2018-0355, State of New Hampshire v. Paulson Papillon

and (3) finding the evidence sufficient to support his convictions. We affirm. that he offered to facilitate the murder of another suspected police informant; admitting evidence, in violation of New Hampshire Rule of Evidence 404(b), he knowingly, intelligently, and voluntarily waive d his right to counsel; (2) (201 6). On appeal, h e argues that the trial court erred by: (1) concluding that to reckless second - degree murder, see RSA 626:8 (2016); RSA 630:1 - b, I (b) murder, see RSA 629:3 (201 6); RSA 630:1 - a, I(a) (201 6), and as an accomplice t he defendant, Paulson Papillon, was convicted of conspiracy to commit HANTZ MARCONI, J. Following a jury trial in Superior Court (Brown, J.),

and orally), for the defendant. Law Offices of K elly E. Dowd, PLLC, of Keene (Kelly E. Dowd on the brief

attorney general, on the brief and orally), for the State. Gordon J. MacDonald, attorney general (Peter Hinckley, senior assistant

No. 2018 - 0355 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

had a n acquaintance drive him to Massachusetts earlier that day. p.m. The defendant “made sure he wasn’t there” when M.P. was killed, having firing the .357 six times. M.P. was shot twice and died at approximately 6: p. 2 20 apartment building. W hen M.P. began to walk away, Stillwell ran after him, on his life. This time, Stillwell, Smith, and Younge found M.P. outside his start ed walking up the street towards M.P.’s residence to make another attempt captured on the store’s security cameras. At approximately 6:17 p.m., they Younge at a convenience store near M.P.’ s apartment building where they were after 6:00 p.m., Stillwell — armed again with the .357 — and Smith met November 3, Stillwell called and sent a text message to the defendant. Shortly the four men rose to an unusual level. At approximately 6: 00 p.m. on someone else kill M.P. On both November 2 and 3, cell phone contact among in court and said if Stillwell, Smith, and Younge “couldn’t do it,” he would have after Halloween. He reiterated that he “needed it done” before he had to appear The defendant was upset when he discovered that M.P. was still alive

kill M.P. after they saw him in his residence that night. However, Stillwell, Smith, and Younge decided “it wasn’t a good opportunity” to security cameras could prove he was in another state when M.P. died. provided. Meanwhile, the defendant went to a casino in Connecticut so that its and Smith were both armed — Stillwell with the.357 that the defendant had the costumes, Stillwell, Smith, and Younge left to find and kill M.P. S til lwell intended Stillwell, Smith, and Younge to wear as disguises. Deciding against defendant provided a gun — a .357 — and Halloween costumes, which he men to kill M.P., saying it should happen that night. To facilitate this plan, t he met at one of the trap houses. T he defendant once again pressed the three On October 31, Halloween, the defendant, Stillwell, Smith, and Younge

that it needed to happen “before he had court.” with his associates, offering them money and drugs to do so and emphasizing Younge murder M.P. The defendant continued to raise the topic of killing M.P. released, he paid to bail Smith out of jail so that Smith could help Stillwell and suspected role in the defendant’s arrest. The day after t he defendant was several days, he urged Stillwell, Smith, and Younge to kill M.P. for his The defendant was released on bail on October p. 2 2 6, and over the next

“snitch” responsibl e for his arrest. the hotel was searched, and t he defendant came to believe that M.P. was the Manchester hotel. That same day, the defendant was arrested and jailed after confidential informant and M.P. each purchased drugs from the defendant at a from the defendant, Stillwell, Smith, and Younge. On October p. 2 2 1, 2015, a they furthered their operation. The victim, M.P., regularly purchase d drugs access to at least two apartment buildings, called “trap houses,” from which Michael Younge, sold drugs in and around Manchester. The four men shared 2015, t he defendant and his associates, Adrien Stillwell, Nathaniel Smith, and The jury could have found the following facts. During the latter half of p. 3 3

his involvement in M.P.’s death. associates out of jail in order to kill them before they could tell the police about was arrested, but u ltimately, t he defendant wanted to bail himself and his to send money to Stillwell and had her deliver drugs to Younge before Younge implicate him in M.P.’s murder. T he defendant told his si ster that he wanted and nervous because he thought Stillwell, Smith, and/or Younge would was released in connection with M.P.’s death. T he defendant was frustrated murder, and Younge t urned himself in on November 19 after his photograph Smith had also been incarcerated in November on charges unrelated to M.P.’s calls from the prison to discuss the ongoing murder investigation. Stillwell and defendant also communicated frequently with his sister via recorded phone have it done” because M.P. was going to inform on him “for some drugs.” The done” when he received a phone call after M.P.’ s death, and that he “had to death with L.M., a fellow inmate. The defendant told L.M. that he “knew it was M.P.’s murder. While incarcerated, he shared unpublici zed details about M.P.’s On November 9, the defendant was arrested on charges unrelated to

defendant said, “There’s where I killed my f**king rat.” While an other associate was driving the defendant around Manchester, the Hampshire once he believed the investigation into M.P.’s death had cooled off. club in Connecticut. After a few days, the defendant return ed to New The defendant paid for Stillwell ’s and Younge’s expenses a t a casino and strip had worn the day before, and Stil l well and Younge discarded their cell phones. Connecticut in a rented car. Along the way, Younge discarded the clothes he On November 4, the defendant, Stillwell, and Younge drove to

four of them discussed going to Connecticut the next day “to get out of town.” store’s security camera would have them on video before the murder, and the the defendant became upset when Younge told him that the convenie nce “get back to business” now that the suspected informant was dead. However, handing out drugs and money to his three associates, and said th at they could was killed. The defendant was happy to hear that M.P. was dead, started in an attempt to avoid being overheard, and his associates recounted how M.P. T he defendant met with Stillw e ll, Smith, and Younge in A.D.’s bathroom

thereafter. was a large quantity of drugs waiting for him there. Smith arrived shortly that time had returned to the trap house, sent Smith a text message that there drugs that she owed M.P. At approximately 8:00 p.m., the defendant, who by told A.D. to try calling M.P., feigning the need to set up a delivery for some twice and had exchanged text messages with the defendant. The defendant shooting, cell phone records showed that Stillwell had called the defendant lived there, A.D., if the defendant “was back yet.” Within minutes of the where they had met the defendant on Halloween and asked the woman who After fleeing the scene, Stillwell and Younge return ed to the apartment p. 4 4

