2016-0118, The State of New Hampshire v. Felix Ruiz

evidence. We affirm. (1966); and (2) denied his motion to dismiss based upon insufficiency of the including his post - Miranda confession, see Miranda v. Arizona, 384 U.S. 436 (Smukler, J.) erred when it: (1) denied his motion to suppress ce rtain evidence, Riley.” See RSA 637:7 (2016). On appeal, he argues that the Superior Court passport belonging to an African - Amer ican woman named “Cecilia Franci s jury of misdemeanor recei pt of stolen property; namely, a United States DALIANIS, C. J. The defendant, Feli x Ruiz, appeals his conviction by a

brief and orally, for the defendant. Stephanie Hausman, deputy chief appellate d efender, of Concord, on the

assistant attorney general, on the brief and orally), for the State. Ann M. Rice, deputy attorney general (Susan P. McGinnis, senior

No. 2016 - 0118 Hillsborough - northern judicial district

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

obtaining a driver’s license. believed that [the defendant] was simply there . . . to assist . . . Guzman” in Dupont “thought it was an odd question” because “up to [that] point, [he] had “out of the blue,” whether “there [was] anything wrong with the documents.” Once Dupont identified himself to the defendant, the defendant asked,

door open. Periodically, Dupont left the room to consult with O’Leary. contained a desk and a chair. Dupont sat beh ind the desk, leaving the room’s spoke with the defendant in a room that was 10 feet by 10 feet square and to do so. The two men were separated. O’Leary spoke with Guzman. Dupont defendant were a sked if they would speak to the troopers, and both men agreed the submitted documents appeared to be fraudulent. Guzman and the Troopers Dupont and O’Leary were dispatched to the Manchester DMV because After Guzman’s driver’s license application had been submitted, State

identities.” “whole process of obtaining documents and assisting” others in obtai ning “false and had utilized it . . . at the DMV.” According to the defendant, he is part of a Rivera . . . was not aware that [the defendant] had collected his information tele phone number. The defendant said that he knew that “the real Angel “landlord” and gave his own cellular tele phone number as the landlord’s respec t to the lease agreement, the defendant signe d it on behalf of the and (3) a lease agreement between “Angel Berrios Rivera” and a landlord. With “Angel Berrios Rivera” name; ( p. 2 2) a birth certificate for “Angel Berrios Rivera”; submitted with Guzman’s application were: (1) a social security card in the Berrios Rivera” name for Guzman. Among the documents that t he defendant Manchester DMV and filled out the driver’s license application in the “Angel Guzman in exchange for money. The defendant then drove Guzman to the identity,” and provided the information he collected about that identity to performed what he called a “background” on “the Angel Berrios Rivera Before accompanying Guzman to the Manchester DMV, the defendant

not, in fact, “Angel Berrios Rivera.” Berrios Rivera.” Th e defendant knew Guzman and was aware that Guzman is Guzman could obtain a New Hampshire driver’s license under the name “Angel the Manchester office of the State Division of Motor Vehicles (DMV) so that In May p. 2 2015, the defendant accompanied Juan Manuel Soto Guzman to

adduced at trial that support the jury’s verdict. See id. at 711 - 1 p. 2 2. purpose of determining the sufficiency of the evidence, we also consider facts suppression hearing. State v. Morrill, 169 N.H. 709, 711 (2017). For the We accept the trial court’ s findings where supported by the record of the

I. Facts p. 3 3

process of obtaining documents and assisting” individuals to procure “false identity,” and that he and others from Massachusetts were part of a “whole “Angel Berrios Rivera” identity in order to help Guzman obtain “another in fact, “Angel,” that he had provided Guzman with documents rel ated to the Upon further questioning, the defendant admitted that Guzman was not,

the front and back of the statement. statement that he had, indeed, signed the lease. The defendant signed both just confessed to signing the lease, the defendant wrote on the back of the number at “Angel’s” request. When Dupont pointed out that the defendant had but admitted that he gave his cellular telephone number as the landlord’s with the driver’s license application. He de nied signing the lease agreement, him $25 for translation services and $25 for gas in exchange for assisting him in which he claimed that Guzman, to whom he referred as “Angel,” had paid waive his rights and initialed and signed the form. He then wrote a statement understood his rights and would agree to waive them. The defendant agreed to each right to the defendant, after which he asked the defendant whether he advised of his Miranda rights. See Miranda, p. 3 384 U.S. at 4 79. Dupont read interview began, the police arrested the defendant for conspiracy. He was the n At that time, which was approximately two and one - half hours after the

