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State of New Hampshire v. Chasrick Heredia

August 21, 2023 - Brief

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Case records

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Docket: 2021-0460

Date	Record Text	Type	Party	PDF
June 13, 2024	State v. Heredia	Opinion	Supreme Court	Pre-Reporter
October 17, 2023	State of New Hampshire v. Chasrick Heredia	Oral argument text	State of New Hampshire; Chasrick Heredia
October 17, 2023	Oct 17 2023	Supreme Court oral argument calendar	-	PDF
August 21, 2023	State of New Hampshire v. Chasrick Heredia Current page	Brief	Chasrick Heredia	PDF
August 2, 2023	State of New Hampshire v. Chasrick Heredia	Brief	State of New Hampshire	PDF
May 4, 2023	State of New Hampshire v. Chasrick Heredia	Brief	Chasrick Heredia	PDF
December 31, 2021	2021 Fourth Quarterly Status Report	Supreme Court case status list	-	PDF

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

No. 2021-0460

State of New Hampshire

Chasrick Heredia

Appeal Pursuant to Rule 7 from Judgment of the

Hillsborough County Superior Court – Northern District

REPLY BRIEF FOR THE DEFENDANT

Thomas Barnard

Deputy Chief Appellate Defender

Appellate Defender Program

10 Ferry Street, Suite 202

Concord, NH 03301

NH Bar # 16414

603-224-1236

(15 minutes oral argument)

Page

Table of Authorities 3

Argument I. THE EVIDENCE WAS INSUFFICIENT TO PROVE THAT HEREDIA COMMITTED THE CRIME OF WITNESS TAMPERING 4

A. The witness-tampering charge was based on the letter, not the subsequent phone calls 7

B. Nothing Heredia said in the phone calls constituted witness tampering 10

III. THE EVIDENCE WAS INSUFFICIENT TO PROVE THAT HEREDIA COMMITTED THE CRIME OF CONTRIBUTING TO THE DELINQUENCY OF A MINOR 12

Conclusion 15

TABLE OF AUTHORITIES

Page

Cases State v. Kelly, 160 N.H. 190 (2010) 8, 9, 10

State v. Oakes, 161 N.H. 270 (2010) 8

Constitutional Provisions New Hampshire Constitution, Part I, Article 15 7

Statutes RSA 169-B:2 12, 14

RSA 179:5 12, 13, 14

RSA 318-B:2-c 12, 14

RSA 601:1 7

RSA 626:8 13

RSA 641:5 7, 11

RSA 651:2 7

Other Authorities Model Penal Code & Commentaries 13

I. THE EVIDENCE WAS INSUFFICIENT TO PROVE THAT

HEREDIA COMMITTED THE CRIME OF WITNESS

TAMPERING.

Chasrick Heredia was convicted of, among other things,

witness tampering and solicitation to falsify physical

evidence. A* 17–18. In his opening brief, Heredia conceded

that the evidence was sufficient to prove that he committed

solicitation to falsify physical evidence but argued that the

evidence was insufficient to prove that he committed witness

tampering. DB

19–25. He also argued, in the alternative, that

if the evidence was sufficient to prove that he committed

witness tampering, the court erred by imposing convictions

and sentences for both crimes because they were same

offense under the double-jeopardy clauses of State and

Federal Constitutions. DB 26–35.

A premise of these arguments was that both charges

were based on the same conduct: Heredia sending a coded

letter to Matthew Hugle instructing Hugle find and delete a

video. DB 20, 29–30. This premise was based on the

indictments. The witness-tampering indictment alleged that

Heredia committed that crime “when he wrote Hugle a letter

and requested that Hugle delete information from an[]

electronic device or... communication service.” A 17. The

solicitation-to-falsify-physical-evidence indictment alleged

that Heredia committed that crime when he “solicited Hugle

to delete information relevant to pending criminal

prosecution.” A 18.

This premise was reinforced by the trial transcript. The

State, at trial, never suggested that the witness-tampering

and solicitation-to-falsify charges were based on different

acts. In its objection to Heredia’s motion to dismiss, for

instance, the State referred to the charges as “the two

falsifying charges.” T5 1029.