voluntarily exe rcising his informed free will,’ then a waiver may be found to be 835). “[I] f a defendant is ‘ literate, competent, and understanding, and . . . made w ith eyes open. ’” Barham, 126 N.H. at 637 (quoting Faretta, p. 4 422 U.S. at that the record will establish that he knows what he is doing and his choice is defendant ‘ aware of the dangers and disadvantages of self - representation, so (1994) (quoting Barham, 126 N.H. at 637). “The cour t must also make the presumption against waiver ’ of counsel.” State v. Davis, 139 N.H. 185, 190 327, 328 (2003). “The court must, in this analysis, ‘ indulge in every reason able knowingly and intelligently made. See id. at 803 - 04; State v. Thomas, 150 N.H. timely fashion, the court must ascertain whe ther the choice has be en has clearly and unequivocally expressed his desire to represent himself in a voluntary. State v. Towle, 1 62 N.H. 799, 803 (2011). Thus, o nce a defendant (1) timely; (2) clear and unequivocal; and (3) knowing, intelligent, and T o be effective, an assertion of the right to self - representation must be:

Scarborough, 12 p. 4 4 N.H. 363, 369 (1983). case, including the defendant’s background, experience, and conduct. State v. counsel, which depends upon the particular fa cts an d circumstances of the the State to prove an intentional relinquishment or abandonment of the right to benefits.” Faretta v. California, 422 U.S. 806, 835 (1975). T he burden is on counsel,” he “must ‘ kn owingly and intelligently’ forgo those relinquished relinquishes “many of the traditional benefits associated with the right to con stitutional right to counsel.”). B ecause an accused who represents himself a defendant to be represented by counsel. Rather, its exercise extinguishes the 631, 636 (1985) (“This right to self - representation does not coexist with that of the right to self - representation as “antithetical”); State v. Barham, 126 N.H. State v. Ayer, 150 N.H. 14, 25 - 26 (2003) (describing the right to counsel and exclusive; the exercise of one right nullifies the other. Martin, 1 7 1 N.H. at 593; The right to counsel and the right to self - representation are mutually

12 p. 4 4 N.H. 226, 231 - 33 (1983). Co nstitution and rely upon federal law only to aid our analysis. State v. Ball, N.H. 590, 593 (2018). We first address the defendant’s claim under the State the right to counsel and the right to self - representation. State v. Martin, 171 Amendment to the United States Constitution guarantee a criminal defendant Both Part I, Article 15 of the New Hampshire Constit ution and the Sixth

intelligently, and voluntarily waive d his right to counsel. represent himself because there was insufficient evidence that he knowingly, The defendant argues that the trial court erred by permitting him to

appeal followed. commit murder and as an accomplice to reckless second - degree murder. This Following a jury trial, the defendant was convicted of conspiracy to p. 5 5

N.H. 321, 322 (1993). without merit and warrant ing no further discussion. See Vogel v. Vogel, 137 we find that such an argument is, under the circumstances of this case, he was incompetent and therefore could not have waive d his right to counsel, experience, or even mental health.” To the extent the defendant is arguing that that the trial court “made no inquiry into [his] education, training, legal trial court failed to inquire into his “ability to represent himself,” specifically knowingly, intelligently, and voluntarily waived his right to counsel because the The defendant nonetheless argues that the record does not establish he

understanding of the informati on and cautionary warnings he received. unquestionably reassert his desire to represent himself and express his Throughout the trial court’s explanations, the defendant continued to no obligation to affirmatively offer advice or direction going forward. questions of law or courtroom procedure, but that stand by counsel were under counsel’s role, emphasizing that the defendant m ay seek their assistance on attorneys as stand by counsel. The court thorough ly explained stand by With the defendant’s approval, t he trial court appointed his defense

alcohol. also confirmed that the defendant was not then under the influence of drugs or responding to objections, and delivering closing arguments. The trial court witnesses, “presenting [his] cas e” after the State had rested, making and would be responsible for dealing with such legal issues, cross - examining had yet to be addressed at trial. The trial court informed the defendant that he experience, the “severity of [his] charges,” and the “significant legal issues” that proc eed ing without his attorneys, particularly in light of their criminal defense tension, but stressed that the defendant would be at a disadvantage in heads [with them] for a while.” The trial court noted that it had recognized this explaining that he disagreed with their trial strategy and had been “bumpi ng motions on his own behalf, articulated his perceived shortcomings of counsel, be represented by his trial counsel. The defendant, who had already dr aft ed with the defendant, first inquiring into the reasons why he no longer wished to defendant wished to represent himself. The trial court conducted a colloquy A fter two days of trial, defense counsel informed the trial court that the

record, we agree with the State. decision was knowing, intelligent, and voluntary. Based upon our review of the caution[ing] him on the pitfalls of self - representation,” that the defendant’s properly found, after inquiring of the defendant and “unambiguously intelligent, and voluntary. By contr ast, the State argues that the trial court sufficient colloquy, the court could not determine that his waiver was knowing, The defendant contends that because the trial court failed to conduct a

at 83 p. 5 5). knowing and intelligent.” Thomas, 150 N.H. at 328 (quoting Faretta, 422 U.S. p. 6 6

direct examination of J.M., an acquaintance of the defendant who lived in one defendant’s motion to represent himself had been granted. During the State’s The challenged testimony occurred on the third day of trial, after the

admitted in error, but that this error was harmless beyond a reasonable doubt. this testimony was harmless. We hold that the testimony at issue was in trinsic to the charged offenses, and alte rnatively, that any error in admitting the challenged testimony because it was properly admitted as evidence Rule of Evidence 404(b). The State argues that Rule 404(b) does not apply to because it was irrelevant and unduly prejudicial in violation of New Hampshire testimony that he had offered to kill another suspected police informant The defendant next argues that the trial court erred in admitting witness

we do under the State Constitution. 330. Accordingly, we reach the same result under the Federal Constitution as circumstances. S ee Faretta, 422 U.S. at 834 - 35; Thomas, 150 N.H. at 328, no greater protection than does the State Constitution under these Scarborough, 124 N.H. at 3 p. 6 69. T he Federal Constitution offers the defendant and voluntar ily waived his right to counsel. See Thomas, 150 N.H. 329 - 30; State has met its burden to show that the defendant knowingly, intelligent ly, On the particular facts and circumstances of this case, we conclude the

