto tenant] wouldn’t have to worry where [she] was going to live after that.” The also told the tenant “that she would help [her] find a place to live so [the keep anything[,] [the defendant] would store it at her mother’s house.” She two weeks.” The defendant assured the tenant that if the tenant “wanted to insurance money.” The defendant offered to pay the tenant $7,000 to “leave for she was broke,” and said that “[s]he wanted to torch the building to get the In mid - January p. 2 2013, the defendant approach ed the tenant, told her “[t]hat The defendant and Kelleher spoke about involving the tenant in the plan.

so obvious.” they should move them out but then “bring some old stuff in so it wouldn’t look told Kelleher that because she di d not want their belongings to be “ruined,” in insurance proceeds by having the building burned down. The defendant Kelleher of her idea to address her situation: she proposed to collect $403,000 whi ch he knew “wasn’t good.” Shortly thereafter, the defendant informed Kelleher thought that doing so would help the defendant’s financial situation, In late p. 2 2012, the defendant and Kelleher discussed selling the building.

daughter lived on the third floor. boyfriend, Conra d Kelleher, lived on the second floor, and a tenant and her Richard Fells occupied the first floor of the building. The defendant and her Milford. Her mother’s real estate business and a tobacco business owned by building at 139 Union Square, in an area known as the “Milford Oval” in The jury could have found the following facts. The defen dant owned a

I. Background Facts

and of one of the witness tampering charges. We affirm. argues that the evidence was insufficient to convict her of criminal solicitation p. 3 3

relevant statute; it need not specify the means by which the cri me was Id. “An indictment generally is sufficient if it recites the language of the the offense and enough facts to notify the defendant of the specific charges.” p. 3 384 (2009). “To be constitutional, the indict ment must contain the elements of prepare for trial and avoid double jeopardy.” State v. Ericson, 159 N.H. 379, describe the offense with sufficient specificity to ensure that the defendant can “Part I, Article 15 of th e State Constitution requires that an indictment

RSA 6 p. 3 38:20, III. We disagree. fraud; and (3) the elements of the crime of accomplice to insurance fraud, see (2007); (2) the method by which the defendant sought to commit insurance allege: (1) the elements of the c rime of insurance fraud, see RSA 638:20, II contends that the indictment is constitutionally inadequate because it fails to that [the defendant] could collect the insurance proceeds.” The defendant time in order for another person to commit . . . arson [on] the building . . . so when she purposely solicited the tenant “to leave her apartment for a period of allege s that the defendant solicited the crime of accomplice to insurance fraud violate s Part I, Article 15 of the New Hampshire Constitution. The indictment The defendant first argues that the criminal solicitation indictment

A. Sufficiency of Criminal Solicitation Indictment

II. Analysis

building for $150, 000. was arrested later that evening. In September 201 p. 3 3, t he defendant sold the refused to allow the tenant’s pregnant daughter to live with her. The defe ndant that she had threatened to burn down the building because the defendant had was “drunk all the time,” took “Klonopin now, too,” had a rent arrearage, and a voicemail message for one of the officers in whic h she said that the tenant Shortly after the last call, the defendant called the police herself and left

She’s always drunk? ’” didn’t you say like I told you, ‘Well, the te nant threatened to burn it down. rumors about the building being burned down. The defendant asked, “Why In the third call, Kelleher told the defendant that the police had heard

tell the police that whatever the tenant told them “was an absolute lie.” everything else and she dri nks a lot.” The defendant reminded Kelleher also to responded, “I’m going to say that the woman is on . . . she takes that stuff and nothing.” At one point, she said, “What did I just tell you to say?” Kelleher tenant had to ld them was “a lie.” She told Kelleher to say t hat he “didn’t hear told Kelleher to tell the police that he knew “nothing” and that whatever the the police that the tenant was “on Klonopin” and was often “drunk.” She also In the second call, initiated by the defendant, she told Kelleher to inform p. 4 4

pleaded, factually identified, and proved all of the elements of insurance fraud attempt “i s by definition a crime not completed,” the State could not have accomplice. Because solicitation is an at tempt to conspire, and because and prove the elements of the crime to which the tenant would hav e been an (referring to an indictment alleging attempt). Nor is the State required to plead crime, here, accomplice to insurance fraud. See Munoz, 157 N.H. at 1 p. 4 47 does not require the State to plead and prove the elements of the solicited Contrary to the defendant’s assertions, the criminal solicitation statute

