State v. Thomas Winward.

• Decision Date: 25 February 2011
• Docket Number: No. 2009–882.,2009–882.
• Parties: The STATE of New Hampshirev.Thomas WINWARD.
• Court: New Hampshire Supreme Court

161 N.H. 533

20 A.3d 338

The STATE of New Hampshire

v.Thomas WINWARD.

No. 2009–882.

Supreme Court of New Hampshire.

Argued: Jan. 20, 2011.Opinion Issued: Feb. 25, 2011.

Michael A. Delaney, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.Law Office of Shepherd & Osborne, PLLC, of Nashua (Mark Osborne on the brief and orally), for the defendant.DUGGAN, J.

The defendant, Thomas Winward, appeals his conviction by a jury on one count of attempted burglary. See RSA 635:1 (2007); RSA 626:8 (2007); RSA 629:1 (2007). We affirm.

The jury could have found the following facts. On June 1, 2008, at approximately 1:30 a.m., Mark Fitzpatrick heard noise coming from the right side of his home, located at 144 Pelham Road in Salem. He walked from the family room to the living room and saw his cat pacing back and forth in front of a window. He looked out the windows on the right side of his front door and observed a man crouched down looking in the window. He then turned on the outside lights and saw two other men, one of whom he later identified as the defendant, run out from between a bush and a railing near his dining room window. The defendant and two other men, Daniel Smith and Shawn Mahoney, ran past Fitzpatrick and north on Pelham Road before stopping under a streetlight, which was about a four-to-five-minute walk from the Fitzpatricks' home.

Liana Peterson, who lived across the street from where the men stopped, heard their voices through her open bedroom window. She testified that they sounded “panicky,” and heard one of the men say, “I didn't mean it; I don't know what happened.” She then heard one of them say, “we're dead, we're dead,” and a different man reply, “but we're not dead yet.” She listened to them talk for about ten to fifteen minutes, and then called the police. The men subsequently left and continued walking north on Pelham Road.

In the meantime, Fitzpatrick also called the police and went outside to look around his home. In back of his home, he found a bent window screen in the grass approximately twenty feet from the window. He also found three sets of footprints in the front yard. A Salem police detective later observed marks on the window glass from “four fingers and a thumb that [had] pushed directly upward,” and surmised that the screen had been pried off with some sort of tool.

Salem Police Officer Hicham Michael Geha responded to a report of an attempted burglary in progress and began canvassing the area on foot. He heard noise in the woods and observed the defendant, who fit the description provided by Fitzpatrick, hiding behind bushes. When Geha approached the defendant, he began running. Once Geha caught up with the defendant, he was uncooperative, verbally abusive and physically resistive to Geha's efforts to arrest him and place him in a police cruiser. The defendant was uncooperative and physically aggressive when later questioned by a detective regarding the whereabouts of any accomplices. The police also arrested Smith and Mahoney that night.

The defendant was indicted on one felony count of attempted burglary. The indictment alleged that:

1. Thomas Winward, acting in concert with and/or aided by Daniel Smith and Shawn Mahoney and with the purpose that the crime of Burglary be committed,

2. tried to gain entry to the Fitzpatrick residence, located at 144 Pelham Road,

3. an occupied structure adapted for the overnight accommodation of persons,

4. the dwelling of another at night,

5. at a time when the premises were not open to the public,

6. without license or privilege to enter,

7. by removing a window screen,

8. which, under the circumstances as Winward believed them to be, constituted a substantial step toward the commission of Burglary.

At trial, following the close of the State's case, the defendant moved to dismiss, arguing that the State had to prove that he himself removed the window screen, and had not presented sufficient evidence that he did so. The defendant further asserted that because the indictment alleged that he himself removed the screen, the court should instruct the jury that he could be convicted only if it found that he personally removed the screen. The Trial Court ( Lewis, J.) denied the motion, agreeing with the State that the indictment charged the defendant both as a principal and as acting in concert with Mahoney and Smith. Accordingly, the State did not have to prove which one of them removed the screen. The defendant argued that the court's ruling constructively amended the indictment. However, the court again determined that the indictment encompassed the activity of all three men, and, therefore, its ruling did not alter the indictment.