not that representation will be to his detriment.” Barham, 12 p. 6 6 N.H. at 639. at 834), “a defendant has a constitutional right to represent himself, whether or their own unskilled efforts, ’” Hart, 171 N.H. at 727 (quoting Faretta, 422 U.S. prosecutions defendants could better defend with counsel’s guidanc e than by of the right to defend himself.”). While “‘ [i]t is undeniable that in most criminal knowledge, as such, was not relevant to an assessment of his knowing exercise defendant] had mastered the intricacies [of the law] . . . [f]or his technical legal 422 U.S. at 836 (“We need make no assessment of how well or poorly [the 727 (2019) (quoting Godinez v. Moran, 509 U.S. 389, 399 (1993)); see Faretta, choose self - representation. ’” Hart v. Warden, N.H. State Prison, 171 N.H. 709, defendant’s ability to represent himself has no bearing upon his competence to Furthermore, c ontrary to the defendant’s assertion, “‘ a criminal

to counsel”). at 329 - 30 (identifying Davis as “setting forth model colloquy for waiver of right intelligent, and voluntary waiver of his right to counsel. See Thomas, 150 N.H. of the dangers and disadvantages of self - representation and made a knowing, the totality of circumstances, the record reflects that the defendant was aware not required that any precise language or inquiries be employed so long as, by with a defendant who wishes to waive his or her right to counsel, but we have court’s colloquy. W e strongly prefer that trial court judges engage in a colloquy We are not persuaded by the defendant’s remaining critiques o f the trial p. 7 7

used the evidence for impermissible ch aracter purposes and failed to state a testimony constituted inadmissible Rule 404(b) evidence because the State arguments, the defendant moved for a mistrial, arguing, in essence, that J.M. ’s O n the fifth day of trial, at the close of evidence and before closing

sentences. (E mphase s added.) The defendant challenges the admission of the emphasized

[J.M.:] Yes.

. . . . [PROSECUTOR:] No snitch, no case?

[J.M.:] Yes.

like he’s having his snitch killed? [PROSECUTOR:] That you can have your boyfriend’s snitch killed just

[J.M.:] Correct.

had with you? [PROSECUTOR:] And this is a conversation t hat. . . the Defendant. . .

up with $1000 and I could get rid of the guy that set my ex - fiancé up. case, or something li ke that. So he said wait. He was telling me to come and my boy will take care of it. And no snitch, no case or no body, no And he told me you can do just what I’m going to do. All I need is $1000 me. And my ex - fiancé had just gotten in big trouble for selling drugs. waiting for my daughter to come home. And [the defend ant] came up to [J.M.:] I was standing outside — well, standing at my doorway, and I was

have [with] the Defendant before [M.P.’s] shooting death. [PROSECUTOR:] Now if you can tell the jurors the conversation that you

T he following exchange then occurred:

State’s argument, the trial court overruled the defendant’s objection. informant — was not “extrinsic of the crime.” In apparent reliance on the testimony — t hat the defendant had offered to kill an a dditional, unrelated going to be doing in my case.” The State argued that the anticipated her words to the effect of give me some money and I’ll kill the snitch like I’m In response, the State proffered that J.M. would testify that the defendant “told to elicit testimony that he had “offered to commit another informant murder.” defendant objected on Rule 404(b) grounds, asserting that the State was about conversation the defendant had with her regarding her ex - fiancé. The of the trap houses, the prose cutor began eliciting testimony about a p. 8 8

(1st Cir. 2005)). 166 N.H. 73, 77 (2014) (quoting United States v. Epstein, 426 F.3d 431, 439 depends upon a forbidden inference of criminal propensity. ’” State v. Wells, evidence of other crimes, wrongs, or a cts — whose probative value exclusively (201 p. 8 8). The rule, “‘ by its very terms, excludes only extrinsic evidence — N.H. R. Ev. 404(b) (amended 2018); see State v. Plantamuro, 171 N.H. 253, 255

knowledge, identity, or absence of mistake or accident. such as proof of motive, opportunity, intent, preparation, plan, conformity therewith. It may, however, be admissible for other purposes, character of a person in order to show that the person acted in Evidence of other crimes, wrongs, or acts is not admissible to prove the

404(b) provided: At the time of the defendant’s trial, New Hampshire Rule of Evidence

(2010). the prejudice of the defendant’s case. State v. Nightingale, 160 N.H. 569, 573 discretion, an d will reverse only if it was clearly untenable or unreasonable to court’s ruling on the admissibility of evidence for an unsustainable exercise of admissibility of intrinsic evidence is found in Rule 403). We review the trial W illiams, 900 F.2d p. 8 823, 825 (5th Cir. 1990)) (noting that the applicable test for evidence.’” State v. Dion, 164 N.H. 544, 551 (2013) (quoting United States v. depends upon whether the evidence in question is “intrinsic” or “extrinsic” apply in deciding the admissibility of “similar acts” or “other acts” evidence orchestrate the murder of another suspected informant. “‘The proper test to is not ap plicable to the challenged testimony that the defendant offered to We first address whether the trial court erred in ruling that Rule 404(b)

second - degree murder. defendant of conspiracy to commit murder and as an accomplice to reckless the defendant’s motion for a mistrial. The next day, the jury convicted the No further arguments were offered by either party, and t he trial court denied

admission. kil l her snitch just like he was going to kill his snitch. So it’s an to motive and intent. But, again, it’s an admission that he would offer to charged. And even if it were to be considered 404(b), it’s clearly relevant defendant]. It’s res gestae. It’s intrinsic to the offenses for which he’s and our response to that was that it wa s an admission by [the [The defendant] did come up to the bench and raise a 404(b) objection,

response, the prosecutor said: precise c hain of reasoning to justify admitting it over his objection. In p. 9 9

N.H. at 546 - 47, 550 - 51 (concluding that evidence of defendant’s cell phone use enabled the jury to realistically evaluate [the victim’s] testimony”); Dion, 164 act, provided the jury with a full account of a single [criminal episode], and the charged crime where the act “took place immediately prior to the charged 166 N.H. at 7 8 (evidence of uncharged act had a “close temporal connection” to these statements are merely coincidental to the charged offenses. S ee Wells, conspiracy and murder of M.P., without a sufficient underlying factual nexus, November 2015, which bears a n arguable “temporal connectio n” to the charged M.P.’s murder. Although these statements were made to J.M. in early conspiracy to murder M.P. or the defendant’s liability as an accomplice to informant in a separate matter is not necessary to complete the story of the defendant agreed to have his “boy[s] . . . take care of” anothe r suspected police evidence intrinsic to the charged offenses. Evide nce that, for $1000, the charged offenses is too attenuated for that evidence of other acts to constitute Here, any c onnection between the challenged statements and the

