State v. Heredia

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-northern judicial district
Case No. 2021-0460
Citation: State v. Heredia, 2024 N.H. 31

THE STATE OF NEW HAMPSHIRE

v.

CHASRICK HEREDIA

Argued: October 17, 2023
Opinion Issued: June 13, 2024

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Audriana Mekula, assistant attorney general, on the brief and orally),
for the State.

Thomas Barnard, deputy chief appellate defender, of Concord, on the
brief and orally, for the defendant.

BASSETT, J.

¶1 The defendant, Chasrick Heredia, appeals his convictions, following
a jury trial in Superior Court (Messer, J.), on three counts of accomplice to
contributing to the delinquency of a minor, see RSA 169-B:41, I (2022); RSA
626:8 (2016), and one count of witness tampering, see RSA 641:5, I (2016),
arguing that the evidence was insufficient to support those convictions. He
also challenges the witness tampering conviction on double jeopardy grounds,
arguing that witness tampering constituted the same offense as solicitation to
commit falsifying physical evidence, of which he was also charged and
convicted. He does not challenge that conviction on appeal. See RSA 641:6
(2016); RSA 629:2 (2016). We vacate the witness tampering conviction on
double jeopardy grounds, reverse the three convictions for accomplice to
contributing to the delinquency of a minor, and remand.

¶2 The jury could have found the following facts. On July 23, 2019,
three female juveniles — A, B, and C — then aged 16, 15, and 15, respectively,
were residing at Granite Pathways, a substance abuse treatment facility for
adolescents. That night, they ran away from Granite Pathways with the intent
to obtain cigarettes and/or alcohol. They went to a convenience store and
began asking people to buy cigarettes for them. Eventually, a man who looked
to be in his mid-twenties agreed. They told the man, later identified as
Matthew Hugle, that they had run away from their treatment center, and asked
for a ride to Market Basket, where they hoped to steal alcohol. Hugle agreed to
give the girls a ride, but told them he needed to pick up a friend on the way.

¶3 Hugle picked up the defendant, and the girls again stated that they
had run away from “rehab.” They reiterated their plan to go to Market Basket,
and the defendant said that he would buy them alcohol instead. They stopped
at a convenience store, where the defendant purchased six “Natty Daddy” tall
beers and gave them to the girls. Although the testimony differed as to
whether the girls told the defendant that they were older than they actually
were, the defendant, who testified in his own defense, admitted he knew they
were not 21.

¶4 Hugle and the defendant then dropped the girls off at an apartment
complex where they sat outside drinking the beer while the men went out to a
bar. Hugle and the defendant later returned to the apartment complex and
went to the complex’s clubhouse with the girls. There, the defendant had sex
with A, and Hugle had sex with A, B, and C. B testified that the defendant also
had sex with her, but the defendant testified that he did not engage in sexual
activity with either B or C. The defendant admitted to recording a video on his
cellphone of himself digitally penetrating A and testified that the video also
captured B approaching him with no clothing on.

¶5 Later that night, the defendant and Hugle dropped the girls off near
Granite Pathways. Although B got back into the car and left with the men, A
and C went into the treatment facility and reported that two men had given
them alcohol and engaged them in sexual activity. B was located the next day.

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 [¶6] The defendant was charged with a number of offenses. He was
charged with aggravated felonious sexual assault (AFSA) for knowingly
engaging in sexual intercourse with A when she was physically helpless to
resist, and five counts of felonious sexual assault (FSA) for various alleged
sexual acts with B. He was also charged, in three criminal complaints worded
identically except for the name and date of birth of the specified minor, with
being an accomplice to contributing to the delinquency of a minor.

