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                  THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Hillsborough-northern judicial district
No. 2016-0118


                       THE STATE OF NEW HAMPSHIRE

                                          v.

                                   FELIX RUIZ

                           Argued: October 19, 2017
                       Opinion Issued: January 31, 2018

      Ann M. Rice, deputy attorney general (Susan P. McGinnis, senior
assistant attorney general, on the brief and orally), for the State.


      Stephanie Hausman, deputy chief appellate defender, of Concord, on the
brief and orally, for the defendant.

       DALIANIS, C.J. The defendant, Felix Ruiz, appeals his conviction by a
jury of misdemeanor receipt of stolen property; namely, a United States
passport belonging to an African-American woman named “Cecilia Francis
Riley.” See RSA 637:7 (2016). On appeal, he argues that the Superior Court
(Smukler, J.) erred when it: (1) denied his motion to suppress certain evidence,
including his post-Miranda confession, see Miranda v. Arizona, 384 U.S. 436
(1966); and (2) denied his motion to dismiss based upon insufficiency of the
evidence. We affirm.
I. Facts

     We accept the trial court’s findings where supported by the record of the
suppression hearing. State v. Morrill, 169 N.H. 709, 711 (2017). For the
purpose of determining the sufficiency of the evidence, we also consider facts
adduced at trial that support the jury’s verdict. See id. at 711-12.

       In May 2015, the defendant accompanied Juan Manuel Soto Guzman to
the Manchester office of the State Division of Motor Vehicles (DMV) so that
Guzman could obtain a New Hampshire driver’s license under the name “Angel
Berrios Rivera.” The defendant knew Guzman and was aware that Guzman is
not, in fact, “Angel Berrios Rivera.”

       Before accompanying Guzman to the Manchester DMV, the defendant
performed what he called a “background” on “the Angel Berrios Rivera
identity,” and provided the information he collected about that identity to
Guzman in exchange for money. The defendant then drove Guzman to the
Manchester DMV and filled out the driver’s license application in the “Angel
Berrios Rivera” name for Guzman. Among the documents that the defendant
submitted with Guzman’s application were: (1) a social security card in the
“Angel Berrios Rivera” name; (2) a birth certificate for “Angel Berrios Rivera”;
and (3) a lease agreement between “Angel Berrios Rivera” and a landlord. With
respect to the lease agreement, the defendant signed it on behalf of the
“landlord” and gave his own cellular telephone number as the landlord’s
telephone number. The defendant said that he knew that “the real Angel
Rivera . . . was not aware that [the defendant] had collected his information
and had utilized it . . . at the DMV.” According to the defendant, he is part of a
“whole process of obtaining documents and assisting” others in obtaining “false
identities.”

      After Guzman’s driver’s license application had been submitted, State
Troopers Dupont and O’Leary were dispatched to the Manchester DMV because
the submitted documents appeared to be fraudulent. Guzman and the
defendant were asked if they would speak to the troopers, and both men agreed
to do so. The two men were separated. O’Leary spoke with Guzman. Dupont
spoke with the defendant in a room that was 10 feet by 10 feet square and
contained a desk and a chair. Dupont sat behind the desk, leaving the room’s
door open. Periodically, Dupont left the room to consult with O’Leary.

      Once Dupont identified himself to the defendant, the defendant asked,
“out of the blue,” whether “there [was] anything wrong with the documents.”
Dupont “thought it was an odd question” because “up to [that] point, [he] had
believed that [the defendant] was simply there . . . to assist . . . Guzman” in
obtaining a driver’s license.




                                        2
      Dupont began by inquiring, generally, about who the defendant was, why
he was there, and how he knew the other man (Guzman). Initially, the
defendant claimed that he did not know the other man and that he was at the
DMV only to act as a translator. Eventually, he admitted to knowing the other
man’s father. Finally, he conceded that he had known the other man for two
weeks.

       The defendant told Dupont that he had traveled from his home in Hyde
Park, Massachusetts, had picked up the other man at the Manchester address
listed on the driver’s license application and taken him to the Manchester
DMV, and that the defendant was not being paid for his services. He also told
Dupont that he had not given the other man any documents to be submitted
with the driver’s license application.