M.P. admission to J.M. about conspiring with and soliciting his associates to kill in his case, and the challenged statement s “provided necessary context” for his with the defendant’s admission to J.M. about what he was “going to be do ing” was admissible as intrinsic evidence because it was inextricably intertwined 404(b). The State argues that the challenged testimony, as emphasized above, of [M.P.]” and that the admission of this evidence of other acts violated Rule another su spected police inform ant killed “was entirely unrelated to the killing The defen dant argues that J.M.’s testimony about his offer to have

evidence”)). 115 (Tex. Crim. App. 2000) (en banc) (explaining “same transaction contextual evidence. ’” Wells, 166 N.H. at 78 (quoting Wesbrook v. State, 2 p. 9 9 S.W.3d p. 10 103, the commission of [the charged] act so that it may realistically evalu ate the jury has a right to hear what occurred immediately prior to and subsequent to admis sible under the rationale that ‘ events do not occur in a vacuum, and the satisfy the[] requirements” of intrinsic evidence). “This type of evidence is this list — as quoted in Wells — as “[e]xamples of general categories that may 748); see United States v. Clay, 667 F.3d 689, 698 (6th Cir. 2012) (referring to the story of the charged offens e. ’” Id. at 77 - 78 (quoting Hardy, 228 F.3d at charged offense, form s an integral part of a witness’ s testimony, or completes directly probative of the charged offense, arises from the same events as the evidence”)). “‘ Typically, such evidence is a prelude to the charged offense, is States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000) (discussing “background temporal, or spatial connection with the charged crime. Id. (citing United Id. “Intrinsic” or “inextricably intertwined” evidence will have a causal, episode” or the o ther acts were “necessary preliminaries” to the crime charged. charged are “inextricably intertwined” or both acts are part of a “single criminal 404(b), when the evidence of the other act and the evi dence of the crime “Othe r act” evidence is “intrinsic,” and therefo re not subject to Rule 10

other act evidence is not an open ended basis to admit any and all other act at 748 (“[T]he ‘background circumstances exception’ to the general exclusion of such that they formed an “integral” part of her testimony. See Hardy, 228 F.3d sufficient connection to the remainder of the defendant’s admissions to J.M. such purpose.” (emphasis added)). T he c hallenged statements do not have a charged must be confined to that which is reasonably necessary to accom plish gestae or same transaction introduced for the purpose of explaining the crime § 876, at 175 (2008) (“Other criminal act evidence admissible as part of the res Wells, 166 N.H. at 77 - 78; see Clay, 667 F.3d at 698; 29A Am. Jur. 2d Evidence defendant was admitting he was going to kill the “snitch” in his own case. “realistically evaluate her testimony” about the charged offenses — that the the statements were not n ecessary or essential to enable the jury to another suspected police informant added “probative force” to J.M.’s testimony; not enough that the challenged statements about the defendant’ s offer to kill Evidence § 190, at 754 (6th ed. 2006)). Contrary to the State’s position, i t is of the charged offense” (quotation omitted)); 1 George Dix et al., McCormick on offense that is not essential for providing a coherent and intelligible des cription evidence was no t intrinsic where “it [was] a completely separate and distinct crimes. See Wells, 166 N.H. at 78; Clay, 667 F.3d at 698 (explaining that J.M.’s testimony unintelligible or creates a vacuum in the story of the charged case.” W e are not persuaded that removing the challenged statements renders by “do[ing] just what [he’s] going to do. . . . [N]o snitch, no case, or no body, no defendant’s advice to her on how to handle her ex - fiancé’s “snitch” problem — F.3d at 698. Absent the challenged statements, J.M.’s testimony details the admitted he was going to kill the “snitch” in his case. See id. at 77; Clay, 667 fall short of forming an integral part of J.M.’s testimony that the defendant Wells, 166 N.H. at 77 - 78 (quotation omitted), here t he challenged statements about the charged offense (s) may als o suggest that said evidence i s intrinsic, Although evidence that “forms an integral part of a witness’s testimony”

assaults]”). surrounding the commission of the alleged [aggravated felonious sexual because the t hreats “were a material part of the entire course of conduct (explaining that Rule 404(b) did not apply to th reats defendant made to victim did not apply (quotation omitted)); State v. Martin, 138 N.H. 508, 517 - 18 (1994) indictm ent [were] part of a single criminal episode” in concluding Rule 404(b) (emphasizing that “[t]he conversations at issue and the crime charged in the admissible evidence of a single criminal episode”); Nightingale, 160 N.H. at 574 (concluding Rule 404(b) did not apply “because the. . . testimony was to murder M.P. or his subsequent murder. S ee Wells, 166 N.H. at 77 episode” or at all part of a sequence of events leading to the charged conspiracy of another, unrelated, suspected “snitch” was not “part of the same criminal Importantly, the defendant’s apparent willingness to facilitate the murder

was intrinsic to the charge d offense of negligent homicide). during a thirty - seven minute car ride prior to a fatal collision with a pedestrian p. 11 11

State may not employ a trial strategy of introducing evidence whic h itself (quotation omitted); see also State v. Crosby, 142 N. H. 134, 138 (1997) (“The serve as a bac kdoor to circumvent” this purpose. Gibbs, 797 F.3d at 423 Beltran, 153 N.H. 643, 647 (2006). The i ntrinsic evidence exception “cannot prevent a conviction based upon evidence of other crimes or wrongs.” State v. “ensure that the defendant is tried on the merits of the crime as charged and to 404(b), we must remain mindful of the purpose of Rule 404(b), which is to In analyzing the applicability of the intrinsic evidence exception to Rule

criminal conduct.”). for admissibility under Rule 404(b) because they reveal or suggest prior admissions . . . and thus not hearsay, they must nevertheless also be analyzed F.3d 1414, 1418 (10th Cir. 1998) (“Although the statements are party State v. Belonga, 163 N.H. 343, 359 (2012); see United States v. Oberle, 136 801(d)(2)(A) — it must also pass muster under the other rules of evidence. statement is not admissible merely because it is not hearsay under Rule part of [a] conversation other parts of whic h are admissible”). An out of court interwoven” evidence “does not make evidence admissible simply because it is a N.E.2d 59, 63 (N.Y. 1981) (clarifying that the admissibility of “inextricably and after the charged offense under Rule 404(b)); People v. Ventimiglia, 420 (1993) (analyzing defendant’s collective statements and behavior shortly before a verbal threat under Rule 404(b)); State v. Richardson, 138 N.H. 162, 164 - 68 evide nce doctrine. See State v. Pepin, 156 N.H. 269, 275 - 79 (2007) (analyzing by a party opponent, i.e., “admissions,” does not implicate the intrinsic we disagree. T he mere fact that a witness’s testimony constitutes statements challenged testimony because it constitutes a statement of a party opponent, To the extent the State argues that Rule 404(b) does not apply to the

