State of New Hampshire v. Ernesto Rivera

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0007, State of New Hampshire v. Ernesto
Rivera, the court on July 2, 2024, issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The
defendant, Ernesto Rivera, was convicted in Superior Court (Garfunkel, J.) on
two counts of being a felon in possession of a gun, four counts of solicitation of
witness tampering, and one count of possession of cocaine with intent to
distribute. On appeal, the defendant argues: (1) that the trial court erred by
denying his motion to sever the charges; and (2) that the recording of four
convictions and imposition of four sentences for solicitation of witness
tampering violated the defendant’s double jeopardy rights and constituted plain
error. We reverse and remand.

The record supports the following relevant facts. On May 5, 2013, the
defendant, who was a convicted felon, and his friend Chantal Guertin took a
gun safety class in Hudson, during which the defendant practiced shooting
using Guertin’s gun. On May 13, Guertin purchased a gun in Merrimack,
filling out a firearm transaction record stating that she was the actual buyer of
the firearm, but in fact the purchase was made for the defendant. Later that
day the defendant took possession of the gun.

In August 2013, Guertin contacted the Nashua Police Department to
inform them that she had purchased a gun for the defendant. Officer
Hannigan obtained a statement from Guertin regarding that purchase. Based
upon the information that Guertin provided, the Nashua police obtained a
search warrant for the residence in Hudson, where the defendant lived together
with Elvira Kersey. On August 20, Kersey arrived home to find the police
searching the house. They seized a safe from the master bedroom, and told
Kersey that they were looking for a gun, but had not found one. Thinking the
gun might be in the safe, the police obtained a search warrant to open the safe.
Inside they found 44 grams of cocaine.

On August 23, the defendant called Kersey, told her there was a gun in
the house and where it was located, and directed her to find it and “[t]ake it off
the house.” Kersey thereafter found the gun, and reported its location to the
police, who obtained a search warrant, returned to the house, and seized the
gun.
 In December 2013, while incarcerated at the Hillsborough County House
of Corrections, the defendant placed several telephone calls that resulted in the
four charges of solicitation of witness tampering. The first charge arose from
two calls made on December 9 to his friend Rene Lavoie, in which the
defendant allegedly asked him to speak with Kersey in order to induce her to
recant. The second charge arose from a call made to Lavoie on December 10,
in which the defendant again allegedly asked him to speak with Kersey in order
to induce her to recant. The third and fourth charges arose from a single call
made to Katherine Vitale on December 11. The defendant allegedly asked
Vitale: (1) to “introduc[e]” Lavoie to Kersey’s residence so that Lavoie could
speak with Kersey in order to induce her to recant; and (2) to transport Lavoie
to Kersey’s residence so that Lavoie could speak with Kersey in order to induce
her to recant.

Prior to trial, the defendant sought to sever the charges. The Superior
Court (Temple, J.) ruled that the seven charges at issue in this appeal could be
tried together.1

On appeal, the defendant argues that the trial court erred by failing to
sever the two felon in possession charges both from the drug and witness
tampering charges and from each other. He also argues that double jeopardy
prevents the entry of four convictions for solicitation of witness tampering,
asserting that only one conviction could be entered. Acknowledging that the
double jeopardy issue was not raised in the trial court, the defendant raises it
now as plain error. See Sup. Ct. R. 16-A.

Joinder of charges is governed by New Hampshire Rule of Criminal
Procedure 20. If offenses are unrelated, they may be joined only with the
defendant’s consent. See N.H. R. Crim. P. 20(a)(3).2 Offenses are related if
they:

1 The defendant’s motion to sever stated that the defendant stood accused of: (1) criminal

threatening and five simple assaults with an incident date of July 21, 2013; (2) six simple
assaults with an incident date of August 30, 2013; (3) two counts of possession with intent to
distribute with incident dates of July 21, 2013 and August 20, 2013; (4) one count of felon in
possession and armed career criminal with an incident date of May 5, 2013; (5) one count of
felon in possession and armed career criminal with an incident date of August 23, 2013; (6)
one count of felon in possession and armed career criminal with an incident date of May 13,
2013; and (7) seven counts of witness tampering with incident dates ranging from November
27, 2013 to February 19, 2014. The defendant sought to sever the indictments so that there
would be seven separate trials. The trial court granted the motion in part and denied it in part,
ruling that three separate jury trials would be scheduled. The seven charges here on appeal
were joined as one of those three trials.
2 At the time of trial, the joinder rule in effect was former Superior Court Rule 97-A. See State

v. Rivera, 175 N.H. 496, 497-98 (2022). The relevant provisions of Rule 97-A are identical to
the corresponding provisions of the current rule, New Hampshire Rule of Criminal Procedure
20. Because both rules use the same language, we refer to and rely upon the current rule,
Rule 20, in this order. See id.

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 (A) Are alleged to have occurred during a single criminal episode; or
(B) Constitute parts of a common scheme or plan; or
(C) Are alleged to have occurred during separate criminal episodes, but
nonetheless, are logically and factually connected in a manner that does
not solely demonstrate that the accused has a propensity to engage in
criminal conduct.

