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                  THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Hillsborough-southern judicial district
No. 2016-0577


                       THE STATE OF NEW HAMPSHIRE

                                          v.

                              JOSE BATISTA-SALVA

                          Argued: September 13, 2018
                       Opinion Issued: February 22, 2019

      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


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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 party,
bears the burden of demonstrating that he specifically raised the arguments
articulated in his appellate brief before the trial court. State v. McInnis, 169
N.H. 565, 573 (2017).

      The defendant argues that his constructive amendment argument was
preserved by (1) his objection to admission of the Facebook messages, (2) his


                                         3
motion to dismiss the witness tampering charge at the close of the State’s case,
and (3) his motion for judgment notwithstanding the verdict (JNOV) and his
argument at the hearing on that motion. In his objection to admission of the
messages, the defendant argued that they were not relevant to the witness
tampering charge, “or at least the way it was charged.” In his motion to
dismiss the witness tampering charge, he argued that the messages were “a
declaration of his innocence, the belief that he’s being framed,” and were not
attempts to cause M.D. to withhold information. In his motion for JNOV and at
the hearing on that motion, he argued that the evidence adduced by the State
may have been sufficient to convict the defendant of an inchoate variation of
witness tampering, but was not sufficient to convict him of the crime charged
in the indictment. The defendant never argued, as he does on appeal, that the
indictment was constructively amended to allege that he committed witness
tampering by telling C.D. to tell M.D. to refrain from providing his name to the
police. Nor did he argue that he was prejudiced by such an amendment. See
Quintero, 162 N.H. at 542 (explaining that an amendment of the third type
must be prejudicial to be impermissible). Thus, the trial court did not have the
opportunity to consider the argument the defendant raises on appeal. We
therefore conclude that the defendant’s constructive amendment argument is
not preserved.

       The defendant argues that we should waive our preservation requirement
if we find that his constructive amendment argument is not preserved.
Preservation is a limitation on the parties to an appeal, not the reviewing court;
thus we have discretion to waive our preservation requirement. Mouser, 168
N.H. at 28. One factor we consider when deciding to exercise this discretion is
whether the failure to raise the argument to the trial court results in an
insufficiently developed factual or legal record to guide our analysis. See id. In
this case, evaluating the merits of the defendant’s constructive amendment
argument would require us to determine whether the purported amendment
prejudiced him either in his ability to properly understand the charges against
him or in his ability to prepare his defense. See Oakes, 161 N.H. at 279. This
prejudice inquiry often entails a review of whether the record shows that the
defendant relied upon the specific factual allegations in the indictment in
defending against the charge. See, e.g., id.; Doucette, 146 N.H. at 591; Elliott,
133 N.H. at 765-67.

       While reliance, or the lack thereof, may be evident in the record even if
the constructive amendment claim brought on appeal was not raised to the
trial court, see Oakes, 161 N.H. at 279, we conclude that the record in this
case is insufficiently developed on the issue of reliance. Here, the record of the
trial court proceedings is ambiguous as to whether the defendant relied on the
factual allegations in the indictment in defending against the witness
tampering charge. We decline to waive our preservation requirement in the
absence of the record we need to properly evaluate the merits of the
defendant’s argument. Compare Mouser, 168 N.H. at 28 (declining to waive


                                        4
preservation requirement on ground that, “because the defendant did not raise
her appellate argument in the trial court, the trial court made very few (if any)
relevant findings of fact or rulings of law” (quotation omitted)), with State v.
Kardonsky, 169 N.H. 150, 152 (2016) (waiving preservation requirement
“because the appeal issue constitutes a discrete question of statutory
interpretation, requiring no further factual development”).

       The defendant also asks us to consider his arguments under plain error
review. See Sup. Ct. R. 16-A. The plain error rule allows us to exercise our
discretion to correct errors not raised before the trial court. State v. Hanes,
171 N.H. 173, 182 (2018). The rule is used sparingly, its use limited to those
circumstances in which a miscarriage of justice would otherwise result. Id.
For us to find plain error: (1) there must be error; (2) the error must be plain;
and (3) the error must affect substantial rights. Id. If all three of these
conditions are met, we may then exercise our discretion to correct a forfeited
error only if the error meets a fourth criterion: the error must seriously affect
the fairness, integrity, or public reputation of judicial proceedings. Id. The
defendant bears the burden of demonstrating plain error. State v. Fiske, 170
N.H. 279, 291 (2017).

       A constructive amendment of the third type is error under the first prong
of this standard if the defendant demonstrates that the amendment prejudiced
his ability to prepare his defense or understand the charges against him. See
Oakes, 161 N.H. at 278-79. Even assuming that a constructive amendment of
the third type occurred in this case, the defendant has not met his burden of
demonstrating that the amendment prejudiced him and therefore was
erroneous under the first plain error prong. As noted above, the record is
ambiguous regarding the defendant’s reliance on the language of the
indictment. Thus, because the defendant has not shown that any constructive
amendment was prejudicial and therefore impermissible, he has not
demonstrated plain error. See id. at 279.

     Given our conclusions above, we need not consider the defendant’s other
arguments, having rejected the premise on which they rely.

                                                  Affirmed.

      LYNN, C.J., and HICKS, BASSETT, and DONOVAN, JJ., concurred.




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