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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Cheshire
No. 2012-313


                        THE STATE OF NEW HAMPSHIRE

                                           v.

                                  JOHN A. SMITH

                          Argued: November 13, 2013
                       Opinion Issued: January 28, 2014

      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. 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 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 (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 J.M., contrary to the
      form of the statute in such cases made and provided, and against
      the peace and dignity of the State.




                                        2
Throughout the trial, witnesses, including the defendant, referred to the
handguns as “firearms.” At the trial’s conclusion, the jury was instructed that,
to convict the defendant, it had to find, beyond a reasonable doubt, that: (1) he
“received, retained, and/or disposed of property”; (2) “the property belonged to
another person”; (3) he “knew the property had been stolen or believed that . . .
it had probably been stolen”; and (4) he “received the property with the purpose
to deprive the owner of the property.” The defendant did not object to those
instructions. After the jury convicted the defendant, the trial court sentenced
him to the New Hampshire State Prison for a minimum of three years and a
maximum of six years, stand committed. The defendant did not object to the
sentence.

       On appeal, however, the defendant argues that his sentence violates Part
I, Article 15 of the State Constitution because, for him to receive a felony-level
sentence, the jury must have been instructed to find, unanimously and beyond
a reasonable doubt, that the stolen property consisted of firearms. See RSA
637:11, I(b) (receipt of stolen property constitutes a class A felony when “[t]he
property stolen is a firearm”). Because the defendant did not make that
argument in the trial court, he invokes the plain error rule, which allows us,
under certain narrowly drawn circumstances, to correct errors not raised in the
trial court. See Sup. Ct. R. 16-A.

       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. State v. Charest, 164
N.H. 252, 254 (2012). If all three 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 rule is used sparingly, however, and is limited to
those circumstances in which a miscarriage of justice would otherwise result.
Id. We assume, without deciding, that the first three prongs of the plain error
test are met. See State v. Russell, 159 N.H. 475, 490-94 (2009). We, therefore,
confine our review to the fourth prong of the plain error test.

       We find Russell instructive. The defendant in Russell, 159 N.H. at 490,
was sentenced under RSA 651:2, II-g (Supp. 2013), which provides for an
enhanced sentence “[i]f a person is convicted of a felony, an element of which is
the possession, use or attempted use of a deadly weapon, and the deadly
weapon is a firearm.” The trial court had instructed the jury that to convict the
defendant of armed robbery, it had to find that he was armed with a “deadly
weapon.” Id. (quotation omitted). However, the court did not instruct the jury
that it had to find that the “deadly weapon” with which the defendant was
armed was a firearm. Id. Instead, the trial court defined a “deadly weapon” as
“any firearm, knife or anything else which is used in such a way that the
defendant knew or should have known that it could result in death or serious
bodily injury.” Id. (quotation omitted). At trial, there was evidence that the


                                         3
“deadly weapon” used could have been a BB gun. Id. at 492. The defendant
argued that, based upon the jury instructions and evidence presented at trial,
the jury could have convicted him of armed robbery with a BB gun. Id. at 489.
Accordingly, he contended that because the trial court did not instruct the jury
that it had to find that the “deadly weapon” he used in the armed robbery was
a firearm, his sentence under RSA 651:2, II-g was unconstitutional. Id.

       Because the defendant in Russell failed to object to the jury instructions
and to his sentence, we reviewed his sentence under the plain error rule. Id. at
489. Although we agreed with the State’s concession that the trial court erred
and that the error was plain, id. at 490, we concluded that the fourth prong of
the plain error test was not met because evidence that the defendant used a
firearm was overwhelming and undisputed, id. at 491-93. We explained that
although a witness testified “that he initially thought that the shooter had a BB
gun . . . , he also testified that the defendant pointed a gun at [the victim].” Id.
at 492. The witness stated that the gun looked like a revolver and that a BB
gun would not have done as much damage to the window of the car in which
the victim was seated. Id. Moreover, the victim testified that someone “had
stuck a gun inside [the] vehicle and shot out its back window.” Id. A crime
scene technician testified that he found a metal fragment in the vehicle’s
dashboard and that the fragment appeared to be a bullet. Id. A firearms
expert confirmed that the fragment “was from a discharged bullet.” Id.
(quotation omitted). In addition, at trial, the defendant in Russell did not
dispute that the deadly weapon used during the robbery was a firearm. Id.
“Given the overwhelming and essentially uncontroverted evidence that the
defendant used a firearm to commit the armed robbery,” we declined to
exercise our discretion to reverse the defendant’s conviction and sentence
under the fourth prong of the plain error test. Id.

