State of New Hampshire v. Chasrick Heredia

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minute for rebuttal, is that right? That's Correct. Thank you, your Honor. Please proceed. Thank You. May it please the court.

My name is Thomas Barnard. I represent Chas Rick Reia. Um, I plan to make four points this morning. First, Heredia did not commit witness tampering by sending the letter. Second, the indictment did not allege that Heredia committed witness tampering in subsequent phone calls. Third, even if it did, Heredia did not commit witness tampering in those calls. And finally, the evidence was insufficient to support the contribution to delinquency purpose. By sending the letter. Heredia certainly committed solicitation to falsify physical evidence, prove witness tampering. However, the state had to prove that Heredia attempted to cause Hugo to withhold the video to withhold something. One must possess it. And here it's clear that Reio, when he sent the letter, did not believe that Hugo possessed the video. Thus, as a matter of law, the letter could not constitute an attempt to cause Hugo to withhold the video. Now, the state argues on appeal that Heredia committed witness tampering not by sending the letter, but in subsequent phone calls, a defendant is entitled to be tried on the crime charge, not some other crime here. The indictment explicitly alleged that Heredia committed witness tampering on October 24th by writing QA letter requesting that he delete the video. The indictment did not allege that REIA committed witness tampering on some later did by requesting that CUO withhold information about the video or about the letter. Even if the indictment had made that allegation, there was no evidence that REIA requested that Hugo withhold information about the video or about the letter. Out of all of the recorded phone calls, which this court now has, the state does not cite any specific call or any specific statement, which it claims constitutes witness tamper. What about the letter? I'm sorry. Uh, But the, the letter, the charges is that it was, uh, requested in the letter, right? Right. The indictment alleged that send by sending the letter her already a committed witness number. Right. Um, but as a matter of law, ready, it could not have committed witness tampering when he sent the letter. Um, because a witness tampering requires an attempt to cause someone else to withhold some, um, and it's clear here, it's undisputed that when REIA sent the letter to Hugo reia did not believe that Hugo possessed the video. And in fact, hug did not possess the, so It can't apply if you're asking someone to cause someone else to withhold Something, it, it can apply. Certainly, certainly witness hamper constant applies if, if an individual asks someone else who possesses an object to withhold that object. Um, but it doesn't apply here because when Heredia sent the letter to Hugo, Hugo did not possess the video. And Heredia knew that Hugo did not possess possessed, But Max allegedly possessed the video. And so the idea was to have Hugo cause Max to withhold the Video. No, no. It was not the, the letter did not instruct Hule to tell Max to delete the video. The letter instructed Hule to, um, Get the password and delete the video To get the password and delete the video. Yes. So it was not, it was not, and it Max was not involved in this. Right. Um, in the request. And so Hugo intervening to cause Max's possession of the video to disappear isn't withholding. That's the argument. It's, it's not withholding because Hule Hule doesn't have the power to withhold the video. 'cause Hule doesn't possess the video. He's destroying the video, essentially. Yes, He's destroying the video. And it's for that reason that, um, that we conceived that the evidence was certainly sufficient to show FALs, uh, solicitation to falsify physical evidence. Um, I would argue it's not clear here that that, that even max possessed the video, the video was on Google servers. Essentially what Hule or what REIA asked Hule to do was to send a command to Google to delete video. So why is it plain error? Well, it's plain error because the evidence was legally insufficient to support the conviction. Um, and this court has routinely held that if the evidence is legally insufficient to support the, the conviction, then that constitutes a plain error. Um, I certainly agree if the trial court is making an evidentiary ruling or a ruling on join or severance jury instructions, something like that, um, then, um, it makes sense to apply the, the plain error standard stringent. Um, but the, the concept that a conviction should not be entered on the basis of insufficient evidence is fundamental. Um, so it's certainly reasonable to expect trial courts to refrain from injuring convictions on the basis of insufficient evidence, even if that specific insufficiency argument is not expressly addressed to the trial. Do you recall how the Trial court instructed the jury on the witness tampering Charge? Um, it basically read the indictment. Yeah. Um, so they, They had to prove that the witness tampering occurred by virtue of the letter as instructed to the jury. I don't know if it, uh, the instruction repeated all of the elements in the indictment. So repeated withhold, um, I don't know. I don't believe that the instruction also included the factual allegations of the indictment. Um, But if the state's relying on the phone calls, the defense was not given advance notice of that particular theory? No, no, not at all. You read the indictment. The indictment says, reia a committed witness tampering by sending the letter, by requesting that he will delete the video on October 24th. 