      The police contacted Immigration and Customs Enforcement (ICE).
When an ICE agent arrived at the DMV to fingerprint Guzman, Dupont asked
the defendant if he would be willing to be fingerprinted, and the defendant
agreed. When Guzman was fingerprinted, his true identity was revealed.
Guzman was then taken into custody.

      Before leaving the DMV, Guzman voluntarily showed O’Leary text
messages that he had exchanged with the defendant to arrange their meeting
and to agree to a $350 fee for the defendant’s services. After he was confronted
with the messages, the defendant admitted to signing the lease agreement for
Guzman.

       At that time, which was approximately two and one-half hours after the
interview began, the police arrested the defendant for conspiracy. He was then
advised of his Miranda rights. See Miranda, 384 U.S. at 479. Dupont read
each right to the defendant, after which he asked the defendant whether he
understood his rights and would agree to waive them. The defendant agreed to
waive his rights and initialed and signed the form. He then wrote a statement
in which he claimed that Guzman, to whom he referred as “Angel,” had paid
him $25 for translation services and $25 for gas in exchange for assisting him
with the driver’s license application. He denied signing the lease agreement,
but admitted that he gave his cellular telephone number as the landlord’s
number at “Angel’s” request. When Dupont pointed out that the defendant had
just confessed to signing the lease, the defendant wrote on the back of the
statement that he had, indeed, signed the lease. The defendant signed both
the front and back of the statement.

       Upon further questioning, the defendant admitted that Guzman was not,
in fact, “Angel,” that he had provided Guzman with documents related to the
“Angel Berrios Rivera” identity in order to help Guzman obtain “another
identity,” and that he and others from Massachusetts were part of a “whole
process of obtaining documents and assisting” individuals to procure “false


                                       3
identities.” The defendant told Dupont that he was paid to perform
“backgrounds” on individuals and that the information he obtained was then
given to someone else who would generate the false identity documents. As
part of the “background” that he did on the “Angel Berrios Rivera” identity, the
defendant looked for names “to try and consolidate the name and date of birth
and the Social Security number” associated with that identity.

       During the entire interview, the defendant was “extremely cooperative”
with and “polite” to the troopers. As a result, Dupont offered to release him
provided that he produce the minimum amount of cash bail for a misdemeanor
charge. The defendant had no cash available, but claimed that his girlfriend
could bring it. The troopers allowed him to text his girlfriend, who agreed to
come to the DMV with the money. However, the girlfriend never arrived and,
after a few hours of waiting, the police decided to transport the defendant to jail
and allow his girlfriend to meet him there.

      Before being escorted to jail, the defendant expressed concern about
leaving his girlfriend’s purse visible in his vehicle. The defendant agreed to
allow Dupont to hide the purse and gave him the keys to his vehicle.

      Dupont did not see the purse on the driver’s side of the passenger
compartment, and, thus, entered the vehicle to see if it was located elsewhere.
He observed the following items on the floor between the driver and passenger
seats: (1) a two-part lease agreement that appeared to be similar to the form
that had been submitted with Guzman’s driver’s license application; (2) a white
envelope on which were written the word “Junior,” the signature of “Angel
Berrios Rivera,” and the number “25”; and (3) a document detailing an on-line
search of a social security number for “Angel Berrios Rivera.” Believing the
documents to be contraband related to Guzman’s attempt to obtain a driver’s
license and fearing that the defendant’s girlfriend would destroy or remove
them, Dupont seized them. Upon exiting the vehicle, Dupont saw a small
purse, which he hid, as the defendant had requested.

      Thereafter, without showing the defendant the documents or informing
the defendant about what he had observed, Dupont asked the defendant if he
would consent to a search of his vehicle. The defendant readily agreed, signing
a handwritten consent form that Dupont drafted. Dupont conducted a full
search of the vehicle, during which he found a black bag containing, among
other items, the passport at issue in this case.

       Dupont then showed the defendant the Miranda form again and asked
him if he recalled his rights and that he had waived them. The defendant said
that he did, and the two troopers questioned him about the documents found
in his vehicle. The defendant told Dupont that “he had been cleaning [Riley’s]
house because she was deceased, and the [landlord] that had hired him told
him that if he found anything he wanted, he could keep it,” so “when he came


                                        4
across the passport, . . . he just kept it.” The defendant did not explain to
Dupont why he retained the passport.

