State v. Carr

• Decision Date: 13 January 2015
• Docket Number: No. 2014–044,2014–044
• Citation: 110 A.3d 829,167 N.H. 264
• Parties: The STATE of New Hampshire v. Colleen CARR
• Court: New Hampshire Supreme Court

167 N.H. 264

110 A.3d 829

The STATE of New Hampshire

v.Colleen CARR

No. 2014–044

Supreme Court of New Hampshire.

Argued: November 12, 2014

Opinion Issued: January 13, 2015

Joseph A. Foster, attorney general(Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.

Keefe & Keefe P.A., of Wilton (William Keefe on the brief and orally), for the defendant.

HICKS, J.

The defendant, Colleen Carr, appeals her conviction by a jury on one count of felony criminal solicitation of accomplice to insurance fraud, seeRSA 629:2(2007);RSA 638:20, III (2007), IV(a)(1)(Supp. 2014), and two counts of felony witness tampering, seeRSA 641:5, I (2007).On appeal, she argues that the Superior Court(Colburn, J.) erred by: (1) failing to dismiss the criminal solicitation indictment; (2) declining to give the jury two of her requested instructions; and (3) denying her motion to dismiss the second witness tampering conviction on double jeopardy grounds.The defendant also argues that the evidence was insufficient to convict her of criminal solicitation and of one of the witness tampering charges.We affirm.

I.Background Facts

The jury could have found the following facts.The defendant owned a building at 139 Union Square, in an area known as the "Milford Oval" in Milford.Her mother's real estate business and a tobacco business owned by Richard Fells occupied the first floor of the building.The defendant and her boyfriend, Conrad Kelleher, lived on the second floor, and a tenant and her daughter lived on the third floor.

In late 2012, the defendant and Kelleher discussed selling the building.Kelleher thought that doing so would help the defendant's financial situation, which he knew "wasn't good."Shortly thereafter, the defendant informed Kelleher of her idea to address her situation: she proposed to collect $403,000 in insurance proceeds by having the building burned down.The defendant told Kelleher that because she did not want their belongings to be "ruined,"they should move them out but then "bring some old stuff in so it wouldn't look so obvious."

The defendant and Kelleher spoke about involving the tenant in the plan.In mid-January 2013, the defendant approached the tenant, told her "[t]hat she was broke," and said that "[s]he wanted to torch the building to get the insurance money."The defendant offered to pay the tenant $7,000 to "leave for two weeks."The defendant assured the tenant that if the tenant "wanted to keep anything[,][the defendant] would store it at her mother's house."She also told the tenant "that she would help [her] find a place to live so [the tenant] wouldn't have to worry where [she] was going to live after that."The defendant informed the tenant that she was moving her own belongings "[i]nto her mother's basement," and that "she didn't care" about the businesses located in her building "because they all had insurance."The defendant told the tenant that "she didn't want [her] to tell anybody."Later that evening, the tenant telephoned the defendant and "told her [she] didn't want any part of this scheme."The defendant told the tenant "to get out."A few days later, the tenant spoke to Fells about the defendant's plan because she"was afraid ... [t]hat the building would be torched and he would lose everything."

Eventually, Kelleher, Fells, and the tenant separately told the police about the defendant's plan.On January 17, Kelleher agreed that the police could record telephone calls between him and the defendant.In the first recorded call, Kelleher told the defendant that the police had requested that he come to the station to talk; Kelleher asked, "[W]hat am I supposed to do?"The defendant responded, "Well, go down and ... ‘I don't know anything,’ okay?"She then said, "I think it's got something to do with [the tenant]....She threatened it.She threatened it, ... okay ...?"

In the second call, initiated by the defendant, she told Kelleher to inform the police that the tenant was "on Klonopin" and was often "drunk."She also told Kelleher to tell the police that he knew "nothing" and that whatever the tenant had told them was "a lie."She told Kelleher to say that he"didn't hear nothing."At one point, she said, "What did I just tell you to say?"Kelleher responded, "I'm going to say that the woman is on ... she takes that stuff and everything else and she drinks a lot."The defendant reminded Kelleher also to tell the police that whatever the tenant told them "was an absolute lie."

In the third call, Kelleher told the defendant that the police had heard rumors about the building being burned down.The defendant asked, "Why didn't you say like I told you, ‘Well, the tenant threatened to burn it down.She's always drunk?’ "

Shortly after the last call, the defendant called the police herself and left a voicemail message for one of the officers in which she said that the tenant was "drunk all the time," took "Klonopin now, too," had a rent arrearage, and that she had threatened to burn down the building because the defendant had refused to allow the tenant's pregnant daughter to live with her.The defendant was arrested later that evening.In September 2013, the defendant sold the building for $150,000.

II.Analysis

A.Sufficiency of Criminal Solicitation Indictment

The defendant first argues that the criminal solicitation indictment violates Part I, Article 15 of the New Hampshire Constitution.The indictment alleges that the defendant solicited the crime of accomplice to insurance fraud when she purposely solicited the tenant "to leave her apartment for a period of time in order for another person to commit ... arson [on] the building ... so that [the defendant] could collect the insurance proceeds."The defendant contends that the indictment is constitutionally inadequate because it fails to allege: (1) the elements of the crime of insurance fraud, seeRSA 638:20, II (2007); (2) the method by which the defendant sought to commit insurance fraud; and (3) the elements of the crime of accomplice to insurance fraud, seeRSA 638:20, III.We disagree.

" Part I, Article 15 of the State Constitution requires that an indictment describe the offense with sufficient specificity to ensure that the defendant can prepare for trial and avoid double jeopardy."State v. Ericson,159 N.H. 379, 384, 986 A.2d 488(2009)."To be constitutional, the indictment must contain the elements of the offense and enough facts to notify the defendant of the specific charges."Id."An indictment generally is sufficient if it recites the language of the relevant statute; it need not specify the means by which the crime was accomplished or other facts that are not essential to the elements of the crime."Id.

"A person is guilty of criminal solicitation if, with a purpose that another engage in conduct constituting a crime, he commands, solicits or requests such other person to engage in such conduct."RSA 629:2."The statute does not require that the solicited conduct actually occur."State v. Kaplan,128 N.H. 562, 563, 517 A.2d 1162(1986).Rather, "the offense of solicitation is complete once the request has been made."People v. Woodard,367 Ill.App.3d 304, 305 Ill.Dec. 82, 854 N.E.2d 674, 688(2006).The criminal solicitation statute requires the State only to identify the solicited crime.SeeRSA 629:2(providing that "[a] person is guilty of criminal solicitation" if, "with a purpose that another engage in conduct constituting a crime,"he or she"commands, solicits or requests" that person "to engage in such conduct").In this way, it is like the attempt statute.SeeState v. Munoz,157 N.H. 143, 147, 949 A.2d 155(2008);see alsoRSA 629:1, I (2007)(providing that "[a] person is guilty of an attempt to commit a crime if, with a purpose that a crime be committed, he does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step toward the commission of the crime").

Also, like attempt, solicitation is an inchoate crime.SeeRSA 629:1(2007), :2;see alsoState v. Jensen,164 Wash.2d 943, 195 P.3d 512, 517(2008)(explaining that "the crime of solicitation ... is the most inchoate of the ... anticipatory offenses").Solicitation "is the act of trying to persuade another to commit a crime that the solicitor desires and intends to have committed."Robbins, Double Inchoate Crimes, 26 Harv. J. on Legis. 1, 29 (1989)."The mens rea of solicitation is a specific intent to have someone commit a completed crime."Id.Solicitation is like conspiracy in that "disclosure of the criminal scheme to another party constitutes a part of the actus reus."Id."But, while the actus reus of a conspiracy is an agreement with another to commit a specific completed offense, the actus reus of a solicitation includes an attempt to persuade another to commit a specific offense."Id. at 29–30.The crime of solicitation ordinarily implies the solicitant's rejection of the solicitor's request.Seeid. at 30."Thus, solicitation can be viewed as an attempt to conspire."Id.;see alsoJensen,195 P.3d at 517.However, unlike conspiracy and attempt, it requires no overt act other than the offer itself.Jensen,195 P.3d at 517.

Contrary to the defendant's assertions, the criminal solicitation statute does not require the State to plead and prove the elements of the solicited crime, here, accomplice to insurance fraud.SeeMunoz,157 N.H. at 147, 949 A.2d 155(referring to an indictment alleging attempt).Nor is the State required to plead and prove the elements of the crime to which the tenant would have been an accomplice.Because solicitation is an attempt to conspire, and because attempt "is by definition a crime not completed,"the State could not have pleaded, factually identified, and proved all of the elements of insurance fraud or of accomplice to insurance fraud because those crimes had not been carried out.State v....