without the evidence, “it might be unclear why [witnesses] came forward”). government’s argument that evidence of other acts was intrinsic because, blue’”); United States v. Gibbs, 797 F.3d 416, 424 (6th Cir. 2015) (rejecting the relationship ultimately made it ‘unlikely that the act would occur out of the finding that such testimony was admissible under Rule 404(b) because “the the relationship between defendant and victim and rejecting the trial court’s Melcher, 140 N.H. 823, 829 - 30 (1996) (applying Rule 404(b) to testimony abou t informant to permissibly escape the requirements of Rule 404(b). See State v. defendant’s offer to arrange the killing of another, unrelated, suspected seldom spoke,” is also insufficient to allow J.M.’s testimony about the with no reason, to a person with whom he rarely interacted and to whom he unclear why the defendant “made an admission to murder out of the blue and The State ’s argument that, without the challenged testimony, it would be

“contains severe limitations”). F.3d at 698 (noting that the intrinsic evidence exception to Rule 404(b) constitu tes background evidence contains inherent limitations.”); Clay, 667 evidence the proponent wishes to introduce. Rather the very definition of what p. 12 12

172 N.H. __, __ (decided N ov. 22, 2019) (slip op. at 4). for a mistrial, this argu ment is inadequately briefed and is therefore waived. See State v. Barr, denied. Altho ugh the def e ndant claims on appeal that the trial court erred in denying his mo tion This error formed the ba sis for the def e ndant’s m otion for a mistrial, which the t rial court 1

reckless second - degree murder as charged in the indictment, the State was 629:3, I; RSA 630:1 - a, I(a). To convict the defendant as an accomplice to conspirators committed an overt a ct in furtherance o f the conspiracy. See RSA and/or Smith to cause the death of M.P., and that one or more of the co crime of murder be committed, the defendant agreed with Younge, Stillwell, th e indictment, the State was required to prove that, with a purpose that the To convict the defendant of conspiracy to commit murder as charged in

the erroneously admitted evidence itself. Id. at 589. consider the alternative evidence presented at trial as well as the character of the Sta te’ s evidence of guilt. Id. at 588 - 89. In making this determination, we evidence is merely cumulative or inconsequential in relati on to the strength of of an overwhelming nature, quantity, or weight and if the improperly admitted beyond a reasonable dou bt if the altern ative evidence of the defendant’ s guilt is erroneous admission and exclusion of evidence. Id. An error may be harmless the error did not affect the verdict s. Id. This standard applies to both the an error was harmless, the State must prove beyond a reasonable doubt that State v. Edic, 169 N.H. 580, 588 (2017) (quotation omitted). To establish that

than on the virtually inevitable presence of immaterial error. criminal process by focusing on the underlying fairness of the trial rather defendant’ s guilt or innocence, and promotes publi c respect for the purpose of a criminal trial is to decide the factual questi on of the The harmless - error doctrine recognizes the principle that the central

testimony was harmless beyond a reasonable doubt. because we agree with the State that any error in admitting t he challenged 404(b), we need not decide whether its admission under that rule was error Having concluded that the challenged evidence was subject to Rule

not apply. 1 court unsustainably exercised its discretion in concludin g that Rule 404(b) did admissibility is Rule 404(b). See Dion, 164 N.H. at 551. Therefore, the trial intrinsic to the charged offenses, the proper rule governing the statements’ suspected police informant. Be cause this evidence of other acts was not that the defendant offered to orchestrate the killing of another, unrelated, as an accomplice to M.P.’s murder, the jury was permitted to consider evidence whether to convict the defendant for conspiring to murder M.P. and for his role creates the necessity for admitting bad acts evidence.”). Here, in deciding p. 13 13

271, 279 - 80 (1996). This case presents a rare instance of a harmless Rule 404(b) error. State v. Smith, 141 N.H. 2

conclude that the State has met it s burden of proving that the error in erroneously admitted testimony was inconsequential. Accordingly, w e 2 M.P. and as an accomplice to M.P.’s eventual murder. I n relation, the overwhelming evidence of the defendant’s guilt in the conspiracy to murder challenged testimony denied the defendant a fair verdict. The jury had before it a review of the record belies any concern tha t the introduction of the undoubtedly prejudiced him, see State v. Davidson, 163 N.H. 462, 471 (2012), defendant’s offer to facilitate the murder of another suspected police informant 169 N.H. at 591 - 92. Although the admission of J.M.’s testimony about the guilt on both charges, the challenged testimony was inconsequential. See Edic, Compared to the substantial strength of the evidence of the defendant’s

638 (2019); Edic, 169 N.H. at 590; State v. Etienne, 163 N.H. 57, 85 - 86 (2011). the defendant’s consciousness of guilt. See State v. Colbath, 171 N.H. 626, defendant’s desire to kill his co - conspirators. These facts were all evidence of prevent his associates from talking to the police, up to and including the concern over whether he would be implicated in M.P.’s death and his efforts to testimony from the defendant’s fellow inmate, L.M., revealed the defendant’s murdered to “get out of town.” R ecorded phone calls with his sister and alibi and took Younge and Stillwell to Connecticut the day after M.P. was Halloween and before M.P.’s murder on November 3 so that he would have an The jury also heard evidence about how the defendant left the s tate on

defendant’s o wn inculpatory statements supporting both charges. once M.P. was murdered. Notably, there was also substantial evidence of the his associates with drugs, money, and an expenses - paid trip to Connecticut before and after the murder. T estimony showed that the defendant rewarded records show ed the defendant was in contact with his co - consp irators shortly that she confirmed M.P.’s death at the defendant’s behest, and cell phone M.P.’s death and told his associates to “get back to business.” A.D. testified M.P. T he jury heard evidence that the defendant was happy upon learning of and encouraged his associates to wear Halloween costumes as disguises to kill informant, had paid to bail Smith out of jail so that Smith could help kill M.P., that the defendant wante d M.P. killed because he thought M.P. was a police M.P.’s murder. Other witnesses corroborated his testimony, including the fa ct s detail regarding the defendant’s role in encouraging, planning, and facilitating consp irator and as an accomplice to the murder of M.P. Younge testified in T here was overwhelming evidence of the defendant’s guilt as a co -