      In a search of the defendant’s person incident to his arrest, Dupont
found inside the defendant’s wallet a medical card in the name of “Juan Pena.”
The defendant gave no reason as to why he had that card in his possession.

II. Motion to Suppress

      A. Relevant Procedural Facts

       Before trial, the defendant moved to suppress his statements and the
documents found in his vehicle on the ground that they were obtained in
violation of his Miranda rights. The trial court partially granted and partially
denied his motion.

       With respect to the statements the defendant made before being advised
of his Miranda rights, the trial court determined that the statements he made
before being fingerprinted were admissible because, before then, the defendant
had not been subject to custodial interrogation. The court observed that the
door to the interview room was left open and that Dupont did not block the
exit. Moreover, the court found that, although Dupont was armed, he never
drew his weapon or physically restrained the defendant. Further, the tone of
the interview was polite throughout. Additionally, the duration of that portion
of the interview (two and one-half hours) was not excessive.

      The court determined that the fingerprinting of the defendant
“fundamentally shifted the nature of the interview” because it resulted in
Guzman’s arrest and allowed O’Leary to join Dupont in questioning the
defendant. At that point, the trial court found, the interview constituted
custodial interrogation. Thus, the court suppressed the defendant’s initial
admission to signing the lease agreement because he made it before having
been warned of his Miranda rights.

       With respect to the statements the defendant made after he was advised
of his Miranda rights, the court found that the defendant’s waiver of those
rights was knowing, intelligent, and voluntary. The court also determined that,
considering the totality of the circumstances, the defendant’s post-
Mirandaconfession was voluntarily given. Accordingly, the court did not
suppress any of the defendant’s post-Miranda statements.

      With respect to the documents found in the defendant’s vehicle, the trial
court determined that: (1) Dupont was lawfully in the vehicle when he
inadvertently observed the documents; (2) Dupont lawfully seized the
documents; and (3) because Dupont’s initial seizure of the documents was
lawful, the defendant’s subsequent consent to search, the additional


                                        5
documents retrieved from his vehicle, and his subsequent statements did not
constitute the “fruit of the poisonous tree.” The court also found that the
defendant’s consent to search his vehicle was voluntary. Based upon those
findings, the court declined to suppress the evidence obtained from the
defendant’s vehicle.

      B. The Defendant’s Appellate Arguments

      The defendant argues that the trial court erred when it determined that
his post-Miranda confession was voluntary. When reviewing a trial court’s
order on a motion to suppress, we accept the trial court’s factual findings
unless they lack support in the record or are clearly erroneous, and we review
the court’s legal conclusions de novo. Morrill, 169 N.H. at 715.

      We first address the defendant’s claim under the State Constitution and
rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-
33 (1983). Our State Constitution requires the State to prove, beyond a
reasonable doubt, that a defendant’s confession is voluntary. See State v.
Fleetwood, 149 N.H. 396, 402 (2003); see N.H. CONST. pt. I, art. 15. “To be
voluntary, a confession must be the product of an essentially free and
unconstrained choice and not be extracted by threats, violence, direct or
implied promises of any sort, or by the exertion of any improper influence or
coercion.” Fleetwood, 149 N.H. at 402-03 (quotation omitted). “Whether a
confession is voluntary is initially a question of fact for the trial court, whose
decision will not be overturned unless it is contrary to the manifest weight of
the evidence, as viewed in the light most favorable to the State.” Id. at 402
(quotation omitted).

       When, as in this case, the defendant’s post-Miranda confession is
preceded by an earlier voluntary confession that violated his Miranda rights,
we consider the following factors to determine whether the “lesser taint of a
Miranda violation” was dissipated: (1) the time lapse between the initial
confession and the subsequent statements; (2) the defendant’s contacts, if any,
with friends or family members during that period of time; (3) the degree of
police influence exerted over the defendant; (4) whether the defendant was
advised that his prior admission could not be used against him; and (5)
whether the defendant was advised that his prior admission could be used
against him. Id. at 405-06. No single factor is dispositive. See id. at 406.