Guzman. with the messages, the defendant admitted to signing the lease agreement for and to agree to a $ p. 3 3 5 0 fee for the defendant’s s ervices. After he was confronted messages that he had exchanged with the defendant to arrange their meeting Before leaving the DMV, Guzman voluntarily showed O’ Leary text

Guzman was then taken into custody. agreed. When Guzman was fingerprinted, his true identity was revealed. the defendant if he would be willing to be fingerprinted, and the defendant When an ICE agent arrived at the DMV to fingerprint Guzman, Dupont asked The police conta cted Immigration and Customs Enforcement (ICE).

with the driver’s license application. Dupont that he had not given the other man any documents to be submitted DMV, and that the defendant was not being paid for his services. He also told listed on t he driver’s license application and taken him to the Manchester Park, Massachusetts, had picked up the other man at the Manchester address The defendant told Dupont that he had traveled from his home in Hyde

weeks. man’s father. Finally, he conceded that he had known the other man for two DMV only to act as a translator. Eventually, he admitted to knowing the other defendant claimed th at he did not know the other man and that he was at the he was there, and how he knew the other man (Guzman). Initially, the Dupont began by inquiring, generally, about who the defendant w as, why p. 4 4

him that if he found anything he wanted, he could keep it,” so “when he came house because she was deceased, and the [landlord] that ha d hired him told in his vehicle. The defendant told Dupont that “he had been cleaning [Riley’s] that he did, and the two troopers questioned him about the documents found him if he recalled his rights and that he had waived them. The defendant said Dupont then showed the defendant the Miranda form again and asked

other items, the passport at issue in this case. search of the vehicle, during which he found a black bag containing, among a handwritten consent form that Dupont drafted. Dupont conducted a full would consent to a search of his vehicle. The defendant readily agreed, signing the defendant about what he had observed, Dupont asked the defendant if he Thereafter, w ithout showing the defendant the documents or informing

purse, which he hid, as the defendant had requested. them, Dupont seized them. Upon exiting the vehi cle, Dupont saw a small license and fearing that the defendant’s girlfriend would destroy or remove documents to be contraband related to Guzman’s attempt to obtain a driver’s search of a social sec urity number for “Angel Berrios Rivera.” Believing the Berrios Rivera,” and the number “25”; and (3) a document detailing an on - line envelope on which were written the word “Junior,” the signature of “Angel that had been submitted with Guzman’s driver’s license application; (2) a white seats: (1) a two - part lease agreement that appeared to be similar to the for m He observed the following items on the floor between the driver and passenger compartment, and, thus, entered the vehicle to see if it was located elsewhere. Dupont did not see the purse on the driver’s si de of the passenger

allow Dupont to hide the purse and gave him the keys to his vehicle. leaving his girlfriend’s purse visible in his vehicle. The defendant agreed to Before being escorted to jail, the defendant expressed concern about

and allow his girlfriend to meet him there. after a few hours of waiting, the police decided to transport the defendant to jail come to the DMV with the money. However, the girlfriend never arrived and, could bring it. The troopers allowed him to text his girlfriend, who agreed to charge. The defendant had no cash available, but claimed that his girlfriend provided that he produce the minimum amount of cash bail for a misdemeanor with and “polite” to the troopers. As a result, Dupont offered to release him During the entire interview, t he defendant was “extremely cooperative”

and the Social S ecurity number” associated with that identity. defendant looked for names “to try and consolidate the name and date of birth part of the “background” that he did on the “Angel Berrios Rivera” identity, the given to someone else who would generate the false identity documents. As “backgrounds” on individuals and that the information he obtained was then identities.” The def endant told Dupont that he was paid to perform p. 5 5