RSA 630:1 - b, I(b). manifesting an extreme indifference to the value of human life. RSA 626:8; and/or Smith, caused the death of M.P. recklessly under circumstances required to prove that the defendant, acting in concert with Younge, Stillwell, p. 14 14

conspiracy to com mit murder alleged in pertinent part: agreement to murder M.P. on November 3. The defendant’s indictment for the defendant’s indictment did not allege that the defendant participated in an conspiracy . . . .” State v. Donohue, 150 N.H. 180, 185 (2003). Furthermore, require the commission of the substantive offense that is the object of the in fact committed because “[c]onspiracy is an inchoate crime that does not agreement to commit murder occurred on the same day that said murder was As an initial matter, t he State was not required to prove that a n

defendant’s guilt. 2015.” This argument misconstrues the State’s burden in proving the because “[t]here was no meeting of the minds to kill [M.P.] on November 3, agreement to cause M.P.’s death to support his conviction for conspiracy The defendant argues that there w as insufficient evidence of an

degree murder, in part, as “[p]urposely caus[ing] the death of another”). conspiring to commit first degree murder. See RSA 630:1 - a, I(a) (defining first (1986) (quotation omitted). Here, the State charged the defendant with commits an overt act in furtherance thereof. State v. Kilgus, 128 N.H. 577, 586 will warrant a conviction for conspiracy,” so long as one of the co - conspirators understanding between the parties to cooperate in an illegal course of conduct commission of a crime. State v. Chaisson, 123 N.H. 17, 24 (1983). “[A] tacit RSA 629:3, I. Conspiracy punishes the agreement to commit or cause the

one of the conspirators in furtherance of the conspiracy. cause the commission of such crime, and an overt act is comm itted by statute be committed, he agrees with one or more persons to commit or A person is guilty of conspiracy if, with a purpose th at a crime defined by

As to the defendant’s conspiracy conviction, RSA 629:3, I, provides:

State v. Lisasuain, 167 N.H. 719, 722 (2015). the evidence raise a claim of legal error, our standard of review is de novo. Vincelette, 172 N.H. 350, 354 (2019). Because challenge s to the su fficiency of the State, could have found guilt beyond a reasonable doubt. Sta te v. the evidence and all reasonable inferences from it in the light most favorable to evidence, the defendant must prove that no rational trier of fact, viewing all of support his convictions. To prevail upon his challenge s to the sufficiency of the Lastly, the defendant argues that the evidence was insufficient to

therefore, harmless beyond a reasonable doubt. See Edic, 16 9 N.H. at 588 - 92. admitting the challenged testimony did not affect the verdict s, and was, p. 15 15

and even planning to kill his co - conspirators to keep them quiet. T he jury also sister while he was in prison to deliver drugs to Younge and money to Stillwell, murder by taking Stillwell and Younge to Connecticut, coordinating with his establish alibis for himself and attempted to cover up his involvement in the M.P. was dead. The State presented evidence that the d efendant took steps to drugs and money the night of the murder, and that he had A.D. confirm that M.P.’s death to the defendant, that the defendant rewarded his associates with November 3. The re was e vidence that Stillwe ll and Younge took steps to report in contact with his associates shortly before and after M.P. was shot on need to have M.P. killed, and cell phone records showed that the defendant was Hallowee n. After the aborted H alloween attempt, the defendant reiterated his kill M.P., promised them money and drugs, and pushed them to kill M.P. on presented evidence that the defendant urged Stillwell, Smith, and Younge to have M.P. killed and his willingness to work toward that end. T he State several conversations with Stillwell, Smith, and Younge regarding his desire to that, after the defendant was released on bail on October 26, the defendant had 128 N.H. at 586 (quotation omitted). At trial, t he State presented evidence Smith, and Younge to cause M.P.’s death as alleged in the indictment. Kilgus, the defendant had, at a minimum, a “tacit understanding” with Stillwell, The re was sufficient evidence from which a jury could have found that

evidence . . . .”). (2011) (“[T]he jury was free to weigh and draw inferences from all of th[e] testimony are left to the jury.”); State v. Demond - Surace, 162 N.H. 17, 29 evidence, determining witness credibility, and resolving conflicts in witness State v. Woodbury, 172 N.H. 358, 364 (2019) (“[M]atters such as weighing characterization of Stillwell, Smith, and Younge’s behavior. It was not. S ee argument presumes that the jury was compelled to adopt th e defendant’s Halloween while wearing costumes that the defendant had provided. Th is defendant] proposed to carry out his intended plot” — namely, kill ing M.P. on Smith, and Younge “expressly rejected the means and mode that [the arguing that the evidence as to that element was insufficient because Stillwell, “offer” and “reject[ion]” into the agreement element of the conspiracy statute, The defendant also attempts to import the contractual principles of

argument is unavailing. found that a “meeting of the minds” occurred on November 3, the defendant’s (Emphasis added.) Thus, even as suming that no rational jury could have

overt acts.] overt acts in furtherance of the conspiracy: [alleging nineteen distinct or more of the co - conspirators committed one or more of the following [and/or] Nathaniel Smith . . . to cause the death of [M.P.], and that one 630, Paulson Papillon agreed with Michael Younge, Adrien Stillwell, purpose that the crime of murder be committed, a crime defined by RSA [O]n or between October 8, 20 p. 15 15, and November 3, 2015, . . . with the p. 16 16

not consider whether the evidence was sufficient as to the unchallenged element. overt act committed by one of the conspirators in furtherance of the conspiracy. We therefore do limited to the “agreement” element. He does not argue that there was insufficient evidence of an The defendant’s challenge to the sufficiency of the evidence on his conspiracy conviction is 3

value of human life,” RSA 630:1 - b, I(b), is not inconsistent with the defendant’s “recklessly under circumstances manifesting an extreme indiffer ence to the The fact that the jury concluded that M.P.’s death was ultimately caused

