2016-0577, The State of New Hampshire v. Jose Batista-Salva

man robbed a Wendy’s restaurant in Nashua. When a cashier was handing an The jury could have found the following facts. On January 3, 2016, a

requirement or consider them under plain error review. We affirm. extent his arguments are not preserved, he asks us to waive our preservation tampering indictment was impermissibly constructively amended. To the each of which is premised on an underlying argument that the witness (Colburn, J.). S ee RSA 641:5, I (2016). He raises three arguments on appeal, conviction for witness tampering following a jury trial in Superior Court HANTZ MARCONI, J. The defendant, Jose Batist a - Salva, appeals his

brief and orally, for the defendant. Thomas Barnard, senior assistant appellate defender, of Concord, on the

assistant attorney general, on the brief and orally), for the State. Gordon J. MacDonald, attorney general (Susan P. McGinnis, senior

No. 2016 - 0577 Hillsborough - southern judicial district

address of the court's home page is: http://www.courts.state.nh.us/supreme. available on the Internet by 9:00 a.m. on the morning of their release. The direct by E - mail at the following address: reporter@courts.state.nh. us. Opinions are corrections may be made before the opinion goes to press. Errors may be reported 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 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 as 2

Quintero, 16 p. 2 2 N.H. at 542 (quotation omitted). This prejudice analysis often properly the charges against him or in his ability to prepare his defense.” impermissible if they prejudice “the defendant either in his ability to understand omitted); accord Quintero, 162 N.H. at 542. Amendments of this third type are committed.” State v. Elliott, 133 N.H. 759, 764 (1990) (emphasis and quotation the scope of the crime alleged; for instance, an allegation of how the crime was allegation in the indictment that has the effect of specifying and circumscribing one “that does not alter the crime charged in an indictment, but changes an (citations omitted). In between these categories is a third type of amendment: without the need to return to the grand jury.” Quintero, 162 N.H. at 542 involve merely the form of the indictment are freely allowed and may be made purport to change an element of the offense are invalid, while amendments that amended. See State v. Prevost, 141 N.H. 559, 560 (1997). “Amend ments that (2011). Once an ind ictment has been returned, its language cannot be freely imprisonment in excess of one year.” State v. Quintero, 162 N.H. 526, 541 by the grand jury before he or she may be tried for any offense punishable by Article 15 of the New Hampshire Constitution, requires that a person be indicted “RSA 601:1 (2001), which must be considered in conjunction with Part I,

argument, and whether it is preserved. begin by considering the defendant ’s underlying constructive amendment court, and therefore none of his arguments are preserved for our review. We defendant never presented his constructive amendment argument to the trial impermissibly constructi vely amended at trial. The State contends that the on an underlying argument that the witness tampering indictment was The defendant makes three arguments on appeal. All three are premised

others, but found him guilty of witness tampering. This appeal followed. the robbery. The court dismissed one charge. T he jury acquit ted him of three The State brought the defendant to trial on five indictments arising from

common sense on his side not to put my name out there.” He also said, “[A]ll I was asking is for you to talk to your brother and put some mouth again and we will not have no beef,” and “[r] eal men don’t tell on a soul.” brother to stop s aying that was me,” “[t] ell him to never say my name off his committed the robbery. The defendant told C.D. “[t] hat was not me,” “tell your Facebook. The defendant asked C.D. why M.D. was saying that the defendant The next day, the defendant contacted M.D.’s brother, C.D., via

defendan t was the robber. robbery, M.D. called 9 - 1 - 1 and reported to the responding officer that the the defendant, a former employee of that Wendy’s restaurant. After the M.D., thought he recognized the robber’s voice. M.D. believed the robber was Although the robber’s face was covered by a bandana, the manager on duty, up to the open window, pointed a gun at the cashier, and demanded money. order to a customer via the restaurant’s drive - thr ough window, the robber ran p. 3 3

preserve d by (1) his objection to adm ission of the Facebook messages, (2) his The defendant argues that his constructive amendment argument was