On appeal, the State does not argue that the evidence

was sufficient to prove that Heredia committed witness

tampering by sending Hugle the letter requesting that he find

and delete the video. Rather, it argues, for the first time, that

Heredia committed witness tampering later, during multiple

phone calls with Hugle. SB 32–33.

The State also argues, for the first time, that the crimes

involved different conduct. While the solicitation-to-falsify

charge was based on Heredia’s request that Hugle delete “the

video, ” SB 28, the witness-tampering charge, according to the

State, was based on Heredia’s “attempt[] to induce or cause

Hugle to withhold information regarding the video, including

the letter, the coded message in the letter, the location of the

video, and the video’s destruction.” SB 33. The State does

not, however, cite any particular call or statement

constituting such an attempt. Rather, it argues that, in a

much more general sense, Heredia committed witness

tampering because “[t]hese calls served as a reminder to

Hugle that he and [Heredia] were longtime friends, that

[Heredia] was incarcerated, and that [Heredia] was facing an

imminent criminal proceeding.” SB 32.

Based on its new argument that the crimes were

committed at different times and involved different conduct,

the State faults Heredia for not moving to transfer the

recordings of the phone calls prior to filing his opening brief.

SB 32. Because the calls were not transferred, it asserts,

“this Court must assume that the jury could have concluded

from these calls” that Heredia, at some unspecified point and

in some unspecified manner, committed witness tampering.

SB 32–33. The State notes that its appellate counsel listened

to the calls and asserts — again without identifying any

particular call or statement — that “[t]he calls support [its]

argument that the jury could have inferred from all the

evidence admitted at trial that [Heredia] attempted to induce

or cause Hugle to withhold any information about the letter or

the video, including [Heredia’s] instructions to Hugle

contained in the letter regarding the video’s destruction.”

SB 33 n.2.

This Court could reject the State’s new argument for two reasons. First, the State charged Heredia with witness tampering for sending the coded letter to Hugle, not for anything he said during subsequent phone calls. Second, even if the witness-tampering charge was based on subsequent phone calls, nothing Heredia said in those calls constituted witness tampering. To enable this Court to address the latter argument, Heredia is filing, concurrently with this reply brief, an assented-to motion to transfer the recordings of the calls directly to this Court. A. The witness-tampering charge was based on the letter, not the subsequent phone calls. Part I, Article 15 of the New Hampshire Constitution provides, “No subject shall be held to answer for any crime, or offense, until the same is fully and plainly, substantially and formally, described to him.” RSA 601:1 provides, “No person shall be tried for any offense, the punishment of which may be death or imprisonment for more than one year, unless upon an indictment found against such person by the grand jury of the county or judicial district thereof in which the offense is committed or is triable.” Witness tampering carries a potential punishment of more than one year. RSA 641: 5

(defining witness tampering as “a class B felony”); RSA 651: 2

(authorizing imprisonment for up to seven years for a class B

felony). “A defendant has a right to rely upon the information

contained in an indictment in preparing his defense, and a

court cannot permit a defendant to be tried on charges that

are not made in the indictment against him.” State v. Oakes,

161 N.H. 270, 278 (2010) (quotation marks omitted).

The indictment here alleged that Heredia committed

witness tampering “when he wrote Hugle a letter.” A 17. It

did not allege that Heredia committed witness tampering

during subsequent phone calls. A 17. The indictment alleged

that Heredia committed witness tampering by “request[ing]

that Hugle delete information from any electronic device

or... communication service.” A 17. It did not allege that

Heredia committed witness tampering by “attempt[ing] to

induce or cause Hugle to withhold information regarding the

video, including the letter, the coded message in the letter,

the location of the video, and the video’s destruction.” SB 33.

State v. Kelly, 160 N.H. 190 (2010), is analogous. There,

the complaint alleged that the defendant violated a protective

order by driving within 100 yards of his ex-girlfriend’s house.