N.H. R. Crim. P. 20(a)(1). If offenses are related, they shall be joined “unless
the trial judge determines that joinder is not in the best interests of justice.”
N.H. R. Crim. P. 20(a)(2). The parties agree that we should review the trial
court’s ruling on joinder for an unsustainable exercise of discretion. To show
the trial court’s decision is unsustainable, the defendant must demonstrate
that the ruling was clearly untenable or unreasonable to the prejudice of his
case. State v. Brown, 159 N.H. 544, 550 (2009).

We begin by considering whether the felon in possession charge arising
from the gun safety class (the gun safety charge) should have been severed
from the other charges. In denying the defendant’s motion to sever, the trial
court relied upon Rule 20(a)(1)(C), concluding that the charges were logically
and factually connected in a manner that did not solely demonstrate that the
accused had a propensity to engage in criminal conduct. In Brown, we
explained:

[W]hether offenses that occur during separate criminal episodes are
logically and factually connected in a manner that does not solely
demonstrate that the accused has a propensity to engage in criminal
conduct is largely determined by the close relationship among the
offenses with respect to both the underlying charged conduct and the
evidence to be used to prove the charges. The following factors will aid in
discerning whether charges arising from separate criminal episodes are
related: (1) the temporal and spatial relationship among the underlying
charged acts; (2) the commonality of the victim(s) and/or participant(s)
for the charged offenses; (3) the similarity in the defendant’s mode of
operation; (4) the duplication of law regarding the crimes charged; and
(5) the duplication of witnesses, testimony and other evidence related to
the offenses.

No single factor is dispositive on the question of relatedness.

Id. at 551-52 (quotations and citations omitted).

Here, we note that the gun safety charge involved a different gun
possessed at a different time and place from the other charges. With respect to
the defendant’s “mode of operation,” the gun safety charge involved his
temporary possession of a gun owned by another in the public setting of a gun
safety class — we find little similarity between this and the defendant’s mode of

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operation regarding any of the other charges. Although the gun safety charge
involved a duplication of law with respect to the other gun charge, there was no
duplication of law with respect to the drug and witness tampering charges.
Finally, the testimony of at least five of the State’s witnesses related solely to
the gun safety charge. The only “overlap” witness who offered substantial
testimony both on the gun safety charge and other charges was Guertin. After
considering all of the Brown factors, we agree with the defendant that the trial
court unsustainably exercised its discretion when it concluded that the gun
safety charge was related to the other charges.

We reach a different result, however, with respect to the felon in
possession charge related to the defendant’s possession of a gun that Guertin
had purchased on May 13 (the May 13 gun charge). It was primarily Guertin’s
statements to the police regarding this event that provided the probable cause
for the search of the defendant’s residence that led to the discovery of the
cocaine. The gun and cocaine were both found in the defendant’s home. There
would be greater duplication of witnesses, testimony, and other evidence were
the May 13 gun charge to be severed from the drug and witness tampering
charges. The defendant’s attempts to solicit others to urge Kersey to recant
related to testimony that Kersey would provide regarding the gun that was the
subject of the May 13 gun charge. After considering all of the Brown factors,
we conclude that the defendant has failed to demonstrate that the trial court
unsustainably exercised its discretion by concluding that the May 13 gun
charge was related to the other charges.

The defendant argues, in the alternative, that even if the May 13 gun
charge is related to the drug charge, the trial court erred in failing to sever it in
the best interests of justice. Rule 20(a)(2) provides that when a party moves for
joinder of related offenses, the trial judge “shall join the charges for trial unless
the trial judge determines that joinder is not in the best interests of justice.”
N.H. R. Crim. P. 20(a)(2).

Under this “best interests of justice” standard, charges should be
tried separately whenever it is deemed appropriate to promote a fair
determination of the defendant’s guilt or innocence — in essence, when
conducting a single trial would jeopardize the defendant’s right to a fair
trial. In making a “best interests of justice” determination, trial courts
must evaluate whether, in view of the number of offenses charged and
the complexity of the evidence to be offered, the trier of fact will be able
to distinguish the evidence and apply the law intelligently to each
offense. The “best interests of justice” inquiry may also involve
consideration of other factors, including whether: some charges are likely
to unusually inflame the jury against the defendant; the evidence in
support of some offenses is weak while the proof of others is strong; the

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 defendant’s available defenses for different crimes are inconsistent; or
the defendant wishes to testify as to one offense but not as to others.

Rivera, 175 N.H. at 502 (quotations and brackets omitted).

After considering the defendant’s arguments in light of the relevant
factors to be considered under the “best interests of justice” standard, we are
unpersuaded that joining these charges jeopardized the defendant’s right to a
fair trial.