P.3d at 517. and attempt, it requires no overt act other than the offer itself. Je n sen, 195 conspire.” Id.; see also Je n sen, 195 P.3d at 517. However, u nlike conspiracy request. See i d. at 30. “Thus, solicitation can be viewed as an attempt to crime of solicitation ordinarily implies the solicitant ’ s reject ion of the solicitor ’ s attempt to persuade another to commit a specific offense.” Id. at 29 - 30. The commit a specific completed offense, the actus reus of a solicitation includes an “But, while the actus reus of a conspiracy is an agreement with another to crimina l scheme to another party constitutes a part of the actus reus.” Id. completed crime.” Id. Solicitation is like conspiracy in that “disclosure of the mens rea of solicitation is a specific intent to have someone commit a Robbins, Double Inchoate Crimes, 26 Harv. J. on Legis. 1, 29 (1989). “The commit a crime that the solicitor desires and intends t o have committed.” anticipatory offenses”). Solicitation “is the act of trying to persuade another to (explaining that “the crime of solicitation . . . is the most inchoate of the. . . (2007), : 2; see also State v. Je n sen, 195 P.3d 512, 517 (Wash. 2008) Also, like attempt, s olicitation is an inchoate crime. See RSA 629: 1

toward the commission of the crime”). as he believes them to be, is an act or omission constituting a substantial step be committed, he does or omits to do anything which, under the circumstances person is guilty of an attempt to commit a crime if, with a purpose that a crime 157 N.H. 1 p. 4 43, 147 (2008); see also RSA 629:1, I (2007) (providing that “[a] such conduct”). In this way, it is like the attempt statute. See State v. Munoz, crime,” he or she “commands, solicits or requests” that person “to engage in solicitation” if, “with a purpose that another engage in conduct constituting a solicited crime. See RSA 629:2 (providing that “[a] person is guilty of criminal 2006). The criminal solicitation statute requires the State only to identify the request has been made.” People v. Woodard, 854 N.E.2d 674, 688 (Ill. App. Ct. N.H. 562, 563 (1986). Rather, “the offense of solicitation is complete once the not require that the solicited conduct actually occur.” State v. Kaplan, 128 such other person to engage in such conduct.” RSA 629:2. “The statute does engage in conduct constituting a crime, he commands, solicits or requests “A person is guilty of criminal solicitation if, with a purpose that another

Id. accomplished or other facts that are not essential to the elements of the crime.” p. 5 5

Similarly, she asserts that the trial court failed to instruct the jury that, to did not “break out” the “required elements” of the crime of insurance fraud. accomplice to insurance fraud. For instance, she argues that the trial court solicitation, the jury had to find all of the elements of insurance fraud and instruction stem from her mistaken belief that, to convict her of criminal The defendant’ s arguments regarding the criminal solicitation jury

1. Criminal Solicitation

3 p. 5 5. if the instructions did not fairly cover the issues of law in the case. Id. at 434 adequately and accurately explain each element of the offense and reverse only applicable to the case. Id. We determine whether the jury instructions and explain to the jury, in clear and intelligible language, the rules of law the defendant. Id. Rather, the purpose of the trial court’s charge is to state 434. The trial court is not required to use the specific language requested by would have understood them, and in light o f all the evidence in the case. Id. at interpreting the disputed instructions in their entirety, as a reasonable juror When reviewing jury instructions, we evaluate allegations of error by

case. Id. the court’s ruling was clearly untenable or unreasonable to the prejudice of her trial court’s decision is not sustainabl e, the defendant must demonstrate that these matters for an unsustainable exercise of discretion. Id. To show that the Furgal, 164 N.H. 430, 43 p. 5 5 (2012). We review the trial court’s decisions on of jury instructions, are within the soun d discretion of the trial court. State v. Whether a particula r jury instruction is necessary, and the scope a nd wording the jury her proposed instruction s on criminal solicitation and entrapment. The defendant next asserts that the trial court erred by declining to give

B. Jury Instructions

is constitutionally adequate. See Ericson, 1 p. 5 59 N.H. at 384. offense and enough facts to notify the defendant of the charge, we hold that it “could collect the insurance p roceeds.” Because it contains the elements of the apartment so that “another” could burn down the building and the defendant the tenant to act as an accomplice to her insurance fraud by leaving her reus (soliciting). Moreover, the indictment alleges that the defendant solicited insurance fraud), the requisite mens rea (purposely), and the requisite actus The indictment in this case identified the crime solicited (accomplice to

statute. See Munoz, 1 p. 5 57 N.H. at 147; see also RSA p. 6 629:2. force the State to prove more than is req uired by the criminal solicitation the elements of insurance fraud or of accomplice to insurance fraud would out. State v. Johnson, 144 N.H. 175, 178 (1999). Requiring the State to prove or of accomplice to insurance fraud because those crimes had not been carried 6

consists of an ‘opportunity’ plus something else – typically, excessive pressure off ense.” RSA p. 6 626:5; see Mendola, 160 N.H. at 556. Rather, “[a]n inducement something more than “merely affording a person an opportunity to commit an predisposed to engage in it. Mendola, 160 N.H. at 556. Inducement is the defendant to commit the offense; and (2) the defendant was not to “some evidence” that: (1) law enfo rcement officials induced or encouraged To be entitled to an instruction on this defense, a defendant must point