lawful, the defendant’s subsequent consent to search, the additional documents; and (3) because Dupont’s initial seizure of the documents was inadvertently observed the documents; (2) Dupont lawfully seized the court determined that: (1) Dupont was lawfully in the veh icle when he With respect to the documents found in the defendant’s vehicle, the trial

of the defendant’s post - Miranda statements. con fession was voluntarily given. Accordingly, the court did not suppress any considering the totality of the circumstances, the defendant’s post - Miranda rights was knowing, intelligent, and voluntary. The court also determined that, of his Miranda rights, the court found that the defendant’s waiver of those With respect to the statements the defendant made after he was advised

been warned of his Miranda rights. admission to signing the lease agreement because he made it before having custodial interrogation. Thus, the court suppressed the defendant’s initial defendant. At th at point, the trial court found, the inte rview constituted Guzman’s arrest and allowed O’Leary to join Dupont in questioning the “fundamentally shifted the nature of the interview” because it resulted in The court determined that the fingerprinting of the defendant

of the interview (two and one - half hours) was not excessive. the interview was polite throughout. Additionally, the duration of th at portion drew his weapon or physically restrained the defendant. Further, the tone of exit. Moreover, the court found that, although Dupo nt was armed, he never door to the interview room was left open and that Dupont did not block the had not been subject to custodial interrogation. The court observed that the before being fingerprinted w ere admissible because, before then, the defendant of his Miranda rights, the trial court determined that the statement s he made With respect to the statements the defendant made before being advised

denied his motion. violation of his Miranda rights. The trial court partially granted and partially documents found in his vehicle on the ground that they were obtained in Before trial, the defendant moved to suppress his statements and the

A. Relevant Procedural Facts

II. Motion to Suppress

The defendant gave no reason as to why he had that ca rd in his possession. found inside the defendant’s wallet a medical card in the name of “Juan Pena.” In a search of the defendant’s person incident to his arrest, Dupont

Dupont why he retained the passport. across the passport,. . . he just kept it.” The defendant did no t explain to p. 6 6

See Fleetwood, 149 N.H. at 40 p. 6 6. separ ately address the validity of the defendant’ s waiver of his Miranda rights. finding that [his] Miranda waiver was voluntary.” Consequently, we will not merely asserts, without authority or further argument, that “[t]he court erred in for judicial review. See State v. Blackmer, 149 N.H. 47, 49 (2003). Rather, he waiver, as the State suggests, he does not develop that argument su fficiently Although the defendant purports to challenge the validity of his Miranda

against him. Id. at 405 - 0 p. 6 6. No single factor is dispositive. See id. at 406. whether the defendant was advised that his prior admission could be used advised that his prior admission could not be used against him; and (5) police influence exerted over the defendant; (4) w hether the defendant was with fr iends or family members during that period of time; (3) the degree of confession and the subsequent statements; (2) the defendant’s contacts, if any, Miranda violation” was dissipated: (1) the time lapse between the initial we consider the following factors to determine whether the “lesser taint of a pre ceded by an earlier voluntary confession that violated his Miranda rights, When, as in this case, the defendant’s post - Miranda confession is

(quotation omitted). the evidence, as viewed in the light most favorable to the State.” Id. at 402 decision will not be overturned unless it is contrary to the manifest weight of confession is voluntary is initially a question of fact for the trial court, whose coercion.” Fleetwood, 149 N.H. at 402 - 03 (quotation omitted). “Whether a implied promises of any sort, or by the exertion of any improper influence or unconstrained choice and not be extracted by threats, violence, direct or voluntary, a confession must be the product of an essentially free and Fleetwood, 149 N.H. 39 p. 6 6, 402 (2003); N.H. CONST. pt. I, art. 15. “To be reasonable doubt, that a defendant’s confession is voluntary. See State v. 33 (1983). Our State Constitution requires the State to prove, beyond a rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231 - We first address the defendant’s claim under the State Con stitution and

the court’s legal conclusions de novo. Morrill, 1 p. 6 69 N.H. at 715. unless they lack support in the record or are clearly erroneous, and we review order on a motion to supp ress, we accept the trial court’s factual findings his post - Miranda confession was voluntary. When reviewing a trial court’s The defendant argues that the trial court erred when it de termined that

