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State v. Batista-Salva

Supreme Court of New Hampshire

February 22, 2019


          Argued: September 13, 2018

          Hillsborough-southern judicial district

          Gordon J. MacDonald, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.

          Thomas Barnard, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.

          HANTZ MARCONI, J.

         The defendant, Jose Batista-Salva, appeals his conviction for witness tampering following a jury trial in Superior Court (Colburn, J.). See RSA 641:5, I (2016). He raises three arguments on appeal, each of which is premised on an underlying argument that the witness tampering indictment was impermissibly constructively amended. To the extent his arguments are not preserved, he asks us to waive our preservation requirement or consider them under plain error review. We affirm.

         The jury could have found the following facts. On January 3, 2016, a man robbed a Wendy's restaurant in Nashua. When a cashier was handing an order to a customer via the restaurant's drive-through window, the robber ran up to the open window, pointed a gun at the cashier, and demanded money. Although the robber's face was covered by a bandana, the manager on duty, M.D., thought he recognized the robber's voice. M.D. believed the robber was the defendant, a former employee of that Wendy's restaurant. After the robbery, M.D. called 9-1-1 and reported to the responding officer that the defendant was the robber.

         The next day, the defendant contacted M.D.'s brother, C.D., via Facebook. The defendant asked C.D. why M.D. was saying that the defendant committed the robbery. The defendant told C.D. "[t]hat was not me," "tell your brother to stop saying that was me," "[t]ell him to never say my name off his mouth again and we will not have no beef," and "[r]eal men don't tell on a soul." He also said, "[A]ll I was asking is for you to talk to your brother and put some common sense on his side not to put my name out there."

         The State brought the defendant to trial on five indictments arising from the robbery. The court dismissed one charge. The jury acquitted him of three others, but found him guilty of witness tampering. This appeal followed.

         The defendant makes three arguments on appeal. All three are premised on an underlying argument that the witness tampering indictment was impermissibly constructively amended at trial. The State contends that the defendant never presented his constructive amendment argument to the trial court, and therefore none of his arguments are preserved for our review. We begin by considering the defendant's underlying constructive amendment argument, and whether it is preserved.

         "RSA 601:1 (2001), which must be considered in conjunction with Part I, Article 15 of the New Hampshire Constitution, requires that a person be indicted by the grand jury before he or she may be tried for any offense punishable by imprisonment in excess of one year." State v. Quintero, 162 N.H. 526, 541 (2011). Once an indictment has been returned, its language cannot be freely amended. See State v. Prevost, 141 N.H. 559, 560 (1997). "Amendments that purport to change an element of the offense are invalid, while amendments that involve merely the form of the indictment are freely allowed and may be made without the need to return to the grand jury." Quintero, 162 N.H. at 542 (citations omitted). In between these categories is a third type of amendment: one "that does not alter the crime charged in an indictment, but changes an allegation in the indictment that has the effect of specifying and circumscribing the scope of the crime alleged; for instance, an allegation of how the crime was committed." State v. Elliott, 133 N.H. 759, 764 (1990) (emphasis and quotation omitted); accord Quintero, 162 N.H. at 542. Amendments of this third type are impermissible if they prejudice "the defendant either in his ability to understand properly the charges against him or in his ability to prepare his defense." Quintero, 162 N.H. at 542 (quotation omitted). This prejudice analysis often entails a review of whether the record of the trial court proceedings shows that the defendant relied upon the specific factual allegations in the indictment. See, e.g., State v. Oakes, 161 N.H. 270, 279 (2010); State v. Doucette, 146 N.H. 583, 589-91 (2001); Elliott, 133 N.H. at 765-67.

         In this case, the witness tampering indictment alleged that the defendant, "believing that an official proceeding . . . was pending, purposely attempted to induce or otherwise cause M.D. . . . to withhold information when Jose Batista-Salva told M.D. [to] refrain from providing his name to police . . . ." (Emphasis added.) The defendant contends that the only evidence at trial that related to the indictment was his Facebook messages to M.D.'s brother, C.D. Because the messages were sent to C.D., not M.D., he argues that "there was no evidence that [the defendant] told M.D. anything." In light of these points, the defendant argues that the indictment was constructively amended at trial "to allege that he committed witness tampering by communicating with C.D. rather than M.D." The defendant then claims that this amendment was of the third type because the phrase "told M.D." specified and circumscribed how the alleged crime was committed. He further argues that the amendment was impermissible because it prejudiced him.

         The conclusion that an impermissible constructive amendment occurred operates as a premise in each of the defendant's further arguments. He contends that his conviction is not supported by legally sufficient evidence because there was no evidence that he "told M.D." anything. The defendant further argues that the trial court unsustainably exercised its discretion in admitting the Facebook messages into evidence because they were not relevant to whether the defendant "told M.D. [to] refrain from providing his name to police." Finally, the defendant submits that the trial court erred when it failed to instruct the jury that he could only be convicted of witness tampering if the jury found that he "told M.D. [to] refrain from providing his name to police."

         The State asserts that these arguments were never presented to the trial court and therefore are not preserved for our review. Generally, we do not consider issues raised on appeal that were not presented to the trial court. State v. Plantamuro, 171 N.H.__, __ (decided Sept. 7, 2018) (slip op. at 6); see State v. Mouser, 168 N.H. 19, 27 (2015). This preservation requirement, expressed in both our case law and Supreme Court Rule 16(3)(b), reflects the general policy that trial forums should have an opportunity to rule on issues and to correct errors before they are presented to the appellate court. State v. Wilson, 169 N.H. 755, 768 (2017). The defendant, as the appealing ...

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