2024 N.H. 31, State v. Heredia

brief and orally, for the defendant. Thomas Barnard, deputy chief appellate defender, of Concord, on the

for the State. general (Audriana Mekula, assistant attorney general, on the brief and orally), John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

Citation: State v. Heredia, 2024 N.H. 31 Case N o. 2021 - 0460 Hillsborough - northern judicial district

THE SUPREME COURT OF NEW HAMPSHIRE

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

them alcohol and engaged them in sexual activity. B was located the next day. and C went into the treatment facility and reported that two men had given Granite Pathways. A lthough B got back into the car and left with the men, A [¶5] Later that night, the defendant and Hugle dropped the girls off near

captured B approaching him with no clothing on. cellphone of himself digitally penetrating A and testified that the video also activity with either B or C. The defendant admitted to recording a video on his had sex with her, but the defendant testified that he did not engag e in sexual with A, and Hugle had sex with A, B, and C. B testified that the defendant also went to the complex’s clubhouse with the girls. Ther e, the defendant had sex bar. Hugl e and the defendant later returned to the apartment complex and complex where they sat outside drinking the beer while the men went out to a [¶4] Hugle and the defendant then dropped the girls off at an apartment

were not p. 2 21. were, the defendant, who testified in his own defense, admitted he knew they whether the girls told the defendant that they were older than they actually beers and gave them to the girls. Although the testimony differed as to at a convenience store, where the defendant purchased six “Natty Daddy” tall and the defendant said that he would buy them alcohol instead. They stopped had run away from “rehab.” They reiterated their plan to go to Market Basket, [¶3] Hugle picked up the defendant, and the girls again stated that they

give the girls a ride, but told them he needed to pick up a friend on the way. for a ride to Market Basket, where they hoped to steal alcohol. Hugle agreed to Matthew Hugle, that they had run away from their treatment center, and asked to be in his mid - twenties agreed. They told the man, later identified as began asking people to buy cigarettes for them. Eventually, a man who looked to obtain cigarettes and /or alcohol. They went to a convenience store and adolescents. That night, they ran away from Granite Pathways with the intent were residing at Granite Pathways, a substance abuse treatment facility for three female juveniles — A, B, and C — then aged 16, 15, and 15, respectively, [¶ p. 2 2] The jury could have found the following facts. On July 23, 2019,

contributing to the delinquency of a minor, and remand. double jeopardy grounds, reverse the three convictions for accomplice to ( p. 2 2016); RSA 629:2 (2016). We vacat e the witness tampering conviction on convicted. H e does not challenge that conviction on appeal. S ee RSA 641:6 commit falsif ying physical evidence, of which he was also charged and arguing that witness tampering constituted the same offense as solicitation to also challenges the witness tampering conviction on double jeopardy grounds, arguing that the evidence was insufficient to support those convictions. H e p. 3 3

witness tampering and solicitation to commit falsifying physical evidence with the defendant that his separate convictions and sentences for both CONST. amends. V, XIV. Because, for the reasons set forth below, we agree commit falsifying physical evidence. See N.H. CONST. pt. I, art. 16; U.S. separate convictions and sentences for witness tampering and solicitation to constitutional rights to be free from double jeopardy were violated by the convict him on the witness tampering charge, and that his state and federal witness tampering charge. He argues that there was insufficient evidence to [¶ 10] We turn first to the defendant’s challenge to his conviction on the

counts of accomplice to contributing to the delinquency of a minor. challenges his conviction for witness tampering and his convictions on three crime of solicitation to commit falsifying physical evidence. Rather, he [¶9] On appeal, t he defendant does not challenge his conviction for the

appeal followed. and one count of solicitation to commit falsifying physical evidence. This contribution to the delinquency of a minor, one count of witness tampering, convicted the defendant o n the three charges of accomplice to intentional remaining FSA charges involving B and the AFSA charge involving A. The jury the FSA charges involving B. T he jury acquitted the defendant on the [¶8] At trial, the court granted the defendant’s motion to dismiss one of

and solicitation to commit falsifying physical evidence. charged with additional counts of tampering with witnesses and informants, deleted.) Based on these communications from jail, t he defendant was then password to his Gmail. . . Google photos delete videos.” (Email address underlined words would reveal the following hidden message: “Max get the that underlining the letter’s misspelled words and then reading only the Hugle were also submitted at trial as full exhibits. The jury could have found and underline the misspelled words. Recordings of the d efendant ’ s calls to he was sending him a letter and that he wanted Hugle to proofread the letter misspelled words. The defendant then called Hugle from jail, told Hugle that defendant’s mother had Max’s number. The letter also contained a number of asked Hugle to call the defendant’s boss, Max, and told Hugle that the Hugle. In t he letter, which was introduced as a full exhibit, the defendant [¶7] While in jail prior to trial, the defendant wrote an encoded letter to