'cause absolutely nothing in the indictment that would've given the defense notice that the state was relying on some subsequent vote. So if during one of those conversations, the defendant had advised, uh, his friend to, uh, if he get the letter, destroy it as quickly as possible, that'd be a different, that'd be a different claim. Destroy upon reading. Yeah. That, that sort of thing. Um, It would, it would certainly constitute, um, solicitation to falsify physical evidence. I still don't think it would constitute witness ing, because there's not a separate request to withhold court. There's a single request to take a single action and not to destroy the letter. Um, so I still think in that circumstance, uh, the state would've a stronger argument, but it still would not constitute witness to further to, to get a conviction for both you solicitation to falsify physical evidence and witness tampering. The state would essentially have to show two requests, a request to withhold, and then perhaps later request to destroy or request to destroy. That's refused. And then a request, well, if you're not gonna destroy it, at least don't give it to the police. Something Like that. Turning to the contribution to, uh, delinquency charges, um, again, I would make the point that a defendant is entitled to be charged, uh, to be tried on the crime charge here. Each complaint alleged that Heredia contributed to one person's delinquency simply by providing alcohol to that person. Because The receipt or possession of alcohol is not a felony or a misdemeanor under the criminal code, the evidence was insufficient as a matter of law to prove the contribution to delinquency charges And to the extent the, uh, complaints can be read to allege that your, your client, um, facilitated this particular crime with the individual victims here, the, the minors. That's not, that's not how the, the charges were, were charged. That's not how the charges were charged? No. The each, each, uh, indictment, it's a little, or complaint, it's a little complicated because the complaints charged REIA is acting, uh, as an accomplice to Hugo. But the evidence was that, um, Heredia provided the alcohol directly to each of the, the three individuals. Um, and each indictment named just one individual, um, the indictments. There is no basis for her heredia to infer from the indictments that the, in that that heredia, uh, facilitated the sharing or the transfer between these three individuals, um, of the alcohol that just wasn't, there was just no hint of that in the indictments. And are you still pressing a double jeopardy claim? Um, I, I hadn't planned to, but I'm happy to address the, the court's questions on that. Essentially, my double jeopardy argument is an alternative argument. If the court finds that the evidence was sufficient to prove witness tampering, then the court needs to conduct this double jeopardy analysis. And, um, if Tia's request to hugele to destroy the video could've inherently or impliedly, um, what also constituted, uh, a request to withhold the video, then the two charges are the same for double jeopardy purposes. Under that statutory construction, any request to destroy the video would necessarily also constitute a request to withhold the video. Um, and if the defendant can't commit one crime without also committing another crime, then by definition, those crimes are the same offense for double jeopardy. Multiple convictions of multiple punishments are precluded if the court has no further questions. Thank you. Thank you. You still have one minute Counsel. Good morning. Your honors, and may it please the court, Adrian Adriano Mula for the State of New Hampshire. I wanna start by pointing out that the state did not charge the defendant with witness tampering for destroying the video or withholding the video. Both the indictment and the instructions to the jury read that the state must prove that the defendant caused a person, specifically Matthew Huble, to withhold information when he wrote Hugo the letter about destroying the video. And it's that information piece that the state charged the defendant with. What is the information? So The information would be any information, so any facts or any knowledge about the video, including its existence, how it was created on the night of the charged acts, and then any information relative to its deletion or destruction or alteration all. And the point of the witness tampering was to, uh, criminalize his, the defendant's behavior for telling Hugo not to tell anybody about that video, not to tell the police about the video, not to come to trial and testify about the video, to withhold any information, any, were all those instructions Contained in the letter? No, they were not. But