entrapment. person an opportunity to commit an offense does not constitute otherwise disposed to commit it. However, conduct merely affording a substantial risk that the offense would be committed by a person not methods used to obtain such evidence were such as to create a official, for the purpose of obtaining evidence against him and when the official or by a person acting in coop eration with a law enforcement because he was induced or encouraged to do so by a law enforcement It is an affirmative defense that the actor committed the offense

the burden of proof: Entrapme nt is an affirmative defense, upon which the defendant bears

request.” Id. at 55 p. 6 6 (quotation omitted). to such an instruction, and the trial court may properly deny the party’s to support the theory of the requested jury instruction, the party is not entitled Id. at 555 - 56 (quotation omitted). “Where there is simply no evidentiary basis the existence of a fact, but must be of such qua lity as to induce conviction.” scintilla, evidence cannot be vague, conjectural, or the mere suspicion about minutia or scintill a of evidence.” Id. (quotation omitted). “To be more than a Mendola, 160 N.H. 550, 555 (2010). “‘Some evidence’ means more than a some evidence to support a rational finding in favor of that defense. State v. defendant to be entitled to an instruction on a specific defense, there must be about her entrapment defense to the witness tampering charges. For a The defendant next faults the trial court for failing to instruct the jury

2. Entrapment

solicitation instruction constituted an u nsustainable exercise of discretion. defendant’s arguments fail to demonstrate that the trial court’s criminal elements of insurance fraud or accomplic e to insurance fraud. Accordingly, t he defendant of cr iminal solicitation, the S tate was not required to prove the assisted with that statement.” However, a s we have explained, to convict the prepared and submitted to an insurance company,” and that she “would have an insurance policy,” “that a false or misleading statement would have been convict the defendant, it had to establish that “[the tenant] knew th at there was p. 7 7

witness tampering charge concerned the second telephone call. The State also witness tamperi ng charge concerned the first telephone call, and the second call between the defendant and Kelleher. The State argues that the first The State counters that each indictment concerned a separate telephone

Constitution. I, art. 16. The defendant does not advance an argument under the Federal double jeopardy by imposing sentences for both charges. See N.H. CONST. pt. anything,” the trial court violated her State constitutional guarantee against indictments alleged that she told Kelleher, “Tell them you don’t know (Emphasis added.) See RSA 64 1: 5, I(b). She contends that because both she told him “words to the effect of”: “‘ [T]ell them you don’t know anything. ’” . . . Kelleher to withhold information to the Milford Police Department” when or about to be instituted, . . . purposely attempted to induce or otherwise cause alleged that the defendant “believing that an official investigation was pending (Emphasis added.) See RSA 64 1: 5, I(a). The second witness tampering charge effect of”: “‘ Tell them you don’t know anything, ’” a nd “‘ She threatened it, okay. ’” falsely to the Milford Police Department” when she told Kelleher “words to the . . . purposely attempted to induce or otherwise cause . . . Kelleher to inform “believing that an official investiga tion was pending or about to be instituted, grounds. The first witness tampering charge alleged that the defendant, motion to dismiss the second witness tampering conviction on double jeopardy The defendant next asserts that the trial court erred by denying her

C. Motion to Dismiss Second Witness Tampering Conviction

the charged offenses. See id. the sufficiency of the defendant’s proof that she was not predisposed to commit instruction on entrapment. See id. at 55 p. 7 7. Accordingly, we need not address enforcement officials is fatal to her claim that she was entitled to a jury “some evidence” tha t she was induced to commit the charged offense s by law to commit witness tampering. See id. The defendant’s failure to produce support a rational finding that the defendant was induced by law enforcement evidence, without more, does not constitute “some evidence” that would tampering in which she was not otherwise predisposed to enga ge. Thus, the lies regarding his contact with the police induced her to commit witness recorded calls. However, the defendant has made no showing that Kelleher’s because Kelleher, acting at th e behest of the police, lied to her during the The defendant argues that she was entitled to an entrapment instruction

(quotation omitted). more than a solicitation. It is more even than a successful solicitation.” Id. than a request and an affirmati ve response.” Id. (quotation omitted). “It is (quotation omitted). “An inducement, by its very nature, contemplates more an alternative, non - criminal type of motive.” Mendola, 160 N.H. at 556 by the government upon the defendant or the government’s taking advantage of p. 8 8

that the evidence was insufficient to prove guilt.” Id. (quotation omitted). (quotation omitted). “[T] he defendant. . . bears the burden of demonstrating reasonable infer ences therefrom in the light most favorable to the State.” Id. N.H. 342, 351 (2012) (quotation omitted). We consider “all the evidence and all elements of the crime beyond a reasonable doubt.” State v. Saunders, 164 determine whether any rational trier of fact could have found the essential challenge to the sufficiency of the evidence, we objectively review the r ecord to her of criminal solicitation and witness tampering. “When considering a The defendant next contends that the evidence was insufficient to convict