being an accomplice to contributing to the delinquency of a minor. identically except for the name and date of birth of the specified minor, with sexual acts with B. He was also charged, i n three criminal complaints worded resist, and five counts of felonious sexual assault (FSA) for various alleged engaging in sexual intercourse with A when she was physically helpless to charged with aggravated felonious sexual assault (AFSA) for knowingly [¶6] The defendant was charged with a number of offenses. He was p. 4 4

defined in RSA 6 p. 4 41:1, II, was pending, knowingly attempted to in that Chasrick Heredia, believing that an official investigation as did commit the crime of Tampering with Witnesses and Informants

that the defendant: RSA 6 p. 4 41:5 (2016). As charged in the indictment, the State had to prove

(b) Withhold any testimony, information, document or thing . . . .

. . .

induce or otherwise cause a person to: or investigation is pending or about to be instituted, he attempts to I. Believing that an official proceeding, as defined in RSA 6 p. 4 41:1, II,

A person is guilty of a class B felony if:

provides, in relevant part: [¶ 13] The offense of witness tampering is defined in RSA 6 p. 4 41:5, which

indictments.” Stat e v. Farr, 160 N.H. 803, 807 (2010) (quotation omitted). charged offenses in light of the actual allegations contained in the making this inquiry, we review and compare the statutory elements of the the crimes as charged will in actuality require a difference in evidence.” Id. “In (201 p. 4 4) (quotation omitted). “We focus upon whether proof of the elements of proof of an element that the other does not.” State v. Locke, 166 N.H. 344, 351 will be considered the same for double jeopardy purposes unless each requires “which we have referred to as the ‘ same evidence ’ test, provides: Two offenses [¶ 12] The test in double - description cases under the S tate C onstitution,

198, 200 (2001); see State v. Lucius, 1 p. 4 40 N.H. 60, 67 (1995). both offenses derive from the same criminal act.” State v. McKean, 147 N.H. conviction on “both a lesser - included offense and the greater offense [when] (quotation omitted)). One example of a double - description violation is separate offenses or are merely different descriptions of the same offense” ‘double - description’ cases, . . . the issue is whether two statutes describe two See State v. Lynch, 169 N.H. 689, 706 (2017) (explaining that in the “so - called The defendant ’s double jeopardy challenge raises a “double - description” issue. federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231 - 33 (1983). first address the defendant’s claim under the State Constitution and rely upon law, which we review de novo.” State v. Glenn, 167 N.H. 171, 178 (2014). We [¶ 11] “The issue of double jeopardy presents a question of constitutional

we need not address his sufficiency challenge. violate the prohibition against double jeopardy under the State Constitution, p. 5 5

the indictment and the statute is of any consequence, we take no further note of it. information from an official proceeding.” As neither party argues that the discrepancy between required the State to prove that the defendant attempted to induce or cause Hugle to withhold pending or about to be instituted.” The State argues that “[t]he witness tampering charge required the State to prove that Heredia believed that an official proceeding or investigation was contain s the missing statutory language. The defendant argues that “[b]oth indictments RSA 641:1, II, or investigation,” RSA 641: p. 5 5. B oth parties appear to assume that the indictment II” (bolding omitted) rather than the statutory language “an official proceeding, as defined in RSA 641:5. The indictment uses the language “official investigation as defined in RSA 641:1, We observe that the witness tampering indictment does not precisely track the language of 1

evidence [did] not also require.” In other words, he argues that, as charged in charge did “not require proof of any element that solicitation to falsify physical indictment constitutes witness tampering under the statute, proof of that witness tampering,” argues that if the conduct alleged in the witness tampering physical evidence requires proof of some elements that are not required by [¶ 1 p. 5 5] The defendant, although acknowledging “that solicitation to falsify

prosecution.” (Bolding omitted.) solicited Hugle to delete information relevant to a pending criminal constituting the crime of Falsifying Physical Evidence as defined in RSA 641:6, “with the purpose that another, sp ecifically Matthew Hugle, engage in conduct commit falsifying physical evidence, the State had to prove that the defendant, the indictment, in order to convict the defendant for the crime of solicitation to such other person to engage in such conduct.” RSA 629:2, I. As charged in engage in conduct constituting a crime, he commands, solicits or requests that “[a] person is guilty of criminal solicitation if, with a purpose that another RSA 641:6 (2016). The criminal solicitation statute provides, in relevant part,