that's why the jail calls helped the jury infer what the defendant's intent was behind withholding information. Well, the indict reads, We restricted to the contents of the letter as charged. We are not restricted to the, just the contents of the letter because the jail calls speak to the defendant's intent. And the state had to prove that the defendant's intent in this case was that he attempt to induce Fugal to withhold that information. And the jail calls speak directly to that, uh, knowingly menz rea Well, the indictment reads that hug will delete information from any electronic device or any electronic communication services. So that sort of limits what the State's alleg alleging with respect to the witness tampering charge. Does it not? It does not. Because the first part of that sentence says to withhold any information when he wrote the letter and requested that he will delete information, it's the withholding information upfront that the state is charging the defendant within this witness tampering charge. It's the information which would include any information about the video, its creation and its destruction. The state does point the jury to the letter because that's where the instructions are about deleting the video. But if you also take into account the jail calls to determine the defendant's intent, the jail calls combined with the letter say to the jury, the intention of the letter and the intention of these jail calls. And the intention of the destruction of the video is to avoid Hugo from telling anybody about the video. And the defendant needed to commit this witness tampering because it wasn't enough for Hugo to just destroy the video, obviously the video, But wouldn't have known about the video till the defendant told him. Hugo did know about the video. So in his interview with police, uh, close in time to the, um, charged acts, he told police he saw on the defendant's phone a light on indicating a recording was happening. And in some of the jail calls prior to the letter being sent, Hugo does talk about there being a light on and tells the defendant that some of the girls notice that there was a video being made. So Hule knew about The video, but Hugo already told the police about Hugo the potential for the video. Hugo did not tell the police about the video. He said there was a light on, Right. But he didn't know what was in the video because he didn't see it being recorded. He just saw the light on And, but he at least relayed that to the sure investigator. Right? Right. And at the time he was being interviewed by police, according to Hugo anyway, he didn't believe these children were children. And so the, that video is only a crime because it's recording children engaging in the sexual act. So at the time, Hugo was putting forth this idea that these were adults, not children. So he would have no reason to tell the police this was C-S-A-I-A video of CSAI on his phone. But he knows now that the, the people in that video are children. And so when the defendant tells him, get rid of this video, and then talks about in the jail calls, the video being, or the letter about the video being Skittles or a problem, as the defendant said, all of that information signals to Hugo. Don't tell the police about the video, don't tell the police what's in the video because they do talk about what's in the video. And Hugo does eventually at some point, know what sex act the defendant performed on GW in the video. And so it's not enough for the defendant to just have hule destroy the video. He also has to have Hugo not tell anybody about the video, and it can expand beyond just the police investigation because an official, um, investigation based on the definition of official investigation in the statute can include a trial. So it's also not enough that hug will not just tell the police about the video. He also needs hug gold not to come to trial and testify about the video to the jury. So reading the jail calls in the state is not saying the witness tampering is just based on the jail calls or just based on the letter. Well, Hugo's a co-defendant at this point, right? He is, Yes. So why would, why would the defendant be concerned about Mr. Hugo testifying? Because the co-defendant in this case, witnessed the defendant committing crimes essentially While he was also committing a crime, right? So there'd be a Fifth Amendment issue there, I assume. Right? And I don't believe that the jury received any of this information, so I did not include it in my brief considering we were talking about sufficiency of the evidence. But the defen, the co-defendant was given immunity and refused to testify still even with the immunity. So the state did not call him to testify. So to your concern, maybe he still would've, maybe if the state had called him, he may have still pled the fifth, or maybe he would've testified truthfully or maybe he would've testified inconsistently. Unfortunately, the jury did not receive any of that information. What the jury knew essentially was that Hugo did not testify at all, and they did not know why. Um, But what's your response to Mr. Barnard's argument about tampering requires withholding and withholding requires possession. So in New