State of New Hampshire v. Colleen Carr

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough – southern judicial district
No. 2014-044

THE STATE OF NEW HAMPSHIRE

v.

COLLEEN CARR

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,
see RSA 629:2 (2007); RSA 638:20, III (2007), IV(a)(1) (Supp. 2014), and two
counts of felony witness tampering, see RSA 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 . . . ?”

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 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, see RSA 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, see
RSA 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 (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

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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 (1986). Rather, “the offense of solicitation is complete once the
request has been made.” People v. Woodard, 854 N.E.2d 674, 688 (Ill. App. Ct.
2006). The criminal solicitation statute requires the State only to identify the
solicited crime. See RSA 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. See State v. Munoz, 157 N.H. 143, 147 (2008); see also RSA 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. See RSA 629:1
(2007), :2; see also State v. Jensen, 195 P.3d 512, 517 (Wash. 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. See id. at 30. “Thus, solicitation can be viewed as an attempt to
conspire.” Id.; see also Jensen, 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. See Munoz, 157 N.H. at 147
(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

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or of accomplice to insurance fraud because those crimes had not been carried
out. State v. Johnson, 144 N.H. 175, 178 (1999). Requiring the State to prove
the elements of insurance fraud or of accomplice to insurance fraud would
force the State to prove more than is required by the criminal solicitation
statute. See Munoz, 157 N.H. at 147; see also RSA 629:2.

The indictment in this case identified the crime solicited (accomplice to
insurance fraud), the requisite mens rea (purposely), and the requisite actus
reus (soliciting). Moreover, the indictment alleges that the defendant solicited
the tenant to act as an accomplice to her insurance fraud by leaving her
apartment so that “another” could burn down the building and the defendant
“could collect the insurance proceeds.” Because it contains the elements of the
offense and enough facts to notify the defendant of the charge, we hold that it
is constitutionally adequate. See Ericson, 159 N.H. at 384.

B. Jury Instructions

The defendant next asserts that the trial court erred by declining to give
the jury her proposed instructions on criminal solicitation and entrapment.
Whether a particular jury instruction is necessary, and the scope and wording
of jury instructions, are within the sound discretion of the trial court. State v.
Furgal, 164 N.H. 430, 435 (2012). We review the trial court’s decisions on
these matters for an unsustainable exercise of discretion. Id. To show that the
trial court’s decision is not sustainable, the defendant must demonstrate that
the court’s ruling was clearly untenable or unreasonable to the prejudice of her
case. Id.

When reviewing jury instructions, we evaluate allegations of error by
interpreting the disputed instructions in their entirety, as a reasonable juror
would have understood them, and in light of all the evidence in the case. Id. at
434. The trial court is not required to use the specific language requested by
the defendant. Id. Rather, the purpose of the trial court’s charge is to state
and explain to the jury, in clear and intelligible language, the rules of law
applicable to the case. Id. We determine whether the jury instructions
adequately and accurately explain each element of the offense and reverse only
if the instructions did not fairly cover the issues of law in the case. Id. at 434-
35.

1. Criminal Solicitation

The defendant’s arguments regarding the criminal solicitation jury
instruction stem from her mistaken belief that, to convict her of criminal
solicitation, the jury had to find all of the elements of insurance fraud and
accomplice to insurance fraud. For instance, she argues that the trial court
did not “break out” the “required elements” of the crime of insurance fraud.
Similarly, she asserts that the trial court failed to instruct the jury that, to

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convict the defendant, it had to establish that “[the tenant] knew that there was
an insurance policy,” “that a false or misleading statement would have been
prepared and submitted to an insurance company,” and that she “would have
assisted with that statement.” However, as we have explained, to convict the
defendant of criminal solicitation, the State was not required to prove the
elements of insurance fraud or accomplice to insurance fraud. Accordingly, the
defendant’s arguments fail to demonstrate that the trial court’s criminal
solicitation instruction constituted an unsustainable exercise of discretion.

2. Entrapment

The defendant next faults the trial court for failing to instruct the jury
about her entrapment defense to the witness tampering charges. For a
defendant to be entitled to an instruction on a specific defense, there must be
some evidence to support a rational finding in favor of that defense. State v.
Mendola, 160 N.H. 550, 555 (2010). “‘Some evidence’ means more than a
minutia or scintilla of evidence.” Id. (quotation omitted). “To be more than a
scintilla, evidence cannot be vague, conjectural, or the mere suspicion about
the existence of a fact, but must be of such quality as to induce conviction.”
Id. at 555-56 (quotation omitted). “Where there is simply no evidentiary basis
to support the theory of the requested jury instruction, the party is not entitled
to such an instruction, and the trial court may properly deny the party’s
request.” Id. at 556 (quotation omitted).