B. The Defendant’s Appellate Argument s

defendant’s vehicle. findings, the court declined to suppress the evidence obtained from the defendant’s consent to search his vehicle was voluntary. Based upon those constitute the “fruit of the poisonous tree.” The court also found that the documents retrieved from his veh icle, and his subsequent statements did not p. 7 7

entitled to Miranda warnings.” Id. Rather, as in Fleetwood, d uring the required warnings,” after the defendant was “unquestionably in custody and Here, there is no evidence of “a police decision to delay giving the

Id. (citations omitted).

statement should ordinarily be inadmissible. pressures of custodial interrogation such that the post - Miranda strongly suggests that the police are exploiting the inherent immediately by the warnings and another incriminating statement, delay giving the required warnings and elicit a sta tement followed custody and entitled to Miranda warnings, a police decision to [I]f a defendant has been arrested and is unquestionably in

at 40 p. 7 7. However, as we have explained: confessions is not required for the subsequ ent confession to be voluntary.” Id. circumstances of this case. “[A] time lapse between the unwarned and warned confession, we do not consider this fact to be dispositive under the between the defendant’s unwarned confession and his post - Miranda Although, as the trial court found, “there was a minimal time lapse”

defendant to contact his girlfriend and to wait several hours for her to arrive. friends. Indeed, when the subject of bail was broached, the police allowed the requested, and the police never denied him, cont act with his family and restrained the defendant. Further, before confessing, the defendant never Although Dupont was armed, he never drew his weapon or physically intervie w” and “t he defendant's calm tone of voice” (quotation omitted)). confession to be voluntary based, in part, upon the “cordial tone of the Fleetwood, 149 N.H. at 406 (noting that the trial court found the defendant’s between the police and the defendant was, at all times, polite and relaxed. See 128 N.H. 628, 636 (1986). Rather, according to the trial court, the interaction any kind and the absence of promises or undue influence”); State v. Dellorfano, voluntary, in part, because of “the absence of threats, violence or coercion of 406 (observing that the trial court found the defendant’ s confession to be displays of force in an attempt to induce the defendant to confess. See id. at Nor was there evidence that the police made any promises, threats, or

to speak.” with [him],” and he “indicated his understan ding of the rights and willingness was arrested for conspiracy, the police “immediately reviewed Miranda rights See id. at 40 p. 7 7. As the defendant acknowledges in his appellate brief, once he delay between the defen dant’s arrest and the giving of the required warnings. against the manifest weight of the evidence. See id. at 402. Here, t here was no the trial court’s finding that the post - Miranda confession was voluntary is not Miranda confession in the light most favorable to the State, we conclude that Viewing all of the circumstances surrounding the defendant’s post - p. 8 8

controls under the Federal Constitution. See Panetti v. Quarterman, 551 U.S. see Seibert, 542 U.S. at 622 (Kennedy, J., concurring). His narrower test Miranda warn ing.” Dixon, 565 U.S. at 30 - 31 (quotation and ellipsis omitted); interrogation technique was used in a calculated way to undermine the narrower test applicable only in the infrequent case in which the two - step J ustice Kennedy “concurred in the judgment, noting he would apply a

object”). warnings delivered midstream could be effective enough to accomplish their opinion) (detailing a “series of relevant facts that bear on whether Miranda (quotation and brackets omitted); see Seibert, 542 U.S. at 613 - 15 (plurality believing once the police began to lead him over the same ground a gain.” Id. hardly think he had a genuine right to remain silent, let alone persist in so aftermath of interrogation and just after making a confession, a suspect would “A plurality of the Court reasoned that u pon hearing warnings only in the