       Although the defendant purports to challenge the validity of his Miranda
waiver, as the State suggests, he does not develop that argument sufficiently
for judicial review. See State v. Blackmer, 149 N.H. 47, 49 (2003). Rather, he
merely asserts, without authority or further argument, that “[t]he court erred in
finding that [his] Miranda waiver was voluntary.” Consequently, we will not
separately address the validity of the defendant’s waiver of his Miranda rights.
See Fleetwood, 149 N.H. at 406.


                                        6
       Viewing all of the circumstances surrounding the defendant’s post-
Miranda confession in the light most favorable to the State, we conclude that
the trial court’s finding that the post-Miranda confession was voluntary is not
against the manifest weight of the evidence. See id. at 402. Here, there was no
delay between the defendant’s arrest and the giving of the required warnings.
See id. at 407. As the defendant acknowledges in his appellate brief, once he
was arrested for conspiracy, the police “immediately reviewed Miranda rights
with [him],” and he “indicated his understanding of the rights and willingness
to speak.”

      Nor was there evidence that the police made any promises, threats, or
displays of force in an attempt to induce the defendant to confess. See id. at
406 (observing that the trial court found the defendant’s confession to be
voluntary, in part, because of “the absence of threats, violence or coercion of
any kind and the absence of promises or undue influence”); see State v.
Dellorfano, 128 N.H. 628, 636 (1986). Rather, according to the trial court, the
interaction between the police and the defendant was, at all times, polite and
relaxed. See Fleetwood, 149 N.H. at 406 (noting that the trial court found the
defendant’s confession to be voluntary based, in part, upon the “cordial tone of
the interview” and “the defendant's calm tone of voice” (quotation omitted)).
Although Dupont was armed, he never drew his weapon or physically
restrained the defendant. Further, before confessing, the defendant never
requested, and the police never denied him, contact with his family and
friends. Indeed, when the subject of bail was broached, the police allowed the
defendant to contact his girlfriend and to wait several hours for her to arrive.

      Although, as the trial court found, “there was a minimal time lapse”
between the defendant’s unwarned confession and his post-Miranda
confession, we do not consider this fact to be dispositive under the
circumstances of this case. “[A] time lapse between the unwarned and warned
confessions is not required for the subsequent confession to be voluntary.” Id.
at 407. However, as we have explained:

      [I]f a defendant has been arrested and is unquestionably in
      custody and entitled to Miranda warnings, a police decision to
      delay giving the required warnings and elicit a statement followed
      immediately by the warnings and another incriminating statement,
      strongly suggests that the police are exploiting the inherent
      pressures of custodial interrogation such that the post-Miranda
      statement should ordinarily be inadmissible.

Id. (citations omitted).

       Here, there is no evidence of “a police decision to delay giving the
required warnings,” after the defendant was “unquestionably in custody and
entitled to Miranda warnings.” Id. Rather, as in Fleetwood, during the


                                       7
interview that preceded the defendant’s unwarned confession, his custody
status was unclear. See id. He had not been arrested. See id. At most, he
had been subject to investigatory detention. He was interviewed in a room with
the door open. No officer blocked the exit from the room. The officer, while
armed, never drew his weapon or physically restrained the defendant. The
length of the interview was not excessive. The questioning of the defendant
was not accusatory. The defendant’s custody status did not become clear until
he was arrested, and, at that time, he was immediately advised of his Miranda
rights.

      We also do not consider dispositive the fact that the police failed to
advise the defendant that his unwarned confession could not be used against
him in court. See id. at 406. “[I]t is impractical to require the police to
determine the admissibility of an unwarned confession.” Id. “This would
require them to make legal determinations regarding whether there had been
interrogation and custody.” Id. Considering the relevant circumstances,
viewed in the light most favorable to the State, we conclude that the trial
court’s finding that the post-Miranda confession was voluntary is not against
the manifest weight of the evidence. See id. at 402.