Entrapment is an affirmative defense, upon which the defendant bears
the burden of proof:

It is an affirmative defense that the actor committed the offense
because he was induced or encouraged to do so by a law enforcement
official or by a person acting in cooperation with a law enforcement
official, for the purpose of obtaining evidence against him and when the
methods used to obtain such evidence were such as to create a
substantial risk that the offense would be committed by a person not
otherwise disposed to commit it. However, conduct merely affording a
person an opportunity to commit an offense does not constitute
entrapment.

RSA 626:5 (2007).

To be entitled to an instruction on this defense, a defendant must point
to “some evidence” that: (1) law enforcement officials induced or encouraged
the defendant to commit the offense; and (2) the defendant was not
predisposed to engage in it. Mendola, 160 N.H. at 556. Inducement is
something more than “merely affording a person an opportunity to commit an
offense.” RSA 626:5; see Mendola, 160 N.H. at 556. Rather, “[a]n inducement
consists of an ‘opportunity’ plus something else – typically, excessive pressure

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by the government upon the defendant or the government’s taking advantage of
an alternative, non-criminal type of motive.” Mendola, 160 N.H. at 556
(quotation omitted). “An inducement, by its very nature, contemplates more
than a request and an affirmative response.” Id. (quotation omitted). “It is
more than a solicitation. It is more even than a successful solicitation.” Id.
(quotation omitted).

The defendant argues that she was entitled to an entrapment instruction
because Kelleher, acting at the behest of the police, lied to her during the
recorded calls. However, the defendant has made no showing that Kelleher’s
lies regarding his contact with the police induced her to commit witness
tampering in which she was not otherwise predisposed to engage. Thus, the
evidence, without more, does not constitute “some evidence” that would
support a rational finding that the defendant was induced by law enforcement
to commit witness tampering. See id. The defendant’s failure to produce
“some evidence” that she was induced to commit the charged offenses by law
enforcement officials is fatal to her claim that she was entitled to a jury
instruction on entrapment. See id. at 557. Accordingly, we need not address
the sufficiency of the defendant’s proof that she was not predisposed to commit
the charged offenses. See id.

C. Motion to Dismiss Second Witness Tampering Conviction

The defendant next asserts that the trial court erred by denying her
motion to dismiss the second witness tampering conviction on double jeopardy
grounds. The first witness tampering charge alleged that the defendant,
“believing that an official investigation was pending or about to be instituted,
. . . purposely attempted to induce or otherwise cause . . . Kelleher to inform
falsely to the Milford Police Department” when she told Kelleher “words to the
effect of”: “‘Tell them you don’t know anything,’” and “‘She threatened it, okay.’”
(Emphasis added.) See RSA 641:5, I(a). The second witness tampering charge
alleged that the defendant “believing that an official investigation was pending
or about to be instituted, . . . purposely attempted to induce or otherwise cause
. . . Kelleher to withhold information to the Milford Police Department” when
she told him “words to the effect of”: “‘[T]ell them you don’t know anything.’”
(Emphasis added.) See RSA 641:5, I(b). She contends that because both
indictments alleged that she told Kelleher, “Tell them you don’t know
anything,” the trial court violated her State constitutional guarantee against
double jeopardy by imposing sentences for both charges. See N.H. CONST. pt.
I, art. 16. The defendant does not advance an argument under the Federal
Constitution.

The State counters that each indictment concerned a separate telephone
call between the defendant and Kelleher. The State argues that the first
witness tampering charge concerned the first telephone call, and the second
witness tampering charge concerned the second telephone call. The State also

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observes that each charge concerned a different statutory variant of witness
tampering. The first charge alleged that the defendant induced Kelleher to
“inform falsely,” see RSA 641:5, I(a), while the second charge alleged that she
induced Kelleher to “withhold information,” see RSA 641:5, I(b).

The issue of double jeopardy presents a question of constitutional law,
which we review de novo. State v. Fischer, 165 N.H. 706, 715 (2013). Part I,
Article 16 of the New Hampshire Constitution protects against “successive
prosecutions for the same offense after acquittal or after conviction, and
against multiple punishments for the same offense.” State v. Glenn, 160 N.H.
480, 486 (2010) (quotation omitted). “For the purpose of double jeopardy
analysis, two charged offenses cannot be regarded as the same offense if they
do not arise out of the same act or transaction.” Fischer, 165 N.H. at 715
(quotation omitted); see also Blockburger v. United States, 284 U.S. 299, 304
(1932); cf. State v. Matey, 153 N.H. 263, 270-71 (2006) (deciding whether two
offenses are the “same” for right to counsel purposes).

Here, the defendant was charged with witness tampering during two
separate telephone conversations. In one conversation, the subject of the first
witness tampering charge, the defendant told Kelleher to tell the police that he
did not “know anything” and to tell them that the tenant “threatened it.” In
another conversation, which the defendant initiated, the subject of the second
witness tampering charge, the defendant told Kelleher to tell the police that he
knew “nothing” and that he “didn’t hear nothing.” The fact that, in each
conversation, the defendant told Kelleher to tell the police that he did not know
anything about the planned arson, does not establish that the defendant’s
conduct during separate telephone calls arose out of the same act or
transaction. See Fischer, 165 N.H. at 715 (concluding that the fact that an
assault in the living room and a later assault in the kitchen “resulted in
injuries to the victim’s head and neck does not establish that they arose out of
the same act or transaction”). Because the charges arose out of separate
transactions, we conclude that the defendant was not subjected to multiple
punishments for the same offense and, consequently, that her right against
double jeopardy under the State Constitution was not infringed. See id.

