The defendant, Ruben Ortega, appeals his convictions for simple assault, witness tampering and criminal threatening. He argues that the trial court erred in: (1) denying his motion to redact uncharged misconduct evidence from a transcript and recording; and (2) instructing the jury that the culpable mental state for witness tampering was "knowingly" rather than "purposely." We affirm.
We briefly set forth the relevant facts. Just before midnight on November 12, 2010, the Manchester Police Department was advised that the State 911 system had received a hang-up call from the vicinity of the intersection of Harrison and Walnut Streets. Shortly thereafter, another call came in to the 911 system from the same vicinity reporting that a female was screaming for help. Officers were dispatched to the scene and eventually the defendant was arrested for assaulting the victim.
On November 13, 2010, the defendant made sixteen telephone calls to the victim from jail. As a result, he was charged with three counts of witness tampering. The indictments cited the following statements: (1) "tell them I didn't choke you" (Call 9); (2) "you have to retract your comment" (Call 6); and (3) "you better change your statements so I can get out" (Call 7).
During the victim's testimony, the State played a recording of the first seven calls, and without objection provided the jury with a transcript of all sixteen calls. After the parties stipulated that the defendant placed the calls to the victim's cell phone and the victim received the first seven calls and then blocked future calls, the defendant objected to the admission of Call 8, in which the defendant said, "Say you were drunk and made it up." After noting that the transcript of all sixteen calls had been admitted as a full exhibit and that the jury had seen it, the court ruled that the objection was untimely.
The State contends that the trial court's ruling was sustainable or that, if there was error, it was harmless. We will assume without deciding that the trial court erred in declining to order the redaction of the transcript. We conclude based upon the record before us, however, that any error was harmless. An error is harmless only if it is determined beyond a reasonable doubt that the error did not affect the verdict. State v. Belonga, 163 N.H. 343, 362 (2012). The State bears the burden of proving that an error is harmless. Id. An error may be harmless if the alternative evidence of the defendant's guilt is of an overwhelming nature, quantity or weight and if the inadmissible evidence is merely cumulative or inconsequential in relation to the strength of the State's evidence of guilt. Id. In determining whether an error is harmless, we consider the alternative evidence presented at trial as well as the character of the inadmissible evidence. Id.
In this case, the messages left by the defendant were brief. They included:
(1)"Hello this is a call from I've got two felony charges" (Calls 1-3); (2) "Hello this is a call from It's a three year minimum" (Call 4); (3) "You have to retract your comment" (Call 6); (4) "You better change your statement so I can get out" (Call 7); and (5) "Tell them I didn't choke you" (Call 9). These calls were admitted without objection. As the defendant concedes, he made sixteen calls to the victim on November 13, 2010. Given the repetitive nature of the calls, we conclude that Call 8 was merely cumulative and that any error in admitting the one sentence text of Call 8 was harmless.
The defendant next argues that the trial court erred in instructing the jury that the culpable mental state for witness tampering was "knowingly." He concedes that he "did not challenge the instructions on the ground that they erroneously defined the mens rea element for witness tampering as knowingly rather than purposely, " but asks that we review his claim of error under our plain error rule. See Sup. Ct. R. 16-A.
Under our plain error rule, we may consider errors not raised before the trial court. State v. Guay, 162 N.H. 375, 380 (2011). The rule is used sparingly, its use limited to those circumstances in which a miscarriage of justice would otherwise result. Id. To meet the plain error standard: (1) there must be an error; (2)the error must be plain; (3) the error must affect substantial rights; and (4) the error must seriously affect the fairness, integrity or public reputation of judicial proceedings. State v. Ortiz, 162 N.H. 585, 591 (2011).
The defendant argues that his sole defense to the witness tampering charges was his purpose in making the telephone calls. His trial testimony was that he called the victim because: (1) "the situation was going to be bad on me according to her statements and I was trying to acknowledge her of the seriousness of the situation"; (2) "I was trying to get her to be honest"; and (3) "I made a lot of calls because I didn't have any time to actually speak to her and I wanted to make sure that she understood what was happening with me in case she thought that it was just something minor." He also testified that he called to say "I love you" several times because he "was hoping that we would reconcile, you know after an argument. I was willing to forgive and forget." He argues that because the State's evidence of his mental state was not overwhelming, we should exercise our discretion under our plain error rule and reverse.
The State concedes both that the trial court erred in instructing the jury on the mental state required to prove witness tampering, see State v. Brewer, 127 N.H. 799, 800 (1986), and that the error was plain.
The State further contends that because the instructions did not omit a statutory element and the issue of the defendant's mental state was not a contested issue at trial, the error was harmless. We disagree that the instructions did not omit a statutory element, given that they failed to instruct the jury to find the element of "purposefulness." We further note that under our case law such an error, if preserved for appeal, would not be subject to harmless error analysis. See Kousounadis, 159 N.H. 413, 422-29 (2009). In this case, however, the issue is not preserved. Accordingly we apply our plain error analysis.
We will assume without deciding that the incorrect jury instructions affected the defendant's substantial rights under the third prong of our plain error review. See, e.g., State v. Russell, 159 N.H. 475, 491 (2009). Evaluating this issue based on the specific facts of this case, see id., we conclude that the error does not satisfy the fourth prong. See Puckett v. United States, 556 U.S. 129, 135 (2009) (if first three prongs of plain error review are met, appellate court "has the discretion to remedy the error – discretion that ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings." (double quotations and brackets omitted)).
In this case, the evidence that the defendant acted purposely, that is, that his "conscious object [was] to cause the result or engage in the conduct that comprised the element, " RSA 626:2 (2007), was overwhelming. Each of the indictments alleged in relevant part that the defendant "knowingly attempted to cause [the victim] to inform falsely when he called her from the Valley Street Jail." The defendant called the victim sixteen times in one day. In his first three calls, he identified himself as: "I've got two felonies." His next call specified his potential prison sentence: "Hello this is a call from It's a three year minimum." These calls were followed by calls telling the victim: (1) "You have to retract your comment"; (2) "You better change your statement so I can get out"; and (3) "Tell them I didn't choke you." We note that the defendant was convicted of assaulting the victim and that he does not challenge the sufficiency of that evidence on appeal. Given the overwhelming evidence that the defendant acted for ...