. . impair its verity or availability in such proceeding or investigation. I. Alters, destroys, conceals or removes any thing with a purpose to

or about to be instituted, he: proceeding, as defined in RSA 641:1, II, or investigation is pending A person commits a class B felony if, believing that an official

which provides, in relevant part: [¶ 14] The offense of f alsifying physical evidence is defined in RSA 641:6,

(Bolding omitted.)

related to the official investigation. 1 or any electronic communication service, that constituted eviden ce requested that Hugle delete information from any electronic device withhold any information when he wrote Hugle a letter and induce or otherwise cause a person, specifically Matthew Hugle, to p. 6 6

p. 6 641:6. See RSA 629:2, I. engage in conduct constituting the crime of Falsifying of Physical Evidence as defined in RSA This allegation follows from the allegation that the defendant acted with the purpose that Hugle 2

letter and his plot to have Hugle log in to an email account and information from an official proceeding regarding his October 2019 defendant attempted to induce or cause Hugle to withhold [t]he witness tampering charge required the State to prove that the

conceal, or remove the video,” “required the State to prove that the defendant solicited Hugle to destroy, alter, differed because, although the solicitation to falsify physical evidence charge [¶ 18] The State also argues that the elements of the charged offenses

sustaining the first (witness tampering). See McGurk, 157 N.H. at 773. second indictment (solicitation to commit falsifying physical evidence) from also is required for each offens e do es not prevent proof of the facts charged in the established if a person acts purposely.”). Accordingly, th at a different mens rea p. 6 626:2, III (2016) (“When acting knowingly suffices, the element is also “purposely” automatically establishes the mens rea of “knowingly.” See RSA constitute “separate crimes.” We note, h owever, that proof of the mens rea of solicitation to commit falsifying physical evidence and witness tampering evidence and “knowingly” for witness tampering. It argues, therefore, that a different mens rea: “purposely” for solicitation to commit falsify ing physical [¶ 17] The State correctly points out that each of the two offenses requires

related to the official investigation.” (Bolding omitted.) device or any electronic communication service, that constituted evidence induce or otherwise cause Hugle to “delete information from any electronic investigation was pending or about to be instituted, knowingly attempted to believing that an official proceeding, as defined in RSA p. 6 641:1, II, or elements as charged in the witness tampering indictment: that the defendant, pending criminal prosecution. Such facts, if true, would also prove the instituted, purposely solicited Hugle to delete information relevant to a 2 defined in RSA 641:1, II, or investigation was pending or abo ut to be indictment include that the defendant, believing that an official proceeding, as omitted). The facts charged in the solicitation to falsify physical evidence sustained the first.” State v. McGurk, 157 N.H. 765, 773 (2008) (quotation “whether the facts charged in the second indictment would, if true, have considered the same under our state double jeopardy analysis, we ask [¶ 16] To determin e whether the two offenses charged in this case will be

the greater offense.” (quotation and brackets omitted)). We agree. 200 (“A lesser - included offense is one which must necessarily be included in solicitation to commit falsify ing physical evidence. See McKean, 14 p. 7 7 N.H. at this case, witness tampering constituted a lesser - included offense to 7

Racette, 1 p. 7 75 N.H. 132, 139 (2022), modified on other grounds by State v. error rule, we may consider errors not raised before the trial court.” State v. raises them under the plain error rule. See Sup. Ct. R. 16 - A. “Under the plain Acknowledging that his sufficiency challenges are not preserved for appeal, he argu es that the evidence was insufficient to prove those charges. three counts of accomplice to contributing to the delinquency of a minor. He [¶ 22] We next address t he defendant ’s challenge to his convictions on

constitutional rights were also violated.” Farr, 160 N.H. at 812. state constitutional rights were violated, we need not decide whether his federal RSA 6 51:2, II - g, as stated in Nickles. “Having concluded that the defendant ’ s See Heald v. Perrin, 123 N.H. 468, 4 p. 7 75 (1983), superseded on other grounds by defendant’s conviction and sentence for witness tampering must be vacated. State Constitution. See id.; Lucius, 140 N.H. at 66 - 68. Accordingly, the criminal act, the convictions on both charges violate double jeopardy under the indictment for witness tampering, and both charges derive from the same evidence indictment would, if true, also support a conviction under the [¶ 21] Because the facts charged in the solicitation to falsify physical