      In arguing for a contrary result, the defendant relies upon the plurality
opinion in Missouri v. Seibert, 542 U.S. 600 (2004). “In Seibert, police
employed a two-step strategy to reduce the effect of Miranda warnings: A
detective exhaustively questioned Seibert until she confessed to murder and
then, after a 15- to 20-minute break, gave Seibert Miranda warnings and led
her to repeat her prior confession.” Bobby v. Dixon, 565 U.S. 23, 30 (2011)
(per curiam); see Seibert, 542 U.S. at 604-06, 616 (plurality opinion). “The
Court held that Seibert’s second confession was inadmissible as evidence
against her even though it was preceded by a Miranda warning.” Dixon, 565
U.S. at 30.

       “A plurality of the Court reasoned that upon hearing warnings only in the
aftermath of interrogation and just after making a confession, a suspect would
hardly think he had a genuine right to remain silent, let alone persist in so
believing once the police began to lead him over the same ground again.” Id.
(quotation and brackets omitted); see Seibert, 542 U.S. at 613-15 (plurality
opinion) (detailing a “series of relevant facts that bear on whether Miranda
warnings delivered midstream could be effective enough to accomplish their
object”).

      Justice Kennedy “concurred in the judgment, noting he would apply a
narrower test applicable only in the infrequent case in which the two-step
interrogation technique was used in a calculated way to undermine the
Miranda warning.” Dixon, 565 U.S. at 30-31 (quotation and ellipsis omitted);
see Seibert, 542 U.S. at 622 (Kennedy, J., concurring). His narrower test
controls under the Federal Constitution. See Panetti v. Quarterman, 551 U.S.


                                        8
930, 949 (2007) (explaining that “[w]hen there is no majority opinion, the
narrower holding controls”); see United States v. Jackson, 608 F.3d 100, 103-
04 & n.2 (1st Cir. 2010) (observing that some federal circuit courts of appeal
have interpreted Justice Kennedy’s vote as limiting the reach of Seibert).

      Under the Federal Constitution, the defendant’s reliance upon Seibert is
misplaced as there is no evidence in this case that the police were following a
“deliberate question-first, warn-later strategy.” Dixon, 565 U.S. at 30
(quotation omitted). As the trial court found, at the time of the defendant’s
unwarned confession, the police had not decided to arrest him. There is no
evidence “of any pre-planned evasion of Miranda.” United States v. Jackson,
608 F.3d 100, 104 (1st Cir. 2010). We need not decide whether the State
Constitution requires that we provide greater protection to criminal defendants
than Justice Kennedy’s narrower test because, even if such circumstances
might exist in another case, they do not exist here.

      Because the trial court’s finding that the defendant’s post-Miranda
confession was voluntary is not against the manifest weight of the evidence, we
hold that the trial court did not err when it denied his motion to suppress that
confession. The Federal Constitution offers the defendant no greater protection
than does the State Constitution under these circumstances. See State v.
Aubuchont, 141 N.H. 206, 208 (1996) (observing that the State Constitution
provides greater protection to a criminal defendant with respect to confessions
than does the Federal Constitution). Accordingly, we reach the same result
under the Federal Constitution as we do under the State Constitution.

       The defendant next asserts that “all of the State’s evidence flowed from
[his] unwarned statements,” and, thus, should have been suppressed as the
fruit of that poisonous tree. We disagree.

       This court, construing Part I, Article 15 of the State Constitution, has
specifically interpreted the “fruit of the poisonous tree” doctrine to apply in the
Miranda context, “holding that certain physical evidentiary fruits derived from
a Miranda violation are inadmissible at trial.” State v. Barkus, 152 N.H. 701,
706 (2005); see State v. Gravel, 135 N.H. 172, 180-84 (1991). “In Gravel, police
elicited information from a defendant in violation of his Miranda rights, then
used that information to procure a search warrant that ultimately yielded
cocaine and related paraphernalia.” Barkus, 152 N.H. at 706; see Gravel, 135
N.H. at 174-75. “Reversing the defendant’s conviction for possession of
cocaine, we concluded that because the search warrant was tainted by the
Miranda violation, the subsequent search was illegal and all evidence seized
thereby was inadmissible at trial.” Barkus, 152 N.H. at 707; Gravel, 135 N.H.
at 176. “Essential to our reasoning in Gravel was the fact that no act of free
will on the defendant’s part intervened between the primary illegality and the
subsequent search.” Barkus, 152 N.H. at 707.