U.S. at 30. against her even though it was preceded by a Miranda warn ing.” Dixon, 565 Court hel d that Seibert’s s econd confession was inadmissible as evidence (per curiam); see Seibert, 542 U.S. at 604 - 06, 616 (plurality opinion). “The her to repeat her prior confession.” Bobby v. Dixon, 565 U.S. 23, 30 (2011) then, after a 15 - to 20 - minute break, gave Seibert Miranda warnings and led detective exhaustively questioned Seibert until she confessed to murder and employed a two - step strategy to reduce the effect of Miranda warnings: A opinion in Missouri v. Seibert, 542 U.S. 600 (2004). “In Seibert, police In arguing for a contrary result, the defendant relies upon the plurality

the manifest weight of the evidence. See id. at 402. court’s finding that the post - Miranda confession was voluntary is not against viewed in the light most favorable to the State, we conclude that the trial interrogation and custody.” Id. Considering the relevant circumstances, require them to make legal determinations regarding whether there had been determine the admissibili ty of an unwarned confession.” Id. “This would him in court. See id. at 406. “[I]t i s impractical to require the police to advise the defendant that his unwarned confession could not be used against We also do not consider dispositive the fact that the police failed to

rights. he was arrested, and, at that time, he was immediately advised of his Miranda was not accusatory. The defendant’s custody status did not become clear until length of the interview was not excessive. The questioning of the defendant armed, never drew his weapon or physically restrained the defendant. The the door open. No office r blocked the exit from the room. The officer, while had been subject to investigatory detention. He was interviewed in a room with status was unclear. See id. He had not been arrested. See id. At most, he interview that preceded the defendant’s unwarned confession, his custody p. 9 9

subsequent search.” Barkus, 152 N.H. at 707. will on the defendant’ s part intervened between the primary illegality and the at 176. “Essential to our reasoning in Gravel was the fact that no ac t of free the reby was inadmissible at trial.” Barkus, 152 N.H. at 707; Gravel, 135 N.H. Miranda violation, the subsequent search was illegal and all evidence seized cocaine, we concluded that because the search warrant was tainted by the N.H. at 174 - 75. “Reversing the defendant’ s conviction for possession of cocaine and re lated paraphernalia.” Barkus, 152 N.H. at 706; see Gravel, 135 used that information to procure a search warrant that ultimately yielded elicited information from a defendant in violation of his Miranda rights, then 706 (2005); see State v. Gravel, 135 N.H. 172, 180 - 84 (1 p. 9 991). “In Gravel, police a Miranda viola tion are inadmissible at trial.” State v. Barkus, 152 N.H. 701, Miranda context, “ho lding that certain physical evidentiary fruits derived from specifically interpreted the “fruit of the poisonous tree” doctrine to apply in the This court, construing Part I, Article 15 of the State Constitution, has

fruit of that poisonous tree. We disagree. [his] unwarned statements,” and, thus, sh ould have been suppressed as the The defendant next asserts that “all of the State’s evidence flowed from

under the Federal Constitution as we do under the State Constitution. than d o es the Federal Constitution). Accordingly, we reach the same result provides greater protection to a criminal defendant with respect to confessions Aubuchont, 141 N.H. 206, 208 (1 p. 9 996) (observing that the State Constitution than does the State Constitution under these circumstances. See State v. confession. The Federal Constitution offers the defendant no greater protection hold that the trial cour t did not err when it denied his motion to suppress that confession was voluntary is not against the manifest weight of the evidence, we Because the trial court’s finding that the defendant’s post - Miranda

exist here. because, even if such circumstances might exist in another case, they do not greater protection to criminal defendants than Justice Kennedy’s narrower test We need not decide whether t he State Constitution requires that we provide evidence “of any pre - planned evasion of Miranda.” Jackson, 608 F.3d at 104. unwarned confession, the police had not decided to arrest him. There is no (quotation omitted). As the trial court found, at the time of the defendant’s “deliberate question - first, warn - later strategy.” Dixon, 565 U.S. at 30 misplaced as t here is no evidence in this case that the police were following a Under the Federal Constitution, t he defendant’s reliance upon Seibert is

interpreted Justice Kennedy’s vote as limiting the reach of Seibert). n.2 (1st Cir. 20 p. 10 10) (observing that some federal circuit courts of appeal have narrower holding controls”); United States v. Jackson, 608 F.3d 100, 103 - 04 & p. 9 930, 949 (2007) (explaining that “[w]hen there is no majority opinion, the 10