D. Sufficiency of the Evidence

double jeopardy under the State Constitution was not infringed. See id. punishments for the same offense and, consequently, that h er right against transactions, we conclude that the defendant was not subjected to multiple the same act or transaction”). Because th e charges arose out of separate injuries to the victim’s head and neck does not establish that they arose out of assault in the living room and a later assault in the kitchen “resulted in transaction. See F ischer, 165 N.H. at 715 (concluding that the fact that an conduct during separate telephone calls arose out of the same act or anything about the planned arson, does not establish that the defendant’s conversation, the defendant told Kelleher to tell the police that he did not know knew “nothing” and that he “didn’t hear nothing.” The fact th at, in each witness tampering charge, the defendant told Kelleher to tell the police that he another conversation, which the defendant initiated, the subject of the second did not “know anything” and to tell them tha t the tenant “threatened it.” In witness tampering charge, the defendant told Kelleher to tell the police that he separate telephone conversations. In one conversation, the subject of the first Here, the defend ant was charged with witness tampering during two

offenses are the “same” for right to counsel purposes). (1932); cf. State v. Matey, 153 N.H. 263, 270 - 71 (2006) (deciding whether two (quotation omitted); see also Blockburger v. United States, 2 p. 8 84 U.S. 299, 304 do not arise out of the same act or transaction.” Fischer, 165 N.H. at 715 analysis, two charged offenses cannot be regarded as the same offense i f they 480, 486 (2010) (quotation omitted). “For the purpose of double jeopardy against multiple punishments for the same offense.” State v. Glenn, 160 N.H. prosecutions for the same offense after acquittal or after conviction, and Article 16 of the New Hampshire Constitution protects against “successive which we review de novo. State v. Fischer, 165 N.H. 706, 715 (2013). Part I, The issue of double jeopardy presents a question of constitutional law,

induced Kelleher to “withhold information,” see RSA 64 1: 5, I (b). “inform falsely,” see RSA 64 1: 5, I (a), while the second charge alleged that she tampering. The first charge alleged tha t the defendant induced Kelleher to observes that each charge concerned a different statutory variant of witness p. 9 9

sufficiency of the e vidence of criminal solicitation, is unavailing. Accordingly, this argume nt, like the defendant’s other arguments regarding the could have found the tenant and Kelleher to be credible witnesses. reached the same conclusion.” Id. Here, we cannot say that no rational juror jury and will be upheld on appeal unless no rational trier of fact c ould have testimony.” Id. “Credibility determinations are within the sole province of the reject any portion of a witness’ s testimony and to reso lve any conflicts in See State v. Ho d gdon, 143 N.H. 3 p. 9 99, 404 (1999). “The jury is free to accept or testimony were factors for the jury to consider in assessing their credibility. inconsistent. The tenant ’s memory difficulties and Kelleher’s inconsistent trouble remembering” certa in facts and Kelleher’s testimony was internally convict her of criminal solicitation because, at trial, the tenant “had serious Finally, the defendant contends that the evidence was insufficient to

proceeds that exceeded $1,500. reasonable doubt, that the defend ant acted with a purpose to collect insurance the State, we conclude that a rational juror could have found, beyond a evidence and all reasonable inferences therefrom in the light most favorable to “[s]he wanted to torch the building to get the insurance money.” Viewing the tenant testified that the defendant told her “[t]hat she was broke” and that $403,000 in insurance proceeds by having the building burned down. The evidence that the tenant told others that the defendant’s purpose was to collect total loss, . . . the claim could have been $403,000.” M oreover, there was testified that, had the defendant’s building burned “down to the ground with a $1,500. We disagree. An employee of the defendant’s insurance company finding that her purpose was to collect insurance proceeds that exceeded The defendant also argues that there was no evidence to support a jury

discussed, that was not the State’s burden. the solicited crime, here accomplice to insurance fraud. As previously criminal solicitation in part because the State failed to prove the elements of The defendant argues that the evidence was insufficient to convict her of

policy is more than $1,500”). fraudulent portion of the claim for payment . . . pursuant to an insurance (providing that insurance fraud is a class A felony “if the value of the see also RSA 638:20, III (defining crime of accomplice to insurance fraud), IV(a) act “as an accomplice.” S ee RSA 62 p. 9 9:2 (defining crime of criminal solicitation); conduct constituting the crime of insurance fraud,” intending that the person proceeds greater than $1500,” she “solicit [ed] another person t o engage in prove, beyond a reasonable doubt, that, with the purpose “to collect insurance To co nvict the defendant of felony criminal solicitation, the State had to

1. Criminal Solicitation p. 10 10

DALIANIS, C.J.