State of New Hampshire v. Angel Sanchez

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0064, State of New Hampshire v. Angel
Sanchez, the court on March 23, 2017, issued the following
order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. We affirm.

The defendant, Angel Sanchez, appeals his conviction, following a bench
trial in Superior Court (Delker, J.), on three charges of attempted witness
tampering involving three witnesses. See RSA 629:1 (2016); RSA 641:5, I
(2016). The defendant contends that “[t]he circumstantial evidence was
insufficient to prove that [he] took a substantial step toward the crime of
witness tampering or that he had a purpose to induce witnesses to withhold
testimony or absent themselves from legal proceedings.” (Capitalization
omitted.)

Viewing the evidence in the light most favorable to the State, the trial
court could have found the following facts. The defendant was charged with
crimes arising from a home invasion, which the investigating police officer
characterized as “heinous.” The primary evidence against him consisted of
three witnesses, who had been his cohorts. While incarcerated awaiting trial,
the defendant wrote and sent ten letters to gang members and others. In many
of these letters he represented himself as a member of the Latin Kings. Letters
5 and 7 each contained a second letter intended for a different recipient (letters
5B and 7B respectively). Many of the letters contained language or symbols
associated with the Latin Kings.

Letters 3 and 7 enclosed photographs of the witnesses, with their names.
In letter 6, the defendant offered to send the recipient photographs of the
witnesses. In letter 3 and letter 7B, the defendant discussed sending the
recipient copies of the witnesses’ statements acquired through discovery.
Letter 5B was addressed to a New Hampshire prison inmate and identified one
of the witnesses as being “up-state,” which meant the witness was in the New
Hampshire State Prison. Letter 9 identified the location of a second witness.
Letters 2, 3, 5, 6, 7B, 9, and 10 characterized some or all of the witnesses as
“rats” and/or “snitches.” Letters 2, 3, 5, 5B, 6, and 8 all communicated that
the State would not be able to convict the defendant without the testimony of
the three witnesses. In letter 7B, the defendant told a member of another gang
that the three witnesses were “ratting [him] out” and that the defendant was
“not writing this to look for trouble or to go to war.”
 The trial court found that, reading the letters in concert, “the only logical
conclusion is that the Defendant had the intent to get members of his own
gang, the Latin Kings, to engage in some sort of retaliation against the three
primary witnesses in this case and that he knew, if they would not testify
against him, that the case would collapse.” The trial court further found that
the defendant took a “substantial step” toward witness tampering because he
“intended to set in motion a chain of events that would cause these witnesses
not to testify against him.” The court also found that the defendant believed
that two of the witnesses were affiliated with another gang, which might take
umbrage at actions against its members, and “that’s why [the defendant] was
so desperate to . . . avoid retribution or a rival gang war.” The trial court found
the defendant guilty of attempted witness tampering, and this appeal followed.

Pursuant to RSA 641:5, I, a person is guilty of witness tampering if,
“[b]elieving that an official proceeding . . . is pending[,] . . . he attempts to
induce or otherwise cause a person to . . . [t]estify . . . falsely[,] . . . [w]ithold
any testimony[,] . . . or . . . [a]bsent himself from any proceeding.” Pursuant to
RSA 629:1, I, “[a] person is guilty of an attempt to commit a crime if, with a
purpose that a crime be committed,” he takes “a substantial step toward the
commission of the crime.”

To prevail on a challenge to the sufficiency of the evidence, a defendant
must show that no rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt, considering all the evidence and all
reasonable inferences therefrom in the light most favorable to the State. State
v. Craig, 167 N.H. 361, 369 (2015). We examine each evidentiary item in the
context of all the evidence, not in isolation. Id. Circumstantial evidence may
be sufficient to support a finding of guilt beyond a reasonable doubt. Id.
Further, the trier of fact may draw reasonable inferences from facts proved and
also inferences from facts found as a result of other inferences, provided they
can be reasonably drawn therefrom. Id. at 369-70. Because a challenge to the
sufficiency of the evidence raises a claim of legal error, our standard of review
is de novo. Id. at 370.

When the evidence as to one or more elements of the charged offense is
solely circumstantial, a defendant challenging sufficiency must establish that
the evidence does not exclude all reasonable conclusions except guilt. Id. The
proper analysis is not whether every possible conclusion consistent with
innocence has been excluded, but, rather, whether all reasonable conclusions
based upon the evidence have been excluded. State v. Germain, 165 N.H. 350,
361 (2013), abrogated on other grounds by State v. King, 168 N.H. 340, 345
(2015). “‘[T]he reviewing court evaluates the evidence in the light most
favorable to the prosecution and determines whether the alternative hypothesis
is sufficiently reasonable that a rational [fact finder] could not have found proof
of guilt beyond a reasonable doubt.’” Germain, 165 N.H. at 361-62 (quoting
State v. Captville, 448 So. 2d. 676, 680 (La. 1984)). In cases predicated upon

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circumstantial evidence, questions about the reasonableness of theories of
innocence are for the fact finder to decide. Id. at 362.