Id. at 193. The protective order prohibited the defendant from

going within 100 yards of his ex-girlfriend, or entering her

house or its curtilage, except with a police escort to retrieve

specified items from the house. Id. at 196. The evidence

showed that the defendant drove to his ex-girlfriend’s house

with a police escort and parked on the road while the officer

approached the house and spoke to his ex-girlfriend. Id.

at 193. The defendant’s ex-girlfriend claimed that she twice

saw him drive past her house earlier that day, without a

police escort, although he disputed that claim. Id. When the

officer returned and told the defendant that he could not

retrieve his belongings that day, the defendant turned around

in his ex-girlfriend’s driveway and drove away. Id.

The jury asked whether the defendant was charged with

driving by his ex-girlfriend’s house prior to the police escort or

turning around in her driveway during the police escort. Id.

at 195. The court responded, without objection, “You may

consider all of the evidence that was admitted at trial in

deciding whether the State has proven the elements of the

crime beyond a reasonable doubt.” Id. (brackets omitted).

The jury then found the defendant guilty. Id. at 194.

On appeal, this Court held that the complaint referred

only to the allegation that the defendant drove past his ex-

girlfriend’s house prior to the police escort. Id. at 196. The

court’s answer to the question, this Court held, “effectively

expanded the scope of the charge to include the police escort

and the defendant’s turning around in the driveway.” Id.

Because “the defendant relied upon the complaint and

protective order to not include the act of driving by [his ex-

girlfriend’s] house with a police escort, ” this Court held, the

court’s answer “impermissibly amended the complaint.” Id.

at 198. This Court reversed the conviction, finding plain

error, because “allow[ing] the defendant’s conviction to stand

would seriously affect the fairness and integrity of judicial

proceedings.” Id.

Just as the charge in Kelly referred only to driving by

the house without a police escort, and not turning around in

the driveway during the escort, the indictment here referred

only to the letter, and not to the subsequent phone calls.

B. Nothing Heredia said in the phone calls

constituted witness tampering.

As charged here, the witness-tampering indictment

required the State to prove that Heredia, “attempt[ed] to

induce or otherwise cause” Hugle to “[w]ithhold...

information, ” while “[b]elieving that an official proceeding...

or investigation is pending or about to be instituted.” A 17.

State’s Exhibit 25 contains ten recorded telephone calls

between Heredia and Hugle. SE25. In these calls, Hugle did

most of the talking, repeatedly expressing optimism regarding

the pending sexual assault charges, particularly because

G.W., A.R. and S.W. were so sexually aggressive. See, e.g.,

SE25 4 (“If anything, we got raped.”). In the earlier calls,

Heredia told Hugle that he sent him a letter and repeatedly

asked him if he received the letter. See SE25 2–6. In the later

calls, when Hugle told Heredia that he still had not received

the letter, Heredia expressed concern that the police had

intercepted the letter and would find the video. See SE25 7,

At no point in these phone calls did Heredia attempt to

induce or otherwise cause Hugle to withhold any information.

Thus, the calls do not “support the State’s argument that the

jury could have inferred from all the evidence admitted at trial

that [Heredia] attempted to induce or cause Hugle to withhold

any information about the letter or the video, including

[Heredia’ instructions to Hugle contained in the letter

regarding the video’s destruction.” SB 33 n.2.

Even if Heredia had, during the earlier phone calls,

attempted to induce Hugle to withhold information about the

letter, that would not have supported a conviction for witness

tampering. Witness tampering requires that the defendant

“[b]eliev[e] that an official proceeding... or investigation is

pending or about to be instituted.” RSA 641:5, I. During the

earlier phone calls, Heredia did not believe that any

investigation into his letter was pending or about to be

instituted. As time passed and Hugle still had not received

the letter, Heredia came to suspect that the police had

intercepted it. But there is no evidence that, after that point,

he attempted to induce Hugle to withhold any information

about it.

III. THE EVIDENCE WAS INSUFFICIENT TO PROVE THAT HEREDIA COMMITTED THE CRIME OF CONTRIBUTING TO THE DELINQUENCY OF A MINOR. Heredia was also convicted of three counts of contributing to the delinquency of a minor “by provid[ing] alcohol to” G.W., A.R., and S.W. A 5–7. RSA 169-B:2, IV defines “delinquent” as: a person who has committed an offense before reaching the age of 18

years which would be a felony or

misdemeanor under the criminal code

of this state if committed by an adult,

or which is a violation of RSA 318-B:2-

c, II or III, and is expressly found to be

in need of counseling, supervision,

treatment, or rehabilitation as a

consequence thereof.