the video. derive from the same criminal act: the defendant requesting that Hugle delete constitute an offense.” Id. (quotation omitted). Here, both charges at issue act”). “A criminal act consists of the sum of discrete actions that together a lesser included and greater offense o nly if both derive from the same criminal to another, because “it violates double jeopardy to punish a defendant for both does not conclude upon finding one charged offense is a lesser - included offense criminal act. See Farr, 160 N.H. at 809 (noting that double jeopardy analysis physical evidence, we now address whether both offenses derive from the same witness tampering constituted a lesser - included offense to solicitation to falsify [¶ 20] Because we agree with the defendant that, as charged in this case,

indictment” in favor of “[a] fair reading of [it]”). Nickles, 144 N.H. 6 p. 7 73, 679 (2000) (“reject[ing] the defendant’s parsing of the associated “plot” — to be the “information” sought to be withheld. See State v. indictment would read the October 2019 letter — and the defendant’s information contained in the video. Only a strained interpretation of the deleting the video. As charged, the information sought to be withheld is th e which the defendant requested that Hugle “withhold any information” by [¶ 19] The indictment references the October 2019 letter as the means by

We disagree.

communication service. address, electronic device storing the video, or electronic delete a video or any other information relative to the video, email p. 8 8

although the evidence establish ed that he provided A, B, and C with beer, their him on the contribution to the delinquency of a minor charges because, [¶ 24] The defendant argues that the evidence was insufficient to convict

State v. Davies, 121 N.H. 366, 36 p. 8 8 (1981) (decided under prior law). contributes to the minor ’ s commission of an act” described in RSA 169 - B:2, IV. be convicted of contributing to the delinquency of a minor only if his conduct RSA 169 - B:2, IV (Supp. 2017) (amended 2021). “Consequently, a person may

consequence thereof. need of counseling, supervision, treatment, or rehabilitation as a violation of RSA 31 p. 8 8 - B:2 - c, II or III, and is expressly found to be in criminal code of this state if committed by an adult, or which is a 18 years which would be a felony or misdemeanor under the a person who has committed an offense before reaching the age of

part, to mean: RSA 169 - B: 41, I. RSA 169 - B:2, IV, in turn, defines “[d] elinquent,” in relevant

shall be guilty of a misdemeanor. produce, promote, or contribute to the delinquency of su ch minor, or abet, or connive at, or has knowingly or willfully done any act to minor, or anyone else, who shall knowingly encourage, aid, cause, Any parent or guardian or person having custody or control of a

forth in RSA 169 - B: 41, I, which provides, in relevant part: The elements of intentional contribution to the delinquency of a minor are set

contribute to the delinquency of [the specified minor]. . .. al cohol to [the specified minor], a minor, to produce, promote, or planning or committing it, specifically, he knowingly provided Delinquency, aided or agreed or attempted to aid Matthew Hugle in commission of the offense of Intentional Contribution to Chasrick Heredia, with the purpose of promoting or facilitating the

follows: identically except for the name and date of birth of the specified minor, as [¶ 23] The defendant was charged, in three criminal complaints worded

justice would otherwise result.” Id. at 140. however, and is limited to those circumstances in which a miscarriage of judicial proceedings.” Id. at 13 p. 9 9 - 40. “The plain error rule is used sparingly, error must seriously affect the fairness, integrity, or public reputation of the error must be plain; (3) the error must affect substantial rights; and (4) the Boudreau, 17 6 N.H. 1 (2023). “To find plain error: (1) there must be error; (2) 9

must prove e ach element beyond a reasonable doubt. Thus, the Th e definition of this crime has three parts or elements. The State

contribution to delinquency of a minor, the jury was instructed: was not instructed on it. On each charge of accomplice to intentional read to encompass the theory now articulated by the State, because the jury [¶ 26] We need not decid e, however, whether the indictments could be

co - conspirators, or solicitors.” could have been charged criminally with violating RSA 17 p. 9 9:5, either directly, as amo ng themselves. If any one of the girls were adults in that situation, they person”). Specifically, t he State argues that “the girls distributed the alcohol guilty of a misdemeanor if a natural person, or guilty of a felony if any other provisions of this title or any of the rules adopted pursuant to this title shall be (providing, in relevant part, that “[a] ny person who violates any of the const itu te a misdemeanor if she were an adult. See RSA 179:58, I (2022) appeal that each of the girls committed an act that, under RSA 179:5, would be a misdemeanor or felony if she were an adult. T he State now argues on discussed above, required proof that each minor committed an act that would charged the def endant with contributing to the minors’ delinquency, which, as not charge the defendant with violating RSA 179:5, I. Rather, the State own testimony, might have supported conviction for that offense, the State did introduced on the contribution to delinquency charges, and the defendant’s argue that the defendant himself violated this statute. A lthough the evidence to a person under the age of 21.” RSA 179:5, I (2022). T he State does not or allow or procure to be sold, delivered, or given away any liquor or beverage provides, in relevant part, that “[n] o. . . person, shall sell or give away or cause [¶ 25] The State counters that the operative statute is RSA 179:5, which