The defendant argues that “the evidence was susceptible to a reasonable
conclusion consistent with innocence.” We first address whether the evidence
was sufficient to support the trial court’s finding that the defendant took a
substantial step toward the commission of witness tampering. “‘Substantial
step’ means conduct that is strongly corroborative of the actor’s criminal
purpose.” RSA 629:1, II. The act of taking a substantial step toward the
commission of a crime consists of behavior “‘of such a nature that a reasonable
observer, viewing it in context[,] could conclude beyond a reasonable doubt
that it was undertaken in accordance with a design to violate the statute.’”
State v. Allcock, 137 N.H. 458, 461 (1993) (quoting United States v. Dworken,
855 F.2d 12, 19-20 (1st Cir. 1988)).

The defendant contends that “the evidence was insufficient to show that
[he] communicated the witnesses’ information to fellow gang members.” Letter
3 was addressed to Jose Burgos and the salutation was to “Tatuli.” It
contained the witnesses’ names and photographs and stated, “[T]hey don’t have
conclusive evidence against us, only what those three characters said.” Letter
4 was also addressed to Burgos, at the same address. Its salutation was to
“Bebo,” and it identified the recipient as a member of the defendant’s gang.

Based upon these facts, the defendant argues that

although it may be reasonable to conclude that both letters 3 and
4 were intended for the same recipient and thus, that [the
defendant] was providing information about the witnesses to a
fellow gang member, it was also reasonable to conclude that the
two letters were intended for different recipients and that the letter
related to the witnesses was not sent to a gang member.

However, like letter 4, letter 3 referred to the recipient as “little brother.” It
assured him that the defendant was not “a snitch” or “a rat” and was “loyal.”
Furthermore, in other letters the defendant addressed the recipients by
nicknames that differed from the name to which the envelope was addressed.

The defendant argues that “[i]t was common for [him] to include letters
intended for other people in his letters.” However, on the two occasions in
evidence when he did this, the defendant included instructions to each letter’s
addressee regarding what to do with the second letter. Letter 3, containing the
witnesses’ photographs, does not contain such a direction.

Although in his letters, the defendant did not overtly request that the
recipients take action against the witnesses, the trial court could have
reasonably inferred, from his repeated and emphatic statements that he would

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not be convicted without the witnesses and his efforts to identify and locate
them, that the defendant’s purpose was to encourage others to induce the
witnesses to absent themselves or alter their testimony.

The defendant argues that “merely asking someone to commit a crime is
not sufficient to prove attempted commission of the crime.” See State v. Kilgus, 128 N.H. 577, 584 (1986) (stating that solicitation of another to commit murder
does not necessarily constitute attempted murder). However, in this case, the
defendant supplied the witnesses’ names and photographs and two of the
witnesses’ locations. Cf. State v. Smith, 163 N.H. 13, 19 (2011) (finding
defendant took substantial step toward violating no-contact order when he
dialed subject’s telephone number, but call did not connect).

We conclude that, taking each evidentiary item in the context of all the
evidence and viewing the evidence in the light most favorable to the State, a
rational fact finder could have found, beyond a reasonable doubt, that the
defendant took a substantial step toward witness tampering. See Craig, 167
N.H. at 369; Germain, 165 N.H. at 361-62.

We next address whether the evidence was sufficient to support the trial
court’s finding that the defendant acted purposefully to attempt to tamper with
the witnesses. Because people rarely explain to others the inner workings of
their minds or mental processes, a culpable mental state must, in most cases,
as here, be proven by circumstantial evidence. Craig, 167 N.H. at 379. The
fact finder is entitled to infer the requisite intent from the defendant’s conduct
in light of all the circumstances in the case because conduct illuminates intent.
Id.

The defendant argues that, even if the trial court inferred that he gave
the witnesses’ names and photographs to gang members, the evidence was
insufficient to show that his purpose was to cause others to tamper with the
witnesses. He contends that “gang members are required to reveal informants”
and postulates that “he may have been informing others of the witnesses’
status so that they knew the witnesses could not be trusted.”

However, the defendant’s letters did not focus upon the witnesses’
untrustworthiness; instead, they focused upon his assertion that, without the
witnesses, the State could not convict him. In letter 2, the defendant told his
“little brother” that “[t]here are four people ratting me out, so I can’t take it to
court.” In letter 3, he told another “little brother” that “they don’t have
conclusive evidence against us, only what those three characters said.” In
letter 5, the defendant said, “[T]hey have NOTHING against us, absolutely
NOTHING . . . . The only bad thing is the 3 snitches, we will be f***ed because
of them.” In letter 5B, he told a state prison inmate that “[t]hey don’t got
nothing on me BUT there’s 3 person[s] or so pointing fingers and giving
statements” and gave one of the witnesses’ names, identifying him as being

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“up-state.” He also told the inmate that “if it wasn’t for them I got BIG chances
to win.” In letter 6, the defendant told yet another “little brother,” “The case
was built based on three snitches. . . . Other than that they have nothing
against me.” He described the witnesses, provided their names and two
witnesses’ gang affiliations, and offered to send photographs of them. In letter
8, the defendant wrote to another person, “They don’t have anything against
me. Just the 3 pathetic characters pointing at me.”