verdict. defendant unsuccessfully moved for reconsideration and/or to set aside the The trial court denied the defendant’s motion. After the jury convicted him, the

to have a posses sory interest in this property testified at trial. least believed her to be d eceased. No other individual who claimed And to the contrary, evidence was presented that [the defendant] at trial. No evidence was presented t o show that she was even alive. belon ging to [Cec i lia Franc i s] Riley. Ms. Riley did not testify at [T] he State has alleged that [the defendant] retained property

him. Specifically, his counsel argued: State had failed to prove that the passport belonged to someone other than “intended to deprive . . . Riley of [i t].” The defendant also asserted that the passport was stolen or believed that it had probably been stolen” or that he the ground that the State had “presented no evidence that [he] knew the At trial, after the State had rested, the defendant moved to dismiss on

A. Relevant Procedural Facts

III. Sufficiency of the Evidence

poisonous tree” doctrine to the physical evidence at issue in this case. vehicle. Under these circumstances, we decline to apply the Gravel “fruit of the vehicle. Further, the defendant voluntarily consented to a full search of his vehicle in order to hide the purse and voluntarily gave Dupont the keys to his Moreover, the defendant voluntarily accepted Dupont’s offer to enter the

to take the defendant to jail that he expressed concern about the purse. Manchester DMV. It was only after she failed to arrive and the police decide d him to text his girlfriend and to wait several hours for her to arrive at the unwarned confession. He did not express concern until after the pol ice allowed expressed concern about the purse in his vehicle long after he made the rights, engaged in intervening act s of his own free will. See id. The defendant case, similar to the defendant in Barkus, after having been informed of his expand that doctrine beyond physical evidence. Second, the defendant in this doctrine in this case. First, we decline the defendant’s implied invitation to We similarly decli ne to apply the Gravel “fruit of the poisonous tree”

the poisonous tree’ doctrine.” Id. own free will.” Id. Thus, in Barkus, we declined “to apply the Gravel ‘fruit of being informed of her rights, the defendant engaged in an interv ening act of her the physical evidence at issue.” Id. “By elect ing to proceed with the test after Gravel, the defendant in Barkus was given “the option of refusing to provide being advised of her statutory right to refuse. Id. Unlike the defendant in In Barkus, the de fendant voluntarily consented to a breath test after p. 11 11

this property t estified at trial,” and “[t]he State presented no evidence that [she] was alive, “[n]o other individual who claimed to have a possessory interest in that the State’s proof failed because no evidence had been presented that Riley receiving the property believe that it probably has been stolen). He contended property actually be stolen and those that require only that the perso n cases and explaining the split between jurisdictions that require that the another. See State v. Pappas, 705 P.2d p. 11 1169, 1171 - 72 (Utah 1985) (citing because the State had failed to prove tha t he possessed property belonging to been stolen. Rather, the defendant argued that the evidence was insufficient insufficient because the State had failed to prove that the passport, in fact, had In the trial co urt, the defendant never argued that the evidence was

to the appellate court.” Id. (quotation omitted). an opportunity to rule on issues and to correct errors before they are presented common sense and judicial economy, recognizes that trial forums should have 169 N.H. 580, 583 (2017) (quotation omitted). “This rule, which is based on obj ection is required to preserve an issue for appellate review.” State v. Edic, general rule in this jurisdiction is that a contemporaneous and specific The defendant did not preserve this argument for our review. “The

probably stolen.” was not illegal and, thus, that he did not know or believe the passport was rational conclusion from the evidence is that [his] possession o f the passport that her passport had been stolen.” He argues that, absent such proof, “[a] possession of the passport was illegal, such as “testimony from Riley’s family State’s proof was insufficient because the S tate presented no evidence that his require the State to prove that the property was stolen.” He contends that the On appeal, the defendant argues, for the first time, that “[t]hese elements

specific purpose t o depri ve the owner of the property. RSA 637:7, I. believing that it ha d probably been stolen and that (3) he acted with the the property of another (2) knowing that the property ha d been stolen, or find, beyon d a reasonable doubt, that he (1) received, retained, or disp osed of To convict the defendant of receiving stolen property, the ju ry had to

guilt beyond a reasonable doub t. Id. inferences from it in the light most favorable to the State, could have found that no rational trier of fact, viewing all of the evidence and all reasonable challenge to the sufficiency of the evidence, the defendant must demonstrate de nov o.” Morrill, 169 N.H. at 718 (quotation omitted). To prevail upon his of the evidence raises a claim of legal error; therefore, our standard of review is dismiss based upon sufficiency of the evidence. “A challenge to the sufficiency The defendant argues that the trial court erred by denying his motion to

