Argued: April 17, 2013.
Michael A. Delaney, attorney general (Elizabeth C. Woodcock, assistant attorney general, on the brief and orally), for the State.
Stephanie Hausman, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.
Following a jury trial in Superior Court (O'Neill, J.), the defendant, Michael Carpenter Noucas, appeals his conviction for being an accomplice to armed robbery. See RSA 636:1 (2007) (robbery); RSA 626:8 (2007) (accomplice liability). On appeal, he argues that the trial court erred when it: (1) found that sufficient evidence supported his conviction; (2) failed to instruct the jury on defense of another under RSA 627:4 (Supp. 2012); and (3) sustained a hearsay objection made by the State. He also argues that the trial court committed plain error when it admitted testimony that the defendant invoked his right to counsel following his arrest. We affirm.
The jury could have found the following facts. On June 5, 2010, the defendant told Julie Sallies and Robert Hart that he wanted to rob "some guy" who was staying at Sarah Longval's house at 16 Lake Street in Meredith. Longval was the mother of the defendant's son, and the defendant had a key to her house. After a brief discussion, in which the defendant said that the intended victim had cocaine and cash, Sallies, Hart, and the defendant prepared to commit the robbery. Hart dressed in dark clothing, Sallies obtained two orange ski masks, and Hart or Sallies grabbed a baseball bat. After Sallies drove the defendant and Hart to Meredith, the defendant instructed her to park in a small gravel area behind Longval's house. The defendant and Hart then got out of the car, put on the two orange ski masks, and went into the tree line behind the house. The defendant soon returned to the car and collected a knife. Sallies stayed in the car.
Approximately fifteen minutes later, the defendant staggered back to the car. He was bleeding "everywhere." His left ear was nearly severed, and he had a stab wound in his throat, a small wound on the top of his head, and smaller cuts on his arms and hands. When Hart failed to appear after a few moments, Sallies drove to the Meredith police station to get help. The police subsequently found Hart dead in a spare bedroom on the third floor of Longval's house. He had sustained approximately a dozen stab wounds to his chest, back, and head. He was found wearing rubber gloves and a bat was lying on the floor nearby. The intended victim of the robbery, David Rivera, had cuts on one of his hands or arms. An orange ski mask and a rubber glove recovered from inside the spare bedroom on the third floor of the house tested positive for the defendant's DNA.
The defendant was subsequently charged with being an accomplice to armed robbery. The indictment charged that the defendant aided Hart in the commission of armed robbery with the purpose that the offense be committed. It further charged that the defendant, knowing that Hart was about to commit armed robbery, agreed to assist Hart and accompanied him to Longval's residence while armed with a knife and wearing a mask and rubber gloves. After a jury convicted the defendant, he appealed.
I. Sufficiency of the Evidence
The defendant first argues that the trial court erred in finding that there was sufficient evidence to support his conviction.
RSA 626:8 provides, in relevant part, that an individual is "legally accountable for the conduct of another person when . . . [h]e is an accomplice of such other person in the commission of the offense." RSA 626:8, II(c); State v. Formella, 158 N.H. 114, 116 (2008). A person is an accomplice if "[w]ith the purpose of promoting or facilitating the commission of the offense, he solicits such other person in committing it, or aids or agrees or attempts to aid such other person in planning or committing it." RSA 626:8, III(a); see Formella, 158 N.H. at 116. A person commits robbery if, in the course of committing a theft, he "[u]ses physical force on the person of another and such person is aware of such force, " or "[t]hreatens another with or purposely puts him in fear of immediate use of physical force." RSA 636:1. A person commits armed robbery if, while committing robbery, he was: (1) actually armed with a deadly weapon; (2) reasonably appeared to the victim to be armed with a deadly weapon; or (3) inflicted or attempted to inflict death or serious injury on the person of another. RSA 636: I, III; State v. Glanville, 145 N.H. 631, 633 (2000).
The defendant argues that the evidence presented at trial was not sufficient to support his conviction because it "failed to exclude all rational conclusions consistent with innocence." He asserts that the evidence concerning his "actions in the house was entirely circumstantial, " and that "[t]he State conceded that its evidence on the accomplice to armed robbery charge was circumstantial." He contends that if he "did not accompany Hart to or into the room, his presence would not have aided Hart in committing an armed robbery." He further contends that "a rational conclusion remains that [he] entered the room to assist Hart but did not assist in Hart's armed robbery of Rivera." Finally, the defendant argues that "RSA 626:8, VI(c) makes lack of renunciation an element of the offense, " and that the "State was required to admit sufficient evidence that [he] did not abandon his intent to aid Hart but [the State] failed to do so."
To prevail on a challenge to the sufficiency of the evidence, a defendant must show that "no rational trier of fact, viewing all of the evidence and all reasonable inferences from it in the light most favorable to the State, could have found guilt beyond a reasonable doubt." State v. Langill, 161 N.H. 218, 228 (2010). Where the evidence does not consist solely of circumstantial evidence, it need not exclude all rational conclusions other than guilt. See State v. Saunders, 164 N.H. 342, 351 (2012). On the other hand, where the evidence is solely circumstantial, the inferential chain of circumstances must be of sufficient strength that guilt is the sole rational conclusion. See id.
As an initial matter, we note that the State disputes that it "conceded that its evidence on the accomplice to armed robbery charge was circumstantial." We agree that the State did not make this concession. The record establishes that the prosecutor merely informed the court that "plenty of circumstantial evidence" supported the charges against the defendant. The prosecutor also noted that witness testimony and physical evidence recovered from Longval's house supported the charges. See State v. Newcomb, 140 N.H. 72, 80 (1995) (direct evidence includes "the testimony of a person who claims to have personal knowledge of facts about the crime charged" (quotation omitted)).
Based upon the evidence presented at trial, we conclude that the defendant has failed to show that "no rational trier of fact, viewing all of the evidence and all reasonable inferences from it in the light most favorable to the State, could have found guilt beyond a reasonable doubt." Langill, 161 N.H. at 228. Although there was no direct evidence of what transpired inside the house, the totality of the evidence, both direct and circumstantial, was sufficient to support a conclusion beyond a reasonable doubt that an armed robbery occurred and that the defendant aided and agreed to assist Hart in its commission. Sallies testified that the defendant told Hart and her that he wanted to commit robbery, traveled with Hart and her to the destination of the planned robbery, directed her to park behind Longval's house before commission of the robbery, and prepared for the robbery by wearing a ski mask and arming himself with a knife. The defendant also admitted that he was inside the house during the robbery and used force against Rivera. Moreover, the State presented evidence that a ski mask and rubber glove recovered from the scene tested positive for the defendant's DNA and that Hart was found wearing rubber gloves with a baseball bat nearby. Viewing all the evidence and all reasonable inferences from it in the light most favorable to the State, the jury could have found that the defendant, with the purpose of promoting or facilitating its commission, aided Hart in committing armed robbery. See RSA 636:1; RSA 626:8.
Insofar as the defendant argues that RSA 626:8, VI(c) makes lack of renunciation an element of the offense, and that the State was required to prove that he did not abandon his intent to aid Hart, we conclude that the defendant failed to preserve this issue for appellate review.See State v. Winward, 161 N.H. 533, 542 (2011). He did not make this argument in his motion to dismiss for insufficient evidence. Nor did he object to the trial court's jury instructions, which did not inform the jury that lack of renunciation under RSA 626:8 VI(c) is an element of accomplice liability. We have "consistently held that we will not consider issues raised on appeal that were not presented in the [trial] court." State v. Winstead, 150 N.H. 244, 246 (2003) (quotation omitted). "This requirement is designed to discourage parties unhappy with the trial result to comb the record, endeavoring ...