In his opening brief, Heredia argued that the evidence

was insufficient to prove that he contributed to G.W., A.R., or

S.W.’s delinquencies because the possession and

consumption of alcohol did not render G.W., A.R., or S.W.

delinquent. DB 36–40. He noted that the State chose not to

charge him with violating RSA 179:5, which prohibits any

person from providing alcohol to another person under the

age of 21. DB 36.

On appeal, the State argues that the evidence was

sufficient to prove that Heredia contributed to G.W., A.R., and

S.W.’s delinquencies because it proved that G.W., A.R. and

S.W. “violated RSA 179:5 in soliciting, aiding, or agreeing to

attempting to aid in purchasing alcohol to provide to

individuals under twenty-one years of age, ” namely,

themselves. SB 34–35. In short, the State argues that

Heredia “produce[d], promote[d] or contribute[d]” to G.W.,

A.R., and S.W.’s delinquencies because G.W., A.R. and S.W.

solicited, conspired with, or aided Heredia in providing

alcohol to themselves.

This Court should reject the State’s convoluted theory of

criminal liability, for two reasons. First, a person cannot be

guilty of a crime under an accomplice, solicitation, or

conspiracy theory of liability if “[t]he offense is so defined that

his conduct is inevitably incident to its commission.”

RSA 626:8, VI(b) (accomplice liability); accord Model Penal

Code & Commentaries §2.06(6)(b), at 296 (1985) (accomplice

liability); id. §5.04(2), at 476 (extending principle to

solicitation and conspiracy liability). Just as a typical drug

buyer cannot be guilty of accomplice to, solicitation of, or

conspiracy in the sale of a controlled drug to himself, G.W.,

A.R., and S.W. could not be guilty of accomplice to,

solicitation of, or conspiracy in the provision of alcohol to

themselves, in violation of RSA 179:5.

Second, even if G.W., A.R., and S.W. could be guilty of

accomplice to, solicitation of, or conspiracy in the provision of

alcohol to themselves, in violation of RSA 179:5, the evidence

would still be insufficient to prove their delinquencies.

RSA 169-B:2, IV defines “delinquent” as a minor who has

committed an offense “which would be a felony or

misdemeanor under the criminal code of this state if

committed by an adult, or which is a violation of

RSA 318-B:2-c, II or III.” RSA 179:5 is not part of the

“Criminal Code, ” which is set forth in Title 52 of the Revised

Statutes Annotated. Rather, it is part of Title 13, governing

“Alcoholic Beverages.”

CONCLUSION

WHEREFORE, Chasrick Heredia respectfully requests that this Court reverse.

Undersigned counsel requests 15 minutes oral argument.

This brief complies with the applicable word limitation and contains 2, 317 words.

Respectfully submitted,

By /s/ Thomas Barnard

Thomas Barnard, #16414

Deputy Chief Appellate Defender

Appellate Defender Program

10 Ferry Street, Suite 202

Concord, NH 03301

CERTIFICATE OF SERVICE

I hereby certify that a copy of this brief is being timely provided to Audriana Mekula, Assistant Attorney General, through the electronic filing system’s electronic service.

/s/ Thomas Barnard

Thomas Barnard

DATED: August 21, 2023

Footnotes

*
Citations to the record are as follows: “A” refers to the appendix to Heredia’s opening brief; “DB” refers to Heredia’s opening brief; “SB” refers to the State’s brief; “SE25 1, ” SE25 2, ” etc., refer, by call number, to the recorded telephones calls contained on State’s Exhibit 25, to be transferred directly to this Court; and “T1, ” T2, ” etc., refer, by volume number, to the transcript of trial on June 2–14, 2021.

Case records

TABLE OF CONTENTS

TABLE OF AUTHORITIES

CONCLUSION

CERTIFICATE OF SERVICE

Footnotes