B. The Defendant’s Appellate Arguments p. 12 12

property belonged to someone el se. See State v. Stanley, 132 N.H. 571, 572 - 73 proposition that, to obtain a conviction, the State need show only that the On the other hand, there is also support in our case law for the

owners of the property.”). that he believed the pr operty was stolen, and that he intended to deprive the doubt that the property was stolen, that the defendant possessed the property, the charge of receiving stolen property, it must prove beyond a reasonable St ate v. Stauff, p. 12 126 N.H. 186, 189 (1985) (“In order for the State to convict on fact, stolen, in order to obtain a conviction for receipt of stolen property. See the proposition that the State must prove that the property at issue was, in “obvious.” Id. (quotations omitted). There is some support in our case law for Because our law is unsettled, an error, if any, was neither “clear” nor

clear or, equivalently, obvious.” Id. (quotation omitted). (quotation omitted). “‘Plain’ as used in the plain error rule is synonymous with at the time of appeal, a decision by the trial court cannot be plain error.” Id. omitted). “When the law is not clear at the time of trial and remains unsettled sense that the governing law was clearly settled to the contrary.” Id. (quotation plain error rule, an e rror is plain if it was or should have been obvious in the criterion — that the error must be plain — is not met. “For the purposes of the Here, even if we were to assume error, we conclude that the second

proceedings.” Id. (quotation omitted). seriously affect the fairness, integrity or public reputation of judicial plain; (3) the error must affect substantial rights; and (4) the error must under the plain error rule: (1) there must be an error; (2) the error must be otherwise result.” Id. (quotation omitted). “To reverse a trial court decisi on limited to those circumstances in which a miscarriage of justice would Pennock, 168 N.H. 294, 310 (2015). “We apply the rule sparingly, its use allows us to consider errors that were not raised in the trial court. State v. we confine our review to plain error. See Sup. Ct. R. 16 - A. The plain error rule Because the defendant has not preserved his argument for our review,

for our review. circumstances, we conclude that the defendant did not preserve his argument retained, or disposed of the property of another person.” Under these without objection, that the State had to prove that “the Defendant received, that the passport was, in fact, stolen. Rather, the court instructed the jury, observation, the trial court did not instruct the jury that the State had to prove defendant’s],” implying that such proof was sufficient. Consistent with th at State “presented evidence [that] the passport . . . was clearly not [the In considering the defendant’s motion, the trial court observed that the

possessory interest” in the passport. had an estate, that she had any relatives, that she had anyone who had a p. 13 13

we disagree. “The essential element of guilty knowledge on the part of a knew that the passport was stolen or believed that it proba bly had been stolen, insufficient for the jury to have found, beyond a reasonable doubt, that he To the extent that the defendant contends that the evidence was

consider this argument under our plain error rule. 637:7, I. Under those circumstances, we decline to exercise our discretion t o property had been stolen or believed that it had probably been stolen.” RSA receiving stolen property, the State had to prove that he “knew that the offense, the court properly instructed the jury that, to convict the defendant of the trial court may have entertained as to the required mens rea for the This argument misses the mark. Regardless of any erroneous belief that

stole n. show only that the defendant “should have known” that the property was demonstrates that the trial court believed that, to convict, the State had to that belongs to an estate?” The defendant contends that this question client have known that a landlord doesn’t hav e permission to give something during the argument on the defendant’s motion to dismiss: “[S]houldn’t your mental state to the evidence” because the trial court asked defense counsel The defendant also argues that “the trial court . . . applied the wrong