Hampshire, we do have the concept of constructive possession to start with. So you don't, in any possession crime, you don't need to already possess the item to commit that crime. You can be charged with possession of a controlled drug, for example, if you have the ability to control what happens with that item under the theory of constructive possession. However, witness tampering itself is not a possession based crime. He will do not need to possess the video to withhold information about the video he knows about the video. If anything, he possesses knowledge of the video and the defendant is asking him to withhold that knowledge of the video from police and from any other investigative unit or any Of the, so the, the defendant's, uh, state of mind or state of knowledge as to the existence or location of the video is irrelevant. It's not irrelevant. The defendant knows the video exists. The defendant knows that it's on Max Bamboo's Gmail account for whatever reason. I guess that's the Gmail account he had on his phone when he made the video. Um, it's relevant to show that he is able to give huble the ability to go destroy the video, certainly for the falsifying. But in terms of the witness tampering, the withholding information that he's asking huble to do is also to withhold the information about how he's asked hug to go delete the video. And so I guess it's relevant to show that the video does in fact exist or at least that the defendant believes it exists on this Gmail account. But it's not relevant to whether Hugo possessed the video, because Hugo not need to possess the video to withhold information about it. Well, I mean, isn't it your theory that by virtue of writing the letter, the defendant informed hug Hugo of the existence of the video and your theory is the letter, the letter requested that he withhold any knowledge of the video, including the video itself? So that's, that's the base to make it as simple as possible. Defendant informs his co-defendant, there's a video out there, go, go destroy it. And by the way, withhold any information about that, right? That that's where you read the letter. I think reading the letter along with the jail calls, that is the inference that can be drawn regarding the witness tampering charge. Yes, I I know that the indictment says withhold information when he wrote Hugo a letter and requested that hug will delete information, but the jail calls are relevant to this charge because they informed the jury about the mental state and the intention of the defendant because the state also had to prove in the witness tampering that the defendant attempted to induce or otherwise caused hug to withhold the information. So, and again, I I acknowledge it in the letter. There's not an explicit sentence that says Do not tell the police about the video. I understand that. But that's why the jail calls are important to help the jury infer that that is the purpose and that is the intention of the defendant. And we know that from the jail calls because when they're talking about the letter, the defendant keeps asking, did you get the letter? Did you get the letter? And you pointed out, justice Donovan, one of the jail calls says, when you get the letter, get rid of it. All of that is threat information regarding his intention about Hugo withholding information. There's also a back and forth at one point in one of the jail calls where Hugo says, I don't understand why you're so worried about the letter. Like it's not a big deal. And the defendant says, the letter is Skittles, the letter is Skittles. And Skittles to the defendant is a childhood phrase. They used to describe something that's a problem or something to be on the lookout. And Hugo says to him, well, if you didn't admit to anything on the video, it doesn't matter. You know, if you sold a million dollars and they don't have the money, they can't prove you sold a million dollars. And the defendant again responds the letter is the million dollars. So in his mind, the letter which has information about the video and how to access the video to the police is Skittles is a problem. Well, why isn't there double jeopardy? Skittles, There's no double jeopardy skittle in this case because these are two separate crimes. So witness tampering is about withholding testimonial evidence or pre preventing somebody from going to court or going to the police and telling information that they have and falsifying physical evidence in any form. Solicitation attempt, whatev what have you, is about destroying physical objective evidence. And so in this case, but you're Talking about withholding testimony In the witness tampering Also in the That's true. So the, in the other one you're talking About the letter, but also the jailhouse calls indicate that he wanted him to not talk about it. So we're sort of overlapping here It is of, I will say there is some overlap, but that's because it, these charges arise out of the same criminal episode. So there will be some overlap in evidence, but the solicitation of falsifying physical evidence charges the defendant with, um, soliciting the co-defendant Matt hug. Right? So we're back to just the letter, not the jailhouse calls, So Not the information