      Similarly, here, evidence that the stolen property at issue consisted of
handguns was overwhelming. The evidence at trial concerned only handguns
as stolen property; no other allegedly stolen property was discussed.
Additionally, the defendant did not dispute at trial, and does not dispute on
appeal, that a handgun is a firearm. See id. At trial, witnesses, including the
defendant, referred to the stolen handguns as “firearms.” In this case, as in
others involving the issue of whether a handgun is a “firearm,” based upon the
evidence at trial, “there was no real issue as to whether the handgun was a
firearm.” State v. Taylor, 136 N.H. 131, 134 (1992); see State v. St. John, 129
N.H. 1, 3-4 (1986) (when defendant was charged with possessing a .357 Dan
Wesson handgun and witnesses referred to the handgun as a “firearm” at trial,
there was no need for trial court to instruct jury that a firearm is “a weapon
from which shot is discharged by gunpowder” (quotation omitted)).
Accordingly, as in Russell, we will not exercise our discretion under the fourth
prong of the plain error rule to reverse the defendant’s conviction and sentence.
See Russell, 159 N.H. at 492. Given the essentially uncontroverted evidence


                                         4
that the stolen property consisted of handguns and that the handguns
constitute firearms, “the real threat then to the fairness, integrity, and public
reputation of judicial proceedings would be if the defendant, despite th[at] . . .
uncontroverted evidence . . . , were not to receive the enhanced sentence.” Id.
(quotation and brackets omitted).

      In Russell, we also declined to hold “that the failure to instruct the jury
on an element of the offense always constitutes plain error,” explaining that to
do so “would create a windfall for criminal defendants,” giving them “every
incentive not to object” at trial to jury instructions. Id. at 494. The defendant
asks us to overrule that part of Russell. He asks that we hold “that, where the
jury has not been instructed to find a sentencing enhancement element,
sentencing based on that enhancement is plain error, satisfying all four
elements of the plain error test.”

      Generally, we will overrule a prior decision only after considering:
      (1) whether the rule has proven to be intolerable simply by defying
      practical workability; (2) whether the rule is subject to a kind of
      reliance that would lend a special hardship to the consequence of
      overruling; (3) whether related principles of law have so far
      developed as to have left the old rule no more than a remnant of
      abandoned doctrine; and (4) whether facts have so changed, or
      come to be seen so differently, as to have robbed the old rule of
      significant application or justification.

Maplevale Builders v. Town of Danville, 165 N.H. 99, 105 (2013) (quotation
omitted). The defendant argues only that Russell is “intolerable,” but not
because it “def[ies] practical workability.” Id. (quotations omitted). The
defendant asserts that Russell is intolerable because: (1) it treats defendants
who have preserved their objections to jury instructions and sentencing
differently from those who have not; (2) it conflicts with prior and subsequent
cases; and (3) it undermines “significant constitutional guarantees.” In effect,
the defendant finds Russell to be intolerable because he believes that it was
incorrectly decided. However, “[p]rincipled application of stare decisis requires
a court to adhere . . . to . . . precedent in the absence of some special reason
over and above the belief that a prior case was wrongly decided.” Id. (quotation
omitted). Having failed to brief the four stare decisis factors, the defendant has
not persuaded us that Russell must be overruled. See id.

                                                          Affirmed.

      HICKS, CONBOY and BASSETT, JJ., concurred; LYNN, J., concurred
specially.




                                         5
      LYNN, J., concurring specially. Because my view as to the factors that
may warrant overruling precedent is broader than that of the majority, see
State v. Quintero, 162 N.H. 526, 543-47 (2011) (Lynn, J., concurring specially),
I arguably would be more willing than the majority to overrule State v. Russell,
159 N.H. 475 (2009), if I thought that case had been wrongly decided. But I do
not believe Russell was wrongly decided; and insofar as the defendant argues
that Russell is fundamentally at odds with our decision in State v.
Kousounadis, 159 N.H. 413 (2009), I tend to believe that it is Kousounadis, not
Russell, that is ripe for reexamination. See Kousounadis, 159 N.H. at 429-34
(Dalianis, J., joined by Hicks, J., concurring in part and dissenting in part).




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