¶7 While in jail prior to trial, the defendant wrote an encoded letter to
Hugle. In the letter, which was introduced as a full exhibit, the defendant
asked Hugle to call the defendant’s boss, Max, and told Hugle that the
defendant’s mother had Max’s number. The letter also contained a number of
misspelled words. The defendant then called Hugle from jail, told Hugle that
he was sending him a letter and that he wanted Hugle to proofread the letter
and underline the misspelled words. Recordings of the defendant’s calls to
Hugle were also submitted at trial as full exhibits. The jury could have found
that underlining the letter’s misspelled words and then reading only the
underlined words would reveal the following hidden message: “Max get the
password to his Gmail . . . Google photos delete videos.” (Email address
deleted.) Based on these communications from jail, the defendant was then
charged with additional counts of tampering with witnesses and informants,
and solicitation to commit falsifying physical evidence.

¶8 At trial, the court granted the defendant’s motion to dismiss one of
the FSA charges involving B. The jury acquitted the defendant on the
remaining FSA charges involving B and the AFSA charge involving A. The jury
convicted the defendant on the three charges of accomplice to intentional
contribution to the delinquency of a minor, one count of witness tampering,
and one count of solicitation to commit falsifying physical evidence. This
appeal followed.

¶9 On appeal, the defendant does not challenge his conviction for the
crime of solicitation to commit falsifying physical evidence. Rather, he
challenges his conviction for witness tampering and his convictions on three
counts of accomplice to contributing to the delinquency of a minor.

¶10 We turn first to the defendant’s challenge to his conviction on the
witness tampering charge. He argues that there was insufficient evidence to
convict him on the witness tampering charge, and that his state and federal
constitutional rights to be free from double jeopardy were violated by the
separate convictions and sentences for witness tampering and solicitation to
commit falsifying physical evidence. See N.H. CONST. pt. I, art. 16; U.S.
CONST. amends. V, XIV. Because, for the reasons set forth below, we agree
with the defendant that his separate convictions and sentences for both
witness tampering and solicitation to commit falsifying physical evidence

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violate the prohibition against double jeopardy under the State Constitution,
we need not address his sufficiency challenge.

¶11 “The issue of double jeopardy presents a question of constitutional
law, which we review de novo.” State v. Glenn, 167 N.H. 171, 178 (2014). We
first address the defendant’s claim under the State Constitution and rely upon
federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983).
The defendant’s double jeopardy challenge raises a “double-description” issue.
See State v. Lynch, 169 N.H. 689, 706 (2017) (explaining that in the “so-called
‘double-description’ cases, . . . the issue is whether two statutes describe two
separate offenses or are merely different descriptions of the same offense”
(quotation omitted)). One example of a double-description violation is
conviction on “both a lesser-included offense and the greater offense [when]
both offenses derive from the same criminal act.” State v. McKean, 147 N.H.
198, 200 (2001); see State v. Lucius, 140 N.H. 60, 67 (1995).

¶12 The test in double-description cases under the State Constitution,
“which we have referred to as the ‘same evidence’ test, provides: Two offenses
will be considered the same for double jeopardy purposes unless each requires
proof of an element that the other does not.” State v. Locke, 166 N.H. 344, 351
(2014) (quotation omitted). “We focus upon whether proof of the elements of
the crimes as charged will in actuality require a difference in evidence.” Id. “In
making this inquiry, we review and compare the statutory elements of the
charged offenses in light of the actual allegations contained in the
indictments.” State v. Farr, 160 N.H. 803, 807 (2010) (quotation omitted).

¶13 The offense of witness tampering is defined in RSA 641:5, which
provides, in relevant part:

A person is guilty of a class B felony if:

I. Believing that an official proceeding, as defined in RSA 641:1, II,
or investigation is pending or about to be instituted, he attempts to
induce or otherwise cause a person to:

...

(b) Withhold any testimony, information, document or thing . . . .

RSA 641:5 (2016). As charged in the indictment, the State had to prove
that the defendant:

did commit the crime of Tampering with Witnesses and Informants
in that Chasrick Heredia, believing that an official investigation as
defined in RSA 641:1, II, was pending, knowingly attempted to

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 induce or otherwise cause a person, specifically Matthew Hugle, to
withhold any information when he wrote Hugle a letter and
requested that Hugle delete information from any electronic device
or any electronic communication service, that constituted evidence
related to the official investigation.1

(Bolding omitted.)

