Argued November 13, 2013.
Joseph A. Foster, attorney general ( Nicholas Cort, 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.
DALIANIS, C.J. HICKS, CONBOY and BASSETT, JJ., concurred; LYNN, J., concurred specially.
The defendant, John A. Smith, appeals the sentence imposed by the Superior Court ( Fitzgerald, J.) following his conviction by a jury of receipt of stolen property. See RSA 637:7, :11, I(b) (2007). The sole issue for our review is whether the trial court committed plain error by imposing a felony-level sentence, see RSA 637:11, I(b), instead of a [166 N.H. 41] misdemeanor-level sentence, see RSA 637:11, III (2007), when the jury was not instructed that it had to find that the stolen property consisted of firearms. See RSA 637:11, I(b). We affirm.
The jury could have found the following facts. In the summer of 2010, the victim invited a man and a woman into his home for a drink and showed them two handguns that he owned: a Smith & Wesson .44 caliber handgun and a SIG Sauer .380 caliber handgun. The three continued to drink, and eventually, the victim lost consciousness. When he awoke the next morning, he noticed the two handguns were missing, and he reported them stolen.
In August 2010, Eric Underwood telephoned the defendant and asked if he was interested in buying any weapons. The defendant told Underwood to " bring them over." Underwood retrieved the two stolen handguns from another man and drove to the defendant's residence where the defendant gave Underwood $400 for the two guns.
Sometime thereafter, the defendant asked a friend if he was interested in purchasing the two guns for $200 each. The friend immediately telephoned the Keene Police Department, offering to act as a confidential informant in this case. The police, together with the New Hampshire Attorney General's Drug Task Force, arranged for the defendant's friend to purchase the guns from the defendant while the friend wore a recording device.
The " buy" occurred on August 17, 2010. Before the friend met with the defendant, the police searched the friend and gave him $400. See State v. Tabaldi, 165 N.H. 306, 309-10, 77 A.3d 1124, 1129 (2013) (describing " controlled buys" in general). The police accompanied the friend to the defendant's home. The friend entered the home, spoke briefly with the defendant, gave him $400, and returned to the police with the two handguns. He was searched again after giving the guns to the police and was not found to have any contraband. An officer immediately checked the serial numbers on the guns and confirmed that they were the victim's stolen guns. At trial, the victim identified the guns as his stolen guns.
At the beginning of the trial, the jury was read the indictment on which the defendant had been arraigned:
John Smith ... is charged with the crime of receiving stolen property contrary to RSA 637:7 and 637:11 on or about the 17th day of August, 2010 ... in that [he] did receive, retain, or dispose of the .380 caliber handgun and/or a .44 caliber handgun, knowing that the handgun or handguns had been stolen, or believing that the handgun or handguns had probably been stolen, with the purpose to deprive the owner of that handgun or those handguns by selling one or both handguns to ...