In letter 7B, addressed to “Jose Prieto Alexis, o[r] Challan, or one of
Challan’s brothers,” the defendant wrote to a member of another gang that the
witnesses were “ratting [him] out.” He informed the recipient that “the reason for
this letter is to open your eyes and that you know who your friends, colleagues
or members of your group are.” The defendant argues that the evidence does not
support that “Alexis was a member of a ‘rival’ gang” and posits that he might
have belonged to an “allied gang.” However, regardless of the relationships
between gangs, the trial court could have reasonably inferred that meeting his
obligation to “share this information so that higher ranking members can decide
what, if any, action to take,” would not have required the defendant to inform so
many people that the witnesses were indispensable to his conviction.

The defendant argues that the evidence was insufficient to show that he
“had a purpose that witness tampering be committed” because he “did not ask
anyone to contact the witnesses or to do anything to them.” He contends that
he “discussed the witnesses’ expected testimony in the context of considering
whether he should have a trial or reach a plea agreement,” and that he
“express[ed] his belief that their testimony was a given, not that his decision
about whether to go to trial may be affected by future events.”

However, the defendant repeatedly stated that the witnesses were
“ratting [him] out” and identified them as “snitches.” A gang expert testified
that “[b]eing identified as a[n] informant or a rat carries with it a stigma that is
dangerous to that person.” Furthermore, the defendant sent the witnesses’
photographs to at least two different people. He also located two of the
witnesses and informed his former cellmate of one’s location and informed a
current prison inmate that the other witness was in prison.

The defendant argues that the evidence did not support the trial court’s
finding that he intended that the inmate “act as a ‘go-between’ between himself
and his Latin King ‘brothers’ at the state prison.” However, the defendant
described a message that the inmate conveyed to him from one of the
defendant’s imprisoned “brothers.” Thus, the trial court could have reasonably
inferred that the inmate was acting as an intermediary between the defendant
and members of his gang who were incarcerated with one of the witnesses.

Several of the cases upon which the defendant relies are inapposite
because they address the sufficiency of the evidence to prove witness

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tampering, not attempted witness tampering. See State v. Carr, 167 N.H. 264,
267 (2015) (stating defendant convicted of witness tampering); Craig, 167 N.H.
at 364 (same); State v. DiNapoli, 149 N.H. 514, 515 (2003) (same); State v.
Baird, 133 N.H. 637, 638 (1990) (same). The attempt statute requires the State
to identify the intended offense, but does not require it to plead and prove the
elements of the intended offense. State v. Casanova, 164 N.H. 563, 565 (2013).
Furthermore, the fact that certain evidence has been found sufficient in a given
case does not require the State to use that evidence in every case.

The defendant quotes extensively from People v. Dubarry, 31 N.E.3d 86,
96 (N.Y. 2015). However, in that case, the State “failed to submit evidence that
defendant communicated with anyone about the witness and his possible
testimony.” Dubarry, 31 N.E.3d at 96. The court concluded that “the only
possible connection between defendant and the source of the threats [was]
defendant’s association with the Israelite congregation.” Id. at 97. In contrast,
in the case at hand, viewing the evidence in the light most favorable to the
State, the defendant communicated extensively with others about the
witnesses and their impact on his case. Cf. United States v. Rivera, 292 F.
Supp. 2d 827, 834, 837 (E.D. Va. 2003) (stating that evidence was sufficient
under Federal Rule of Evidence 804(b)(6) to admit murdered witness’s prior
statements when defendant stated that he wished to kill witness and that
“government need not proffer evidence that [defendant] was directly involved in
[witness’s] murder or that [defendant] took any affirmative steps to procure her
silence”); United States v. Irving, 682 F. Supp. 2d 243, 265 (E.D.N.Y. 2010)
(stating associate’s employment by senior attorney and presence in his office
insufficient to show associate’s participation in senior attorney’s witness
tampering schemes); Douglas v. State, 951 P.2d 651, 668-69 (Okla. Crim. App.
1997) (stating attorney-client relationship insufficient, by itself, to show
defendant authorized attorney to attempt to tamper with witness).

Taking each evidentiary item in the context of all the evidence and
viewing the evidence in the light most favorable to the State, we conclude both
that the defendant has failed to establish that the evidence does not exclude all
reasonable conclusions except guilt, and that a rational fact finder could have
found, beyond a reasonable doubt, that the defendant acted with the purpose
that the crime of witness tampering be committed. See Craig, 167 N.H. at 369;
Germain, 165 N.H. at 361-62.

Affirmed.

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

Eileen Fox,
Clerk

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