                                        9
      In Barkus, the defendant voluntarily consented to a breath test after
being advised of her statutory right to refuse. Id. Unlike the defendant in
Gravel, the defendant in Barkus was given “the option of refusing to provide
the physical evidence at issue.” Id. “By electing to proceed with the test after
being informed of her rights, the defendant engaged in an intervening act of her
own free will.” Id. Thus, in Barkus, we declined “to apply the Gravel ‘fruit of
the poisonous tree’ doctrine.” Id.

      We similarly decline to apply the Gravel “fruit of the poisonous tree”
doctrine in this case. First, we decline the defendant’s implied invitation to
expand that doctrine beyond physical evidence. Second, the defendant in this
case, similar to the defendant in Barkus, after having been informed of his
rights, engaged in intervening acts of his own free will. See id. The defendant
expressed concern about the purse in his vehicle long after he made the
unwarned confession. He did not express concern until after the police allowed
him to text his girlfriend and to wait several hours for her to arrive at the
Manchester DMV. It was only after she failed to arrive and the police decided
to take the defendant to jail that he expressed concern about the purse.

      Moreover, the defendant voluntarily accepted Dupont’s offer to enter the
vehicle in order to hide the purse and voluntarily gave Dupont the keys to his
vehicle. Further, the defendant voluntarily consented to a full search of his
vehicle. Under these circumstances, we decline to apply the Gravel “fruit of the
poisonous tree” doctrine to the physical evidence at issue in this case.

III. Sufficiency of the Evidence

      A. Relevant Procedural Facts

      At trial, after the State had rested, the defendant moved to dismiss on
the ground that the State had “presented no evidence that [he] knew the
passport was stolen or believed that it had probably been stolen” or that he
“intended to deprive . . . Riley of [it].” The defendant also asserted that the
State had failed to prove that the passport belonged to someone other than
him. Specifically, his counsel argued:

      [T]he State has alleged that [the defendant] retained property
      belonging to [Cecilia Francis] Riley. Ms. Riley did not testify at
      trial. No evidence was presented to show that she was even alive.
      And to the contrary, evidence was presented that [the defendant] at
      least believed her to be deceased. No other individual who claimed
      to have a possessory interest in this property testified at trial.

The trial court denied the defendant’s motion. After the jury convicted him, the
defendant unsuccessfully moved for reconsideration and/or to set aside the
verdict.


                                        10
      B. The Defendant’s Appellate Arguments

       The defendant argues that the trial court erred by denying his motion to
dismiss based upon sufficiency of the evidence. “A challenge to the sufficiency
of the evidence raises a claim of legal error; therefore, our standard of review is
de novo.” Morrill, 169 N.H. at 718 (quotation omitted). To prevail upon his
challenge to the sufficiency of the evidence, the defendant must demonstrate
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. Id.

       To convict the defendant of receiving stolen property, the jury had to
find, beyond a reasonable doubt, that he (1) received, retained, or disposed of
the property of another (2) knowing that the property had been stolen, or
believing that it had probably been stolen and that (3) he acted with the
specific purpose to deprive the owner of the property. RSA 637:7, I.

      On appeal, the defendant argues, for the first time, that “[t]hese elements
require the State to prove that the property was stolen.” He contends that the
State’s proof was insufficient because the State presented no evidence that his
possession of the passport was illegal, such as “testimony from Riley’s family
that her passport had been stolen.” He argues that, absent such proof, “[a]
rational conclusion from the evidence is that [his] possession of the passport
was not illegal and, thus, that he did not know or believe the passport was
probably stolen.”

       The defendant did not preserve this argument for our review. “The
general rule in this jurisdiction is that a contemporaneous and specific
objection is required to preserve an issue for appellate review.” State v. Edic,
169 N.H. 580, 583 (2017) (quotation omitted). “This rule, which is based on
common sense and judicial economy, recognizes that trial forums should have
an opportunity to rule on issues and to correct errors before they are presented
to the appellate court.” Id. (quotation omitted).