Next, we consider the defendant’s arguments that the trial court
committed plain error by recording four convictions and imposing four
sentences for solicitation of witness tampering. “To find plain error: (1) there
must be an error; (2) the error must be plain; (3) the error must affect
substantial rights; and (4) the error must seriously affect the fairness, integrity
or public reputation of judicial proceedings.” State v. Russell, 159 N.H. 475,
489 (2009) (quotation omitted). The defendant argues that the four
indictments for solicitation of witness tampering allege a single offense, and
therefore the multiple convictions and sentences violate the double jeopardy
protections of the State and Federal Constitutions. See N.H. CONST. pt. I, art.
16; U.S. CONST. amends. V, XIV. The parties agree that this case presents a
“unit of prosecution” question. See State v. Ramsey, 166 N.H. 45, 51 (2014).

As noted above, the four indictments involved telephone calls made by
the defendant on December 9 and 10, 2013 to Lavoie, and on December 11,
2013 to Vitale. The defendant argues that all four charges involved a single
effort to influence the testimony of the same witness — Kersey — in the same
proceeding, and therefore constitute a single unit of prosecution. The variant
of witness tampering at issue here is set forth in RSA 641:5, I(a) (2016), and
prohibits, in relevant part, “attempt[ing] to induce or otherwise cause a person
to . . . [t]estify or inform falsely.” RSA 629:2, I (2016), in turn, provides that 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.”

The defendant argues that the evil the legislature intended to criminalize
is the attempt to induce a witness not to testify or to testify falsely. Therefore,
he argues, the number of attempts to induce a witness is secondary to that
aim. The State responds that the unit of prosecution is each act of solicitation.

“Because the substantive power to prescribe crimes and determine
punishments is vested with the legislature, the question under the Double
Jeopardy Clause whether punishments are ‘multiple’ is essentially one of
legislative intent.” State v. Martinko, 171 N.H. 239, 245 (2018) (quotation
omitted). The defendant concedes that we have not previously addressed the
question of the unit of prosecution for solicitation. “When the law is not clear

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at the time of trial and remains unsettled at the time of appeal, a decision by
the trial court cannot be plain error.” State v. Panarello, 157 N.H. 204, 209
(2008). Accordingly, we conclude that the defendant has not shown that
treating the events on December 9, 10, and 11 as separate units of prosecution
constituted plain error.3

Lastly, however, we agree with the defendant that his two convictions
and sentences arising out of the single phone call on December 11 to Vitale
constitute plain error. In that phone call, the defendant urged Vitale to contact
Lavoie, and stated:

you . . . guys can meet up where you can bring him to show him around
the yard — the house and also call [Kersey] so . . . she don’t get . . .
startled . . . send her a text or a call and say hey you know I’m gonna be
with . . . one of Ernie’s friends – don’t be startled if you see . . . us or if
this guy is gonna talk to you not to be afraid you know . . . and let her
know that . . . he really wants to get me out and help me out so . . . it’s
very . . . crucial that . . . we put something together with this guy.

One indictment based on this phone call alleged that the defendant requested
that Vitale “promote or facilitate the commission of the crime of Witness
Tampering by introducing . . . Lavoie to . . . Kersey’s residence so . . . Lavoie
could speak with . . . Kersey in order to induce her to recant her statement and
inform falsely,” while the second indictment alleged that the defendant
requested that Vitale “promote or facilitate the commission of the crime of
Witness Tampering by transporting . . . Lavoie to . . . Kersey’s residence so . . .
Lavoie could speak with . . . Kersey in order to induce her to recant her
statement and inform falsely.” (Emphases added.)

“To determine whether charged offenses violate the double jeopardy
protections of our State Constitution in unit of prosecution cases, we examine
whether proof of the elements of the crimes as charged will require a difference
in evidence.” State v. Woodbury, 172 N.H. 358, 368 (2019) (quotation omitted).
We agree with the defendant that proof of the elements of these two offenses as
charged, one alleging that the defendant asked Vitale to introduce Lavoie to
Kersey’s residence while the other alleges that the defendant asked Vitale to
transport Lavoie to Kersey’s residence, would not require a difference in
evidence. We further conclude that the error was plain, affected substantial
rights, and seriously affected the fairness, integrity or public reputation of
judicial proceedings.

3 Although we find no plain error with respect to treating the events of December 9, 10, and 11

as separate units of prosecution, we express no opinion as to whether doing so constitutes
error. The parties may address that issue on remand.

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 Because we conclude that the trial court erred by joining the gun safety
charge with the other charges, and because the State has not argued harmless
error, we reverse the defendant’s convictions and remand. See State v. Brown, 156 N.H. 440, 445 (2007); State v. Morrill, 154 N.H. 547, 553 (2006); State v.
Kirsch, 139 N.H. 647, 656 (1995). On remand, however, the defendant may
not again be convicted and sentenced on both indictments arising out of the
December 11 phone call.

Reversed and remanded.

BASSETT and COUNTWAY, JJ., concurred; NADEAU J., retired superior
court chief justice, specially assigned under RSA 490:3, II, concurred; HANTZ
MARCONI, J., sat for oral argument but subsequently disqualified herself and did
not participate in further review of the case.

Timothy A. Gudas,
Clerk

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