N.H. 565, 57 p. 3 3 (2017). articulated in his appellate brief before the trial court. State v. McInnis, 169 bears the burden of demonstra ting that he specifically raised the arguments Wilson, 169 N.H. 755, 768 (2017). The defendant, as the appealing party, and to correct errors before they are presented to the appellate court. State v. general policy that trial forums should have an opportunity to rule on issues expressed in both our case law and Supreme Court Rule 16(3)(b), reflects the see State v. Mouser, 168 N.H. 19, 27 (2015). This preservation requirement, State v. Pl antamuro, 171 N.H. ___, ___ (decid ed Sept. 7, 2018) (slip op. at 6); consider issues raised on appeal that were not presented to the trial court. court and therefore are not preserved for our review. Generally, we do not The State asserts that these arguments were never presented to t he trial

jury found that he “told M.D. [to] refrain from providing his name to police.” to instruct the jury that he could only be convict ed of witness tampering if the police.” Finally, the defendant submits that the trial court erred when it failed to whether the defendant “told M.D. [to] refra in from providing his name to admitting the Facebook messages into evidence because they were not relevant further argues that the trial court unsustainably exercised its discretion in because there was no evidence that he “told M.D.” anything. The defendant contends that his conviction is not supported by legally sufficient evidence operates as a premise in each of the defendant ’s further arguments. He The conclusion that an impermissible constructive amendment occurred

impermissible because it prejudiced him. alleged crime was committed. He further argues that the amendment was third type because the phrase “told M.D.” specified and circumscribed how the rather than M.D.” The defendant then claims that this a mendment was of the “to allege that he committed witness tampering by communicating with C.D. t he defendant argues that the indictment was constructively amended at trial no evidence that [the defendant] told M.D. anything.” In light of these points, Because the messages were sent to C.D., not M.D., he argues that “there was related to the indictment was his Facebook messages to M.D.’s brother, C.D. (Emphasis added.) The defendant contends that the only evidence at trial that Jose Batista - Salva told M.D. [to] refrain from pro viding his name to police....” attempted to induce or otherwise cause M.D.. . . to withhold information when defendant, “believing that an official proceeding. . . was pending, purposely In this case, the witness tampering indictment alleged that the

589 - 91 (2001); Elliott, 1 p. 3 33 N.H. at 765 - 67. e.g., State v. Oakes, 161 N.H. 270, 279 (2010); State v. Doucette, 1 p. 4 46 N.H. 583, the defendant relied upon the specific factual allegations in the indictment. See, entails a review of whether the record of the trial court proceedings shows that 4

defendant’s argument. Compare Mouser, 168 N.H. at 28 (declining to waive absence of the record we need to properly evaluate the merits of the tampering charge. W e decline to waive our preservation requirement in the factual allegations in the indictment in defending against the witness trial court proceedings is ambiguous as to whether the defendant relied on the case is insufficiently developed on the issue of reliance. Here, t he record of the trial court, see Oakes, 161 N.H. at 279, we conclude that the record in this the constructive amendment claim brought on appeal was not raised to the While reliance, or the lack thereof, may be evident in the record even if

133 N.H. at 765 - 6 7. defending against the charge. See, e.g., id.; Doucette, 1 p. 4 46 N.H. at 591; Elliott, defendant relied upon the specific factual allegations in the indi ctment in prejudice inquiry often entails a review of whether the record shows that the him or in his ability to prepare his defense. See Oakes, 161 N.H. at 279. This prejudiced him either in his ability to properly understand the charges against argument would require us to determine whether the purported amendment this case, evaluating the merits of the defendant’s constructive amendment insufficient ly developed factual or legal record to guide our analysis. See id. In whether the failure to raise the argument to the trial court results in an N.H. at 28. One factor we consider when deciding to exercise this discretion is thus we have discretion to wai ve our preservation requirement. Mouser, 16 8 Preservation is a limitation on the parties to an appeal, not the reviewing court; if we find that his constructive amendment argument is not preserved. The defendant argues that w e should waive our preservation requirement

not preserved. therefore conclude that the defendant ’s constructive amendment argument is opportunity to consider the argument the defendant raises on appeal. We must be prejudicial to be impermissible). Thus, the trial court did not have the Quintero, 162 N.H. at p. 5 5 p. 4 42 (explaining that a n amendment of the t hird type police. Nor did he argue that he was prejudiced by such an amendment. See tampering by telling C.D. to tell M.D. to refrain from providing his name to the indictment was constructively amended t o allege that he committed witness in the indictment. The defendant never argued, as he does on appeal, that the witness tampering, but was not sufficient to convict him of the crime charged may have been suff icient to convict the defendant of an inchoate variation of the hearing on that motion, he argued that the evidence adduced by the State attempts to cause M.D. to withhold information. In his motion for JNOV and at declaration of his innocence, the belief that he’s being framed,” and were not dismiss the witness tampering charge, he argued that the messages were “a tampering charge, “or at least the way it was charged.” In his motion to messages, the defendant argued that they were not relevant to the witness argument at the hearing on that motion. In his objection to admission of the and (3) his motion for judgment notwithstanding the verdict (JNOV) and his motion to dismiss the witness tampering charge at the close of the State’s case, 5

LYNN, C.J.