       In the trial court, the defendant never argued that the evidence was
insufficient because the State had failed to prove that the passport, in fact, had
been stolen. Rather, the defendant argued that the evidence was insufficient
because the State had failed to prove that he possessed property belonging to
another. See State v. Pappas, 705 P.2d 1169, 1171-72 (Utah 1985) (citing
cases and explaining the split between jurisdictions that require that the
property actually be stolen and those that require only that the person
receiving the property believe that it probably has been stolen). He contended
that the State’s proof failed because no evidence had been presented that Riley
was alive, “[n]o other individual who claimed to have a possessory interest in
this property testified at trial,” and “[t]he State presented no evidence that [she]



                                        11
had an estate, that she had any relatives, that she had anyone who had a
possessory interest” in the passport.

      In considering the defendant’s motion, the trial court observed that the
State “presented evidence [that] the passport . . . was clearly not [the
defendant’s],” implying that such proof was sufficient. Consistent with that
observation, the trial court did not instruct the jury that the State had to prove
that the passport was, in fact, stolen. Rather, the court instructed the jury,
without objection, that the State had to prove that “the Defendant received,
retained, or disposed of the property of another person.” Under these
circumstances, we conclude that the defendant did not preserve his argument
for our review.

       Because the defendant has not preserved his argument for our review,
we confine our review to plain error. See Sup. Ct. R. 16-A. The plain error rule
allows us to consider errors that were not raised in the trial court. State v.
Pennock, 168 N.H. 294, 310 (2015). “We apply the rule sparingly, its use
limited to those circumstances in which a miscarriage of justice would
otherwise result.” Id. (quotation omitted). “To reverse a trial court decision
under the plain error rule: (1) there must be an error; (2) the error must be
plain; (3) the error must affect substantial rights; and (4) the error must
seriously affect the fairness, integrity or public reputation of judicial
proceedings.” Id. (quotation omitted).

       Here, even if we were to assume error, we conclude that the second
criterion — that the error must be plain — is not met. “For the purposes of the
plain error rule, an error is plain if it was or should have been obvious in the
sense that the governing law was clearly settled to the contrary.” Id. (quotation
omitted). “When the law is not clear at the time of trial and remains unsettled
at the time of appeal, a decision by the trial court cannot be plain error.” Id.
(quotation omitted). “‘Plain’ as used in the plain error rule is synonymous with
clear or, equivalently, obvious.” Id. (quotation omitted).

       Because our law is unsettled, an error, if any, was neither “clear” nor
“obvious.” Id. (quotations omitted). There is some support in our case law for
the proposition that the State must prove that the property at issue was, in
fact, stolen, in order to obtain a conviction for receipt of stolen property. See
State v. Stauff, 126 N.H. 186, 189 (1985) (“In order for the State to convict on
the charge of receiving stolen property, it must prove beyond a reasonable
doubt that the property was stolen, that the defendant possessed the property,
that he believed the property was stolen, and that he intended to deprive the
owners of the property.”).

      On the other hand, there is also support in our case law for the
proposition that, to obtain a conviction, the State need show only that the
property belonged to someone else. See State v. Stanley, 132 N.H. 571, 572-73


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(1989) (to convict the defendant of receiving stolen property, the State did not
have to prove, beyond a reasonable doubt, the specific identity of the owner of
the property; rather, the State had to prove only that the property was “‘the
property of another’” (quotation omitted)); State v. Brown, 132 N.H. 321, 328
(1989) (rejecting the defendant’s assertion that the trial court erroneously failed
to set aside the verdict when neither he nor the State’s expert could have
ascertained that the aluminum had been stolen; simply because the State’s
expert was unable to determine whether the aluminum had been stolen did not
require a fact-finder to find that the defendant likewise did not know that it
had been stolen); State v. Wong, 138 N.H. 56, 65 (1993) (rejecting the
defendant’s contention that the evidence was insufficient because the State
failed to prove that, when he purchased the Yamaha outboard motor, the
Yamaha constituted stolen property and concluding that, to convict, the jury
had only to find that the defendant received the “property of another”).

      Moreover, the Model Penal Code, from which our Criminal Code is largely
derived, State v. Donohue, 150 N.H. 180, 183 (2003), makes clear that, to
convict a defendant of receiving stolen property, “[t]here is no requirement . . .
that the property in fact have been stolen; it is sufficient if the actor believes
that the property probably has been stolen.” Model Penal Code and
Commentaries § 223.6 cmt. 4(b) at 239 (1980). Given the uncertainty in our
law, any error in determining that the State could obtain a conviction without
having to prove that the passport had, in fact, been stolen, was not “plainly
evident” from our prior case law.

