State v. Merritt

• Decision Date: 08 July 1999
• Docket Number: No. 96–786.,96–786.
• Citation: 738 A.2d 343,143 N.H. 714
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Kevin MERRITT.

143 N.H. 714

738 A.2d 343

The STATE of New Hampshire

v.Kevin MERRITT.

No. 96–786.

Supreme Court of New Hampshire.

July 8, 1999.

Philip T. McLaughlin, attorney general (John C. Kissinger, assistant attorney general), by brief, for the State.

Gary Apfel, assistant appellate defender, of Orford, by brief, for the defendant.

Kevin Merritt, by brief, pro se.

BRODERICK, J.

After a jury trial in Superior Court (Murphy , J.), the defendant, Kevin Merritt, was found guilty on four counts of acting in concert with another on the fraudulent use of credit cards, RSA 638:5 (1996). On appeal, he argues that the evidence was insufficient to sustain his convictions. He also raises claims of prosecutorial misconduct and ineffective assistance of counsel. We affirm in part, reverse in part, and remand for resentencing.

I

Because the defendant challenges the sufficiency of the evidence, we examine the record in the light most favorable to the State. See State v. Arillo , 131 N.H. 295, 297, 553 A.2d 281, 282 (1988). In December 1995, the defendant and his girlfriend, Kelly Higgins, had been living together for eighteen months. Higgins was in dire financial straits and did not have any source of income. On December 18, 1995, they went shopping and Higgins made numerous, expensive purchases with credit cards belonging to Frances Driscoll and Marjorie Dannis.

That afternoon, at approximately 2:00 p.m., Driscoll noticed that her purse, which contained her Jordan Marsh and Visa credit cards, was missing. Driscoll was the only person authorized to use the cards. At 2:30 p.m., Higgins used Driscoll's Jordan Marsh card to buy jewelry at the store in the Fox Run Mall. Several days later, a sales clerk gave a written statement to the police that "[o]n ¹²/₁₈, in the fine jewelry department in Jordan Marsh, [Higgins] was accompanied by [the defendant] and made a purchase using a credit card" belonging to Driscoll. There was no other evidence concerning the jewelry purchase.

Around 3:17 p.m. on December 18, after the defendant tried on clothes at American Eagle Outfitters in the mall, Higgins purchased men's pants and shirts with Driscoll's Visa card. The sales clerk testified that the defendant "was standing right next to [Higgins]" while the sale was taking place and that the defendant basically "did all the talking." Later that afternoon, the defendant and Higgins looked at a men's gold bracelet at Hannoush Jewelers in the mall. The sales clerk testified that she had "a long conversation" with the defendant about the bracelet and that they "went back and forth" over the price for twenty-five minutes. The defendant successfully negotiated a lower price, and Higgins bought the bracelet with the Visa card. Subsequently, Higgins and the defendant patronized Whitehall Jewelers, which is also located in the mall, and said they were interested in buying the defendant a gold bracelet. The sales clerk testified that she interacted principally with the defendant and that he was interested in negotiating a lower price. The clerk obtained the manager's approval to reduce the price, which made the defendant "very, very excited." He shook her hand "for helping him pick out such a real nice piece that he was very, very anxious to have." At 3:52 p.m., Higgins bought the bracelet with Driscoll's Visa card.

The defendant and Higgins then proceeded to Prelude Jewelers in downtown Portsmouth. The store owner testified that the defendant and Higgins had been in the store previously and admired a women's diamond ring. During the December 18 visit, the owner heard the defendant tell Higgins he wanted to buy her the ring but that he would need to use her credit card. At 4:53 p.m., Higgins again used Driscoll's Visa card and purchased the ring.

Around 5:30 p.m., a short distance from Prelude Jewelers, a man stole Marjorie Dannis' purse from her car. Her purse contained her Visa and Mastercard, which only she was authorized to use.

At 7:30 p.m., a male matching the defendant's description tried on a pair of men's work boots at J.C. Penney in the Fox Run Mall, and the woman with him purchased them with Dannis' Mastercard. At 7:44 p.m., the defendant and Higgins purchased a men's diamond ring from the store's jewelry department, with Higgins using Dannis' Mastercard. The sales clerk spoke mainly with the defendant. When the sale was completed, the clerk gave the defendant, who identified himself as "Kevin Johnson," a diamond certificate. At trial, the clerk explained that the individual named in the certificate was entitled to free diamond cleanings and to trade the diamond for one of greater value in the future. When Dannis' purse was later recovered at a gas station in Portsmouth, it contained a torn diamond certificate and part of a receipt.