D. Sufficiency of the Evidence

The defendant next contends that the evidence was insufficient to convict
her of criminal solicitation and witness tampering. “When considering a
challenge to the sufficiency of the evidence, we objectively review the record to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” State v. Saunders, 164
N.H. 342, 351 (2012) (quotation omitted). We consider “all the evidence and all
reasonable inferences therefrom in the light most favorable to the State.” Id.
(quotation omitted). “[T]he defendant . . . bears the burden of demonstrating
that the evidence was insufficient to prove guilt.” Id. (quotation omitted).

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 1. Criminal Solicitation

To convict the defendant of felony criminal solicitation, the State had to
prove, beyond a reasonable doubt, that, with the purpose “to collect insurance
proceeds greater than $1500,” she “solicit[ed] another person to engage in
conduct constituting the crime of insurance fraud,” intending that the person
act “as an accomplice.” See RSA 629:2 (defining crime of criminal solicitation);
see also RSA 638:20, III (defining crime of accomplice to insurance fraud), IV(a)
(providing that insurance fraud is a class A felony “if the value of the
fraudulent portion of the claim for payment . . . pursuant to an insurance
policy is more than $1,500”).

The defendant argues that the evidence was insufficient to convict her of
criminal solicitation in part because the State failed to prove the elements of
the solicited crime, here accomplice to insurance fraud. As previously
discussed, that was not the State’s burden.

The defendant also argues that there was no evidence to support a jury
finding that her purpose was to collect insurance proceeds that exceeded
$1,500. We disagree. An employee of the defendant’s insurance company
testified that, had the defendant’s building burned “down to the ground with a
total loss, . . . the claim could have been $403,000.” Moreover, there was
evidence that the tenant told others that the defendant’s purpose was to collect
$403,000 in insurance proceeds by having the building burned down. The
tenant testified that the defendant told her “[t]hat she was broke” and that
“[s]he wanted to torch the building to get the insurance money.” Viewing the
evidence and all reasonable inferences therefrom in the light most favorable to
the State, we conclude that a rational juror could have found, beyond a
reasonable doubt, that the defendant acted with a purpose to collect insurance
proceeds that exceeded $1,500.

Finally, the defendant contends that the evidence was insufficient to
convict her of criminal solicitation because, at trial, the tenant “had serious
trouble remembering” certain facts and Kelleher’s testimony was internally
inconsistent. The tenant’s memory difficulties and Kelleher’s inconsistent
testimony were factors for the jury to consider in assessing their credibility.
See State v. Hodgdon, 143 N.H. 399, 404 (1999). “The jury is free to accept or
reject any portion of a witness’s testimony and to resolve any conflicts in
testimony.” Id. “Credibility determinations are within the sole province of the
jury and will be upheld on appeal unless no rational trier of fact could have
reached the same conclusion.” Id. Here, we cannot say that no rational juror
could have found the tenant and Kelleher to be credible witnesses.
Accordingly, this argument, like the defendant’s other arguments regarding the
sufficiency of the evidence of criminal solicitation, is unavailing.

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 2. Witness Tampering

To convict the defendant of the first witness tampering charge, the State
had to prove, beyond a reasonable doubt, that, “believing that an official
investigation [was] pending or about to be instituted, she purposely attempted
to induce or otherwise cause . . . Kelleher to inform to the Milford Police
Department falsely” by telling him “words to the effect of . . . , “‘Tell them you
don’t know anything,’” and . . . ‘She threatened it, okay?’” See RSA 641:5, I(a).
The defendant argues that the evidence was insufficient to convict her of this
charge because there is no evidence that she “attempted to influence Kelleher
. . . to say something that wasn’t true.” In so arguing, the defendant views the
evidence in the light most favorable to her. However, we must view the
evidence in the light most favorable to the State. See Saunders, 164 N.H. at
351. When we do so, we conclude that a rational juror could have found,
beyond a reasonable doubt, that when the defendant instructed Kelleher to tell
the police that he knew nothing about her arson plan and that the tenant had
threatened to burn down the building, she was purposely attempting to induce
him to lie to the police.

To the extent that the defendant argues that the evidence was also
insufficient to convict her of the second witness tampering charge, she has
failed to develop this argument sufficiently for our review. All issues raised in
the defendant’s notice of appeal, which she did not brief, are deemed waived.
See In re Estate of King, 149 N.H. 226, 230 (2003).

Affirmed.

DALIANIS, C.J., and CONBOY, LYNN, and BASSETT, JJ., concurred.

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