legislature to be a violation, not a felony or misdemeanor. Id. RSA 17 p. 9 9:10, I (2022). Thus, possession of alcohol by a minor is defined by the

min imum of $300. beverage, shall be guilty of a violation and shall be fined a beverage, or who is intoxicated by consumption of an alcoholic years who has in his or her possession any liquor or alcoholic Except as provided in RSA 17 p. 9 9:23, any person under the age of 21

relevant part: possession of alcohol by a minor is governed by RSA 17 p. 9 9: p. 10 10, which provides, in of marijuana and hashish, respectively). Rather, the defendant points out, RSA 169 - B:2, IV; see RSA 318 - B:2 - c, II, III (Supp. 2023) (relating to possession the criminal code of this state,” nor “a violation of RSA 318 - B:2 - c, II or III.” because the possession of alcohol is neither “a felony or misdemeanor under “possession and consumption of alcohol did not render them delinquent” 10

of judicial proceedings.” Racette, 175 N.H. at 141. Accordingly, the t rial court defendant’s conviction to stand would seriously affect the fairness and integrity convicted the defendant based upon insufficient evidence of guilt, allowing the charge.” State v. Guay, 162 N.H. 375, 384 (2011). “Finally, because the jury to dismiss the charge at the close of the evidence led to his conviction on the error affected the defendant’s substantial rights because the trial court’s failure 168 N.H. 269, 274 (2015); see RSA 169 - B: 41, I. We also “conclude that the promoted, or contributed to the delinquency of A, B, and C. State v. Houghton, prove an essential element of the crimes; namely, that the defendant produced, we conclude that the error was plain because the evidence was insufficient to delinquency of a minor charges. Turning to the remaining plain error factors, insufficient to convict the defendant on the accomplice to contributing to the [¶ 28] For the foregoing reasons, we conclude that the evidence was

RSA 169 - B:41, I, :2, IV. not constitute the offense of contribution to the delinquency of a minor. See misdemeanor as required by RSA 169 - B:2, IV, and, therefore, his conduct did out, possession of alcohol by a minor is a violation, not a felony or with alcohol, which she, in turn, possessed. However, a s the defendant points that the jury convicted the defendant on evidence that he provided each minor to at least one of the other minors. RSA 179:5, I. Accordingly, we conclude only if it found that the identified minor “delivered, or [gave] away” the alcohol that it could convict the defendant on each contribution to delinquency charge her; a reasonable jury would not have understood the instructions to mean contributed was each minor’s possession of the alcohol the defendant gave to instructions to mean that the “delinquency” to which the defendant allegedly [¶ 27] We conclude that a reasonable jury would have understood the

furnished by the defendant to another minor. only if it found that the minor identified in the i ndictment gave the alcohol particular, was not instructed that it could find contribution to delinquency The jury was not instructed, however, on the definition of delinquency and, in any act to produce, promote, or contribute to the delinquency of such minor.” contribution to delinquency when such person has knowingly or willfully done contribution to delinquency means a person commits the crime of intentional (Emphasis added.) The jury was further instructed that “[i]intentional

gave alcohol to [the identified minor]. promote or contribute to the delinquency of a minor, specifically he commission of the offense, and the Defendant did knowingly Defendant acted with the purpose of promoting or facilitating t he the offense of intentional contribution to delinquency, and the aid another, specifically Mathew Hugle, in planning or committing State must prove the Defendant aided or agreed or attempted to p. 11 11

in further review of the case. for oral argument but subsequently disqualified herself and did not participate DONOVAN and COUNTWAY, JJ., concurred; HANTZ MARCONI, J., sat

646, 655 (2008). resentencing consistent with this opinion and with State v. Abram, 156 N.H. contributing to the delinquency of a minor. We remand for consideration of jeopardy grounds and reverse the three convictions for accomplice to [¶ 29] Therefore, we vacate the witness tampering conviction on double

contributing to the delinquency of a minor charges. See id. committed plain error, and we reverse the defendant’s convictions on the