       The defendant also argues that “the trial court . . . applied the wrong
mental state to the evidence” because the trial court asked defense counsel
during the argument on the defendant’s motion to dismiss: “[S]houldn’t your
client have known that a landlord doesn’t have permission to give something
that belongs to an estate?” The defendant contends that this question
demonstrates that the trial court believed that, to convict, the State had to
show only that the defendant “should have known” that the property was
stolen.

       This argument misses the mark. Regardless of any erroneous belief that
the trial court may have entertained as to the required mens rea for the
offense, the court properly instructed the jury that, to convict the defendant of
receiving stolen property, the State had to prove that he “knew that the
property had been stolen or believed that it had probably been stolen.” RSA
637:7, I. Under those circumstances, we decline to exercise our discretion to
consider this argument under our plain error rule.

       To the extent that the defendant contends that the evidence was
insufficient for the jury to have found, beyond a reasonable doubt, that he
knew that the passport was stolen or believed that it probably had been stolen,
we disagree. “The essential element of guilty knowledge on the part of a


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receiver of stolen property can rarely be proven by direct evidence but it may be
demonstrated by any surrounding facts or circumstances from which such
knowledge may be inferred.” Stauff, 126 N.H. at 190 (quotations and brackets
omitted).

       The defendant argues, and the State does not dispute, that the evidence
regarding whether he knew that the passport was stolen or believed that it
probably had been stolen was solely circumstantial. When the evidence is
solely circumstantial, it must exclude all reasonable conclusions except guilt.
Morrill, 169 N.H. at 718. “Under this standard, however, we still consider the
evidence in the light most favorable to the State and examine each evidentiary
item in context, not in isolation.” Id. (quotation omitted).

       There was evidence that the defendant works with others to obtain false
identification documents so that an individual can obtain another identity, and
thus, that the defendant would have had a reason to possess a stolen passport.
The jury heard evidence regarding how he performs “backgrounds” on
individuals, such as “Angel Berrios Rivera,” for a fee. With regard to the “Angel
Berrios Rivera” identity, the jury heard that the defendant looked for names “to
try and consolidate the name and date of birth and the Social Security
number” associated with that identity. His information was used to generate a
false social security card, false birth certificate, and a false lease agreement, all
in the name of “Angel Berrios Rivera,” which were then submitted to the
Manchester DMV so that Guzman could obtain a new identity. All of this
evidence was probative of the defendant’s mental state. See State v. Fennelly,
123 N.H. 378, 391 (1983) (holding that the defendant’s transactions in Maine
were admissible to prove that he received stolen property in New Hampshire
because they constituted “evidence of a common scheme or plan”). From this
evidence and the reasonable inferences to be drawn therefrom, viewed in the
light most favorable to the State, the jury could have found, beyond a
reasonable doubt, that the defendant knew that the passport was stolen or
believed that it probably had been stolen. See RSA 637:6 (2016) (providing that
a person commits theft when he “obtains property of another which he knows
to have been lost or mislaid, . . . without taking reasonable measures to return
the same to the owner, and . . . [he] has the purpose to deprive the owner of
such property”).

       The defendant argues that the evidence was insufficient to “foreclose
other rational conclusions, such as that the passport, with no identifiable
monetary value, was abandoned upon [Riley’s] death and the landlord was
legally permitted to dispose of it.” In so arguing, the defendant presumes that,
in reviewing his sufficiency claim, we must assume that the jury credited his
story of how he came to possess the passport. However, “where solely
circumstantial evidence is at issue, the critical question is whether, even
assuming all credibility resolutions in favor of the State, the inferential chain of
circumstances is of sufficient strength that guilt is the sole rational


                                         14
conclusion.” State v. Saunders, 164 N.H. 342, 351 (2012) (emphasis added)
(footnote omitted).

                                               Affirmed.

     HICKS, LYNN, BASSETT, and HANTZ MARCONI, JJ., concurred.




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