¶14 The offense of falsifying physical evidence is defined in RSA 641:6,
which provides, in relevant part:

A person commits a class B felony if, believing that an official
proceeding, as defined in RSA 641:1, II, or investigation is pending
or about to be instituted, he:

I. Alters, destroys, conceals or removes any thing with a purpose to
impair its verity or availability in such proceeding or investigation .
..

RSA 641:6 (2016). The criminal solicitation statute provides, in relevant part,
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.” RSA 629:2, I. As charged in
the indictment, in order to convict the defendant for the crime of solicitation to
commit falsifying physical evidence, the State had to prove that the defendant,
“with the purpose that another, specifically Matthew Hugle, engage in conduct
constituting the crime of Falsifying Physical Evidence as defined in RSA 641:6,
solicited Hugle to delete information relevant to a pending criminal
prosecution.” (Bolding omitted.)

¶15 The defendant, although acknowledging “that solicitation to falsify
physical evidence requires proof of some elements that are not required by
witness tampering,” argues that if the conduct alleged in the witness tampering
indictment constitutes witness tampering under the statute, proof of that
charge did “not require proof of any element that solicitation to falsify physical
evidence [did] not also require.” In other words, he argues that, as charged in

1 We observe that the witness tampering indictment does not precisely track the language of

RSA 641:5. The indictment uses the language “official investigation as defined in RSA 641:1,
II” (bolding omitted) rather than the statutory language “an official proceeding, as defined in
RSA 641:1, II, or investigation,” RSA 641:5. Both parties appear to assume that the indictment
contains the missing statutory language. The defendant argues that “[b]oth indictments
required the State to prove that Heredia believed that an official proceeding or investigation was
pending or about to be instituted.” The State argues that “[t]he witness tampering charge
required the State to prove that the defendant attempted to induce or cause Hugle to withhold
information from an official proceeding.” As neither party argues that the discrepancy between
the indictment and the statute is of any consequence, we take no further note of it.

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this case, witness tampering constituted a lesser-included offense to
solicitation to commit falsifying physical evidence. See McKean, 147 N.H. at
200 (“A lesser-included offense is one which must necessarily be included in
the greater offense.” (quotation and brackets omitted)). We agree.

¶16 To determine whether the two offenses charged in this case will be
considered the same under our state double jeopardy analysis, we ask
“whether the facts charged in the second indictment would, if true, have
sustained the first.” State v. McGurk, 157 N.H. 765, 773 (2008) (quotation
omitted). The facts charged in the solicitation to falsify physical evidence
indictment include that the defendant, believing that an official proceeding, as
defined in RSA 641:1, II, or investigation was pending or about to be
instituted,2 purposely solicited Hugle to delete information relevant to a
pending criminal prosecution. Such facts, if true, would also prove the
elements as charged in the witness tampering indictment: that the defendant,
believing that an official proceeding, as defined in RSA 641:1, II, or
investigation was pending or about to be instituted, knowingly attempted to
induce or otherwise cause Hugle to “delete information from any electronic
device or any electronic communication service, that constituted evidence
related to the official investigation.” (Bolding omitted.)

¶17 The State correctly points out that each of the two offenses requires
a different mens rea: “purposely” for solicitation to commit falsifying physical
evidence and “knowingly” for witness tampering. It argues, therefore, that
solicitation to commit falsifying physical evidence and witness tampering
constitute “separate crimes.” We note, however, that proof of the mens rea of
“purposely” automatically establishes the mens rea of “knowingly.” See RSA
626:2, III (2016) (“When acting knowingly suffices, the element is also
established if a person acts purposely.”). Accordingly, that a different mens rea
is required for each offense does not prevent proof of the facts charged in the
second indictment (solicitation to commit falsifying physical evidence) from also
sustaining the first (witness tampering). See McGurk, 157 N.H. at 773.