exists. rational basis. Id. We agree with the State that no reversible inconsistency circumstances of the case, the jury’s conclusions can be reconciled on a inconsistency between verdicts if, upon consideration of the facts and State v. Chapin, 128 N.H. 355, 357 (1986). There is no reversible “[a]n alleged or actual lack of rational compatibility between the verdicts.” the defendant to relief. Inconsistency, in the context of this argu ment, means are not inconsistent, and alternatively, any such inconsisten cy does not entitle homicide.” See RSA 626:8; RSA 630:1 - b, I(b). The State avers that the verdicts intent simultaneously, and “[o]ne cannot solicit, conspire or plan . . . a reckless because the evidence cannot demonstrate a reckless intent and a purposeful reckless second - degree murder is inconsistent with his conspiracy conviction The defendant first suggests that his conviction as an accomplice to

that the defendant was guilty as an accomplice to the murder of M.P. there was sufficient evidence for the jury to find beyond a reasonable doubt statute. We a re not persuaded by the defendant’s arguments and conclude multiple legal arguments regarding the interpretation of the accomplice liability conviction as an accomplice to reckless second - degree murder, including makes several arguments that the evidence was insufficient to support his in that Younge, Stillwell and/or Smith shot [M.P.] in the torso.” The defendant circumstances manifesting an extreme indifference to the value of human life, and/or Nathaniel Smith, cause d the death of [M.P.] recklessly under “Paulson Papillon, acting in concert with Michael Younge, Adrien Stillwell RSA 630:1 - b, I(b). His indictment for second degree murder alleged that: defendant as a n accomplice to reckless second - degree murder. See RSA 626:8; We next consider whether there was sufficient evidence to convict the

murder. accordingly uphold the defendant’s conviction for conspiracy to commit Younge, Stillwell, and /or Smith to purposely cause the death of M.P. We 3 reasonable doubt that the re was an agree ment b etween the defendant and State, we hold that a rational trier of fact could have found beyond a him “for some drugs.” Viewing this evidence in the light most favorable to the he, the defendant, “had to have it done” because M.P. was going to inform on associate, “There’s where I killed my f**king rat,” and told L.M. in prison that heard witness testimony that, after M.P.’s killing, the defendant told an p. 17 17

(a) With the purpose of promoting or facilitating the commission of the offense if: III. A person is an accomplice of another person in the commission of an

RSA 626:8 provides in pertinent part:

isolation. Id. interpret a statute in the context of the o verall statutory scheme and not in might have said or add language it did not see fit to include. Id. Finally, we intent from the statute as written and will not consider what the legislature ordinary meaning. Rivera, 162 N.H. at 185. Further, we interpret legislative statute itself, and, if possible, construe that language according to its plain and to promote justice. RSA 625:3 (2016). We first look to the language of the provisions of the Criminal Code according to t he fair import of their terms and expressed in the words of the statute considered as a whole. Id. We construe interpretation, this c ourt is the final arbiter of the legislature’s intent as State v. Rivera, 162 N.H. 182, 185 (2011). In matters of statutory Statutory interpretation is a question of law, which we review de novo.

law on accomplice liability do not support the defendant’s interpretation. reckless second - degree murder. The plain language of RSA 626:8 and our case argument that the evidence was insufficient to convict him as an a ccomplice to accomplice liability statute itself, which we understand to underlie his The defendant also raises multiple legal arguments interpreting the

added.) Therefore, n o reversible inconsistency exists. agreed with Stillwell, Smith, and/ or Younge to cause M.P.’s death. (Emphas i s committed,” a s defined by the first degree murder statute, RSA 630:1 - a, I(a), he conspiracy charged that, “with the purpose that the crime of murder be at 182, 186 (emphasis added). Here, however, the defendant’s i ndictment for arises once a future harm results from reckless behavior.” Donohue, 150 N.H. to commit a reckless assault, because, by definition, a reckless assault only conspiracy conviction for the reason that “a person cannot agree, in advance, “conspiracy to commit second - degree assault,” was flawed, and we reversed his we concluded that the defendant’s indictment, which charged him with conviction as a n accomplice to reckless second - degree murder. In Donohue, render his conviction for conspiracy to commit murder inconsistent with his Contrary to the defendant’s argument, our decision in Donohue does not

N.H. 59, 64 (2004). consider all of the evidence separately in each indictment. State v. King, 151 stolen property); see also Don o hue, 150 N.H. at p. 18 185. The jury was free to stolen property is a separate and distinct crime from the crime of receiving (2005); see Chaisson, 123 N.H. at 24 (explaining that conspiracy to receive committing it are two separate offenses.” State v. Sanchez, 152 N.H. 625, 630 conspiracy conviction because “c onspiring to commit a crime and actually 18

Rivera, 162 N.H. at p. 18 188 (explaining that “when causing a prohibited result is accomplice under RSA 626:8 than to convict a principal of the same crime. See mental state with respect to the result of the underlying crime to convict an reckless second - degree murder, the State does not need to prove a higher causing a prohibited result is an element of the underlying offense, as with 494 (quotation and emphasis om itted). Paragraph IV ensures that when conduct that constitutes the actus reus of the offense.” Anthony, 151 N.H. at proof of the accomplice’s intent to promote or facilitate another person’s ‘intent to p romote or facilitate the commission of the offense’ is that it requires another in its commission.” Id. “[T]he standard interpretation of the phrase commission of the offense and that he actually solicit or aid or attempt to aid requirements that the defendant act with the purpose of promoting the Anthony, 151 N.H. 492, 493 - 95 (2004). “[Paragraph] III contains dual IV of RSA 626:8. State v. Duran, 158 N.H. 146, 151 (2008); see State v. T he State must prove the elements of both paragraph III and paragraph

with the requirements o f paragraph III of the accomplice liability statute. improperly conflates the crime of criminal solicitation, see RSA 629:2 (2016), behavior cannot simultaneously demonstrate a reckless intent. The defendant rea in the criminal code,” and again asserts that evidence of purposeful 629:2] requires evidence that the defendant acted purposely, the highest m ens The defendant argues that “[p]roof of criminal solicitation [under RSA

value of human life”). recklessly under circumstances manifesting an extreme indiffer ence to the 630:1 - b, I(b) (defining second degree murder as “caus[ing] such death defendant’s accomplice charge was the second degr ee murder statute, RSA RSA 626:8. Here, the statute implicated by paragraph IV underlying the

the offense. negligently with respect to that result, as required for the commission of conduct and the accomplice acted purposely, knowingly, recklessly, or provided the result was a reasonably foreseeable consequence of the conduct can be found criminally liable for causing a prohibited result, act with a purpose to promote or facilitate the offense. An accomplice in liability under this section, it shall not be necessary that the accomplice commission of t he offense. In other words, to establish accomplice culpability, if any, with respect to that result that is sufficient for the accomplice in the commission of that offense, if he acts with the kind of offense, an accomplice in the conduct causing such result is an paragraph III(a), when causing a particular result is an element of an IV. Notwithstanding the requirement of a purpose as set forth in . . . . committing it; . . . agrees or attempts to aid such other person in planning or offense, h e solicits such other person in committing it, or aids or p. 19 19