overlay, But the solicitation is specifically about destroying altering cons, altering, concealing the video, which is physical evidence. And this court held in Ramsey that two cases for double jeopardy purposes can be two separate crimes if they have different mens reyes and different consequences. And this court got to that conclusion in Ramsey by, um, talking about it's holding in young, which are called problematic. And it called young problematic because in young this court said that, uh, an attempted murder charge subsumed a first degree assault charge in young. And then in Ramsey, this court held that was wrong because those two charges first degree assault and attempted murder had different mens reas and different consequences. And in this case, we have different mens reyes and different consequences. The witness tampering has a knowing mens raya and the falsifying physical evidence has a purposeful mens rea. And both of these have different consequences. The witness tampering consequences preventing the, or preventing Hugo from telling anybody any information about the video. And the falsifying physical evidence has a different consequence of destruction of the video or at least soliciting Hugo to destroy the video. Those are two separate pieces of evidence that would be destroyed. And the legislature has separated those out as separate crimes because we don't want people to destroy physical evidence, and we don't want people to prevent individuals from providing information that they have about crimes. And so I respond to, um, Mr. Barnard's argument regarding the, um, crime of, um, delinquency of a minor, if is it a crime for a minor to possess alcohol? It is a crime for a minor to possess alcohol. But what I'm alleging here is that the crime was actually the passing of the alcohol amongst the children. So it's not that g it's the crime that delinquent charge these girls have committed is when they received the alcohol from the defendant in which the defendant said, drink up, it's your last night out, or something to that effect. Each girl then sips from the alcohol, that's not the crime, but then passes it to the girl next to her to sit from that. So RSA 1 79 5, not 10. Correct. So 1 79 5 is about distributing or providing alcohol to a minor. So each time those girls pass that hand back and forth amongst themselves, they're committing 1 79 0.5. That's the delinquent act. And I know the defense argues in his, his reply brief that that charge is not in the criminal code. But that would be an absurd result if this court were to hold that 1 79, 5 is not in the criminal code. 1 79 5 is a misdemeanor, and 6 25 9 defines all felonies and misdemeanors as crimes. And under that logic, any crime committed under three 18 B by a juvenile would not be able to have a juvenile delinquency petition filed against them. And I cannot imagine that the legislature intended for a child. Well, There's a difference between a delinquency petition and a crime as outlined here. That's true, but I, but three 18 is also not part of the criminal code technically, but I cannot imagine that the legislature intended no juvenile petition to be filed against a 16-year-old Juvenile petitions dealing drug juvenile Petitions get filed for delinquent behaviors. That's true. That aren't all, there's a whole different purpose to the juvenile delinquency statute. I I agree totally. Which is why I think this charge under 1 79. So 1 79 5 can be a delinquent act unlike the defendant argues in his reply brief, But isn't a minor in possession of alcohol. Isn't that a violation level offense If they're holding it themselves? Correct. But the second they distribute it to a minor that's a misdemeanor under 1 79 5 That that's not the way the the, um, the charges are read to me, it means he's alleged to have aided and agreed or attempted to aid Hugo in planning or committing yet specifically he provided alcohol to the girls. But he's not solicit, he's not agreeing or attempting to, to agree to aid the girls to commit this offense. That's not the way the, um, the charges be, do they? It is because he is an accomplice, uh, with Hugo in effectuating the goal of providing alcohol to the minors so that they can then pass the alcohol amongst themselves and get more and more drunk as they drink the beer. It is part of the charge, But there's no intent requirement that he intended to assist them in passing it around. But the intention here is that he, uh, contributed to their choice to be a delinquent juvenile essentially. And he, he, he did complete that intention. They did certainly pass that beer around for minutes of time, and all three girls did get very intoxicated. And so that purpose of helping them contribute to their own delinquency was effectuated. And, and he promoted that idea by saying to them as he provided them the alcohol drink up, it's your last night out, because they had already told them they were runaways from the rehab facility. And so if there are no further questions, I'll rest on I brief. Thank you counsel. Mr. Barnard, do you wish to use your one Minute? Uh, I would waive my rebuttal unless the court has questions. All right. Thank you very much. Counsel. Case submitted. The court is in.