evident” from our prior case law. having to prove that the passport had, in fact, been stolen, was not “plainly law, any error in determining that the State could obtain a conviction without Commentaries § 223.6 cmt. 4(b) a t 239 (1980). Given the uncertainty in our that the property probably has been stolen.” Model Penal Code and that the property in fact have been stolen; it is sufficient if the actor believes convict a defendant of receiving stolen property, “[t]here is no requirement . . . derived, State v. Donohue, 150 N.H. 180, 183 (2003), makes clear that, to Moreover, the Model Penal Code, from which our Criminal Code is largely

had only to find that the defendant received the “property of another”). Yamaha constituted stolen property and concluding tha t, to convict, the jury failed to prove that, when he purchased the Yamaha outboard motor, the defendant’s contention that the evidence was insufficient because the State had been stolen); State v. Wong, p. 13 138 N.H. 56, 65 (1993) (rejecting the require a fact - finder to find that the defendant likewise did not know that it expert was unable to determine whether the aluminum had been stolen did not ascertained tha t the aluminum had been stolen; simply because the State’s to set aside the verdict when neither he nor the State’ s expert could have (1989) (rejecting the defendant’s assertion that the trial court erroneously failed property of another’” (quotation omitted)); State v. Brown, 132 N.H. 321, 328 the property; rather, the State had to prove on ly that the property was “‘the have to prove, beyond a reasonable doubt, the specific identity of the owner of (1989) (to convict the defendant of receiving stolen property, the State did not p. 14 14

circumstances is of sufficient strength that guilt is the sole rational assuming all credibility resolutions in favor of the State, the inferential chain of circumstantial evidence i s at issue, the critical question is whether, even story of how he came to possess the passport. However, “where solely in reviewing his sufficiency claim, we must assume that the jury credited his legally permitted to dispose of it.” In so arguing, the defendant presumes that, monetary value, was abandoned upon [Riley’s] death and the landlord was other rational conclusions, such as that the passport, with no identifiable The defendant argues that the evidence was insufficient to “foreclose

such property”). the same to the owner, and . . . [he] has the purpose to dep rive the owner of to have been lost or mislaid, . . . without taking reasonable measures to return a person commits theft when he “obtains property of another which he knows believe d that it probably had been stolen. See RSA 637:6 (2016) (providing that reasonable doubt, that the defendant knew that the passport was stolen or light most favorable to the State, the jury could have found, beyond a eviden ce and the reasonable inferences to be drawn therefrom, viewed in the because they constituted “evidence of a common scheme or plan”). From this were admissible to prove that he received stolen property in New Hampshire 123 N.H. 378, 391 (1983) (holding that the defendant’s transactions in Maine evidence was probative of the defendant’s mental state. S ee State v. Fennelly, Manchester DMV so that Guzman could obtain a new identity. All of this in the name of “Angel Berrios Rivera,” which were then submitted to the false social security card, fals e birth certificate, and a false lease agreement, all number” associated with that identity. His information was used to generate a try and consolidate the name and date of birth and the S ocial S ecurity Berrios Rivera” identity, the jury heard that the defendant looked for names “to individuals, such as “Angel Berrios Rivera,” for a fee. With regard to the “Angel The jury heard evidence regarding how he performs “backgroun ds” on thus, that the defendant w ould have had a reason to possess a stolen passport. identification documents so that an individual can obtain another identity, and There was evidence that the defendant works with others to obtain false

item in context, not in isolation.” Id. (quotation omitted). evidence in the light most favorable to the St ate and examine each evidentiary Morrill, 169 N.H. at 718. “Under this standard, however, we still consider the solely circumstantial, it must exclude all reasonable conclusions except guilt. probably had been stolen was solely circumstantial. When the evidence is regarding whether he knew that the passport was stolen or believe d that it The defendant argues, and the State does not dispute, that the evidence

omitted). knowledg e may be inferred.” Stauff, 126 N.H. at 190 (quotation s and brackets demonstrated by any surrounding facts or circumstances from which such receiver of stolen property can rarely be proven by direct evidence but it may be p. 15 15

HICKS, LYNN, BASSETT, and HANTZ MARCONI, JJ., concurred.

(footnote omitted). conclusion.” State v. Saunders, 164 N.H. 342, 3 51 (2012) (emphasis added)