time of the murder,” “had no ability to directly contro l or influence th[e] event,” was insufficient to support his conviction because he “was not present at the upon t h is interpretation of RSA 626:8, t he defendant argues that the evidence and performative gestures” only implicates paragraph III of the statute. Based most favorable to the State, his purposeful behavior in the form of “speech acts or even knowledge of the probable result,” and even when viewed in the light encompasses behavior that constitutes “direct conduct. . . without a purpose liability statute. He contends that the term “accomplice in conduct” only he was a n “accomplice in conduct” under paragraph IV of the accomplice The defendant also argues that there was insufficient evidence to show

to the value of human life.” RSA 630:1 - b, I(b). he acted “recklessly under circumstances manifesting an extreme indifference I(b) of the second degree murder statute, which requires the State to prove that Winward, 161 N.H. at 543. Here, the defendant was charged under paragraph N.H. at 495 (quotation omitted); see RSA 626:8, IV; Rivera, 162 N.H. at 187 - 88; specified in the underlying statute with respect to the result.” Anthony, 151 prove accomplice liability under RSA 626:8 as, “the culpable mental state synonymous”). Paragra ph IV sets forth the mens rea required for the State to (explaining that “the terms ‘criminal solicitation’ and ‘solicitation’ are not conduct constituting a crime.’” Laporte, 157 N.H. at 232 (quoting RSA 629:2, I) of ‘soliciting’ and the mens rea of having the ‘purpose that another engage in of criminal solicitation in RSA 629:2, which “encompass [ ] both the actus reu s (2008). The plain language of RSA 626:8, III does not incorporate the elements 626:8, III; see Petition of State of N.H. (State v. Laporte), 157 N.H. 229, 231 - 32 “solicits” in RSA 626:8, III refers solely to the actus reus of s oliciting. RSA Consistent with our interpretation of paragraph III in Anthony, the term

mental state for the offense. See State v. Winward, 161 N.H. 533, 543 (2011). the offense; and (3) under paragraph IV, the accomplice shared the requisite accomplice’s acts solicited, aided, or attempted to aid another in committing the accomplice had the purpose to make the crime succeed; (2) the 494 - 95. Thus, to establish accomplice liability, the State must prove that: (1) with respect to the actus reu s constituting the underlying offense. See id. at paragraph IV does not alter the requiremen ts or applicability of paragraph III (O fficial Draft and Revised Comments p. 19 1985)). Accordingly, the language of Anthony, 151 N.H. at 495 (quoting Model Penal Code § 2.06 cmt. 6(b), at 310 conduct that the. . . [underlying criminal statu te] has declared to be criminal. ’” that the accomplice “‘ have as his conscious objective the bringing about of paragraph IV to its current form, it did not intend to repeal the requirement In Anthony, w e stated that when the legislature amended the language of

151 N.H. at 49 4 - 9 5. a purpose to promote or facilitate the offense” (quotation omitted)); Anthony, paragraph III,” such that “it shall not be necessary that the accomplice act with an element of an offense, paragraph IV modifies the formulation stated in p. 20 20

from J.M.’s testimony were evidence of other acts governed by Rule 404(b) and counsel was knowing, intelligent, and voluntary; (2) the challenged statements In conclusion, we hold that: (1) the defendant’s waiver of his right to

second - degree murder. See RSA 626:8; RSA 630:1 - b, I(b). State met its burden to con vict the defendant as an accomplice to reckless conclude a rational jury could have found beyond a reasonable doubt that the drugs.” Viewing the evidence in the light most favorable to the State, we “had to have it done” because M.P. was going to inform on him “for some statement s to L.M. in prison that he, the defendant, “knew it was done” and evidence of the defendant’s own inculpatory statements, including his State v. Laudarowicz, 142 N.H. 1, 5 - 6 (1997). The State also presented for himself, and tried to cover up his involvement in the murder. See, e.g., provided costumes in an attempt to aid them in the murder, established alibis and Younge incentives to kill the victim, supplied the gun used in the murder, addition, the jury heard evide nce that the defendant offered Stillwell, Smith, had, on multiple occasions, urged Stillwell, Smith, and Younge to kill M.P. In that he wanted M.P. killed because of his suspected role as an informant, and believed his October p. 20 2015 arrest resulted from M.P. informing to the police, second - degree murder. The State presented evidence that the defendant defendant was guilty beyond a reasonable doubt as an accomplice to reckless There was ample evidence from which the jury could have found that the

conviction as an accomplice to reckless second - degree murder. We d isagree. argue that the evidence presented to the jury was insufficient to support his Independent of his legal arguments, we also understand the defendant to

consequence of the conduct.’” Rivera, 162 N.H. at 187 (quoting RSA 626:8, IV). can flow from conduct ‘provided the result was a reasonably foreseeable Rivera, 162 N.H. at 187. “Paragraph IV plainly states that accomplice liability accomplice’s condu ct directly caused the criminal result. See RSA 626:8, IV; murder). Moreover, the State is not required to prove that a n alleged supporting defendant’s conviction as an accomplice to reckless second - degree accomplice would hold the victim at gun point when describing evidence [the victim] if there was a stand - off” and the fact that “the men had agreed” an burglary,” “discuss[ing] the possibility that [another accomplice] would shoot IV)); see also Rivera, 162 N.H. at 187, 190 (including “planning an armed paragraph IV’s reference to an “‘ acc omplice in conduct ’” (quoting RSA 626:8, legislature’s intent to preserve the requirements of paragraph III “is implicit in an accomplice.” See Anthony, 151 N.H. at 494 - 95 (explaining that the paragraphs based on, as the defendant here argues, “[t] he means of acting as applicability of paragraph III, nor does it create a distinction between the The language of paragraph IV does not alter the requirements or

interpreting RSA 626:8 contradict s these arguments. and “played no role in the actual commission of the offense.” Our case law p. 21 21

HICKS, BASSETT, and DONOVAN, JJ., concurred.

murder. conspiracy to commit murder and as an accomplice to reckless second - degree (3) there was sufficient evidence to support the defendant ’s convictions for admitted in error, but this error was harmless beyond a reasonable doubt; and