Prior to the close of trial, the defendant offered a proposed jury instruction that his mere presence at the scene alone was insufficient to prove accomplice liability. The court declined to give such an instruction because it was concerned about commenting on the evidence. Instead the court instructed the jury, in pertinent part:

[T]o prove that the Defendant was an accomplice to the crime of attempted burglary, the State must prove beyond a reasonable doubt that the crime of attempted burglary took place and that the Defendant was an accomplice. The State is not required to prove that a particular individual committed the crime of attempted burglary, only that the crime of attempted burglary took place and that the Defendant was an accomplice to the crime. To prove that the defendant was an accomplice, the State must prove[:]

1. That the Defendant actively helped another or other persons, or actively participated or actively assisted another or other persons, or actively attempted to help another or other persons to commit the crime of attempted burglary. Here the State alleges that the Defendant acted, in concert with and/or aided by Daniel Smith and Shawn Mahoney, in trying to gain access to the Fitzpatrick residence by removing a window screen.

During deliberations, the jury submitted a question to the court, asking: “If we believe that someone else other than the defendant remove[d] the screen, and that the defendant had no knowledge or participation of this action[,] [i]s the defendant guilty of being in concert with[?]” The court declined to specifically answer the question and referred the jury to its instruction on accomplice liability. The jury subsequently convicted the defendant and this appeal followed.

On appeal, the defendant argues that: (1) the trial court erred when it refused to instruct the jury that the State had to prove he actually removed the window screen, and in failing to give that instruction, the court constructively amended the indictment; (2) the trial court erred in refusing to instruct the jury that mere presence at the crime scene is insufficient to make a person criminally responsible; (3) the trial court erred when it refused to answer the jury's question; and (4) the evidence was insufficient to sustain his conviction.

I

The defendant first argues that the court unsustainably exercised its discretion and constructively amended the indictment when it refused to instruct the jury that the State had to prove that he himself removed the window screen. He asserts that this impermissible amendment prejudiced him in the preparation and presentation of his defense.

“The requirement that a defendant be tried only for crimes for which he or she has been indicted, see N.H. CONST. pt. I, art. 15, is not violated whenever a trial judge provides a jury instruction that does not mirror the indictment.” State v. Doucette, 146 N.H. 583, 590, 776 A.2d 744 (2001) (quotation omitted). “Instructions that alter the form of the indictment, without altering its substance, are always permissible. Jury instructions that change an element of an offense charged by a grand jury are automatically in error.” Id. (citation omitted). “In between these two extremes is the amendment that does not alter the crime charged in the indictment, but changes an allegation in the indictment that has the effect of specifying and circumscribing the scope of the crime alleged.” Id. (quotation and ellipsis omitted).

We have previously determined that an indictment charging a defendant as a principal also alleges accomplice liability because the “distinction between principal and accomplice liability for charging purposes lacks practical significance.” State v. Barton, 142 N.H. 391, 395, 702 A.2d 336 (1997). While an indictment that charges the defendant as a principal puts a defendant on notice to prepare a defense as to both principal and accomplice liability, State v. Duran, 158 N.H. 146, 151, 960 A.2d 697 (2008), we have also “consistently stated that language in an indictment alleging that a defendant acted ‘in concert with’ another is sufficient to charge the defendant both as a principal and as an accomplice,” State v. Munson, 146 N.H. 712, 716, 781 A.2d 1 (2001) (quotations and ellipsis omitted).

The defendant contends that the State had to prove that he removed the window screen. The defendant bases his argument, in part, upon a misreading of the indictment. While the defendant's brief purports to quote the indictment, the brief adds the defendant's name in two places where it does not appear in the actual indictment; specifically:

2. Mr. Winward tried to gain entry to the Fitzpatrick residence....

....

7. Mr. Winward acted by removing a window screen.

(Emphases added.)

The addition of the defendant's name is inconsistent with the plain language of the indictment. The indictment did not allege that the defendant alone removed the window screen as the defendant suggests. Instead, the indictment alleged that either the defendant himself removed the window screen or that he acted in concert with two others in removing the window screen.

As such, the indictment charged the defendant as both a principal and accomplice and the State had...