¶18 The State also argues that the elements of the charged offenses
differed because, although the solicitation to falsify physical evidence charge
“required the State to prove that the defendant solicited Hugle to destroy, alter,
conceal, or remove the video,”

[t]he witness tampering charge required the State to prove that the
defendant attempted to induce or cause Hugle to withhold
information from an official proceeding regarding his October 2019
letter and his plot to have Hugle log in to an email account and

2 This allegation follows from the allegation that the defendant acted with the purpose that Hugle

engage in conduct constituting the crime of Falsifying of Physical Evidence as defined in RSA
641:6. See RSA 629:2, I.

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 delete a video or any other information relative to the video, email
address, electronic device storing the video, or electronic
communication service.

We disagree.

¶19 The indictment references the October 2019 letter as the means by
which the defendant requested that Hugle “withhold any information” by
deleting the video. As charged, the information sought to be withheld is the
information contained in the video. Only a strained interpretation of the
indictment would read the October 2019 letter — and the defendant’s
associated “plot” — to be the “information” sought to be withheld. See State v.
Nickles, 144 N.H. 673, 679 (2000) (“reject[ing] the defendant’s parsing of the
indictment” in favor of “[a] fair reading of [it]”).

¶20 Because we agree with the defendant that, as charged in this case,
witness tampering constituted a lesser-included offense to solicitation to falsify
physical evidence, we now address whether both offenses derive from the same
criminal act. See Farr, 160 N.H. at 809 (noting that double jeopardy analysis
does not conclude upon finding one charged offense is a lesser-included offense
to another, because “it violates double jeopardy to punish a defendant for both
a lesser included and greater offense only if both derive from the same criminal
act”). “A criminal act consists of the sum of discrete actions that together
constitute an offense.” Id. (quotation omitted). Here, both charges at issue
derive from the same criminal act: the defendant requesting that Hugle delete
the video.

¶21 Because the facts charged in the solicitation to falsify physical
evidence indictment would, if true, also support a conviction under the
indictment for witness tampering, and both charges derive from the same
criminal act, the convictions on both charges violate double jeopardy under the
State Constitution. See id.; Lucius, 140 N.H. at 66-68. Accordingly, the
defendant’s conviction and sentence for witness tampering must be vacated.
See Heald v. Perrin, 123 N.H. 468, 475 (1983), superseded on other grounds by
RSA 651:2, II-g, as stated in Nickles. “Having concluded that the defendant’s
state constitutional rights were violated, we need not decide whether his federal
constitutional rights were also violated.” Farr, 160 N.H. at 812.

¶22 We next address the defendant’s challenge to his convictions on
three counts of accomplice to contributing to the delinquency of a minor. He
argues that the evidence was insufficient to prove those charges.
Acknowledging that his sufficiency challenges are not preserved for appeal, he
raises them under the plain error rule. See Sup. Ct. R. 16-A. “Under the plain
error rule, we may consider errors not raised before the trial court.” State v.
Racette, 175 N.H. 132, 139 (2022), modified on other grounds by State v.

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Boudreau, 175 N.H. 806 (2023). “To find plain error: (1) there must be 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.” Id. at 139-40. “The plain error rule is used sparingly,
however, and is limited to those circumstances in which a miscarriage of
justice would otherwise result.” Id. at 140.

¶23 The defendant was charged, in three criminal complaints worded
identically except for the name and date of birth of the specified minor, as
follows:

Chasrick Heredia, with the purpose of promoting or facilitating the
commission of the offense of Intentional Contribution to
Delinquency, aided or agreed or attempted to aid Matthew Hugle in
planning or committing it, specifically, he knowingly provided
alcohol to [the specified minor], a minor, to produce, promote, or
contribute to the delinquency of [the specified minor] . . . .

The elements of intentional contribution to the delinquency of a minor are set
forth in RSA 169-B:41, I, which provides, in relevant part:

Any parent or guardian or person having custody or control of a
minor, or anyone else, who shall knowingly encourage, aid, cause,
or abet, or connive at, or has knowingly or willfully done any act to
produce, promote, or contribute to the delinquency of such minor,
shall be guