Argued: September 13, 2018
Hillsborough-southern judicial district
J. MacDonald, attorney general (Susan P. McGinnis, senior
assistant attorney general, on the brief and orally), for the
Barnard, senior assistant appellate defender, of Concord, on
the brief and orally, for the defendant.
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.
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.
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."
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.
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.
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.
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.
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."
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