Based on this evidence, the defendant was indicted on four charges of fraudulent use of credit cards, alleging that he acted in concert with Higgins: the first count was for the Jordan Marsh jewelry; the second count was for the purchases at American Eagle, Hannoush Jewelers, and Whitehall Jewelers; the third count related to the ring purchased at Prelude Jewelers; and the fourth count identified the ring bought at J.C. Penney. The jury found the defendant guilty on all four counts, and this appeal followed.

II

We first address the defendant's argument that the evidence was insufficient to sustain his convictions under New Hampshire law. See State v. LaRose , 127 N.H. 146, 153, 497 A.2d 1224, 1230–31 (1985). While the defendant is represented by appellate counsel, he also filed a pro se brief alleging that his convictions violated his rights under federal law. Because the Federal Constitution is not more favorable to the defendant than the State Constitution in this area, we do not engage in a separate federal analysis. Cf. State v. Roach , 141 N.H. 64, 65, 677 A.2d 157, 159 (1996).

The indictments alleged that the defendant "act[ed] in concert" with Higgins in the fraudulent use of the Driscoll and Dannis credit cards. The trial court instructed the jury that "acting in concert" meant accomplice liability. Under our Criminal Code, a person may be legally accountable for the conduct of another person if "[h]e is an accomplice of such other person in the commission of [an] offense." RSA 626:8, II(c) (1996). A person is an accomplice if, "[w]ith the purpose of promoting or facilitating the commission of [an] offense, he ... aids or agrees or attempts to aid such other person in planning or committing it." RSA 626:8, III(a) (1996).

In reviewing the sufficiency of the evidence, "we must determine whether, based upon all the evidence and all reasonable inferences from it, when considered in a light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt that the defendant was a voluntary and active participant" in each of the fraudulent credit card transactions. Arillo , 131 N.H. at 297, 553 A.2d at 282.

The defendant first contends that no rational jury could have found him guilty as an accomplice for the Jordan Marsh jewelry purchase because he was merely present in the store and did not take affirmative steps to satisfy the actus reus requirement. We agree. The crime of accomplice liability necessitates "some active participation by the accomplice." Id . (quotation omitted). Mere presence at the scene of a crime is insufficient. State v. Goodwin, 118 N.H. 862, 866, 395 A.2d 1234, 1236 (1978). The defendant's presence, however, can be sufficient if it was intended to, and does, aid the primary actor. Id . Thus, the defendant's presence may constitute aiding and abetting when it is shown to encourage the perpetrator or facilitate the perpetrator's unlawful deed. Id . Moreover, the circumstances surrounding the defendant's presence at the scene may warrant a jury inference beyond a reasonable doubt that he sought to make the crime succeed. Id .

The State relies on State v. Laudarowicz , 142 N.H. 1, 694 A.2d 980 (1997), to argue that the defendant's act of accompanying Higgins to Jordan Marsh, given the relationship between the two, was sufficient to constitute "encouragement" and trigger accomplice liability. Laudarowicz, however, is inapplicable because the defendant in that case conceded that he aided the principal and challenged only the evidence of his intent. See id . at 4, 694 A.2d at 983. Moreover, we relied upon substantial evidence other than the defendant's presence at the scene to support his convictions. See id . at 5–6, 694 A.2d at 983–84. Here, there is no evidence that the defendant did anything other than accompany Higgins to the Jordan Marsh store. The record does not indicate where the defendant was when the jewelry was purchased, nor does it reflect that he did or said anything which could be construed as aiding Higgins. Cf. State v. Vaillancourt , 122 N.H. 1153, 1155, 453 A.2d 1327, 1328 (1982) (indictment alleging that defendant aided another person "by accompanying him to the location of the crime and watching" insufficient to constitute "aid" as accomplice).

The State also relies on evidence of the defendant's other conduct on the day in question to support the inference that he engaged in similar conduct at Jordan Marsh. Assuming that the defendant's subsequent conduct might be relevant to his intent, cf. N.H. R. Ev. 404(b), we conclude that the State failed to present sufficient facts to satisfy the actus reus element of accomplice liability. Accordingly, we reverse the defendant's conviction with respect to count one.

The defendant next contends that no rational jury could have found him guilty as an accomplice for the remaining transactions because he did not participate in them. He asserts no actus reus was proven, and because he did not know Higgins' use of the credit cards was unauthorized, no mens rea was established either. We disagree.

With respect to actus reus , the jury could have found that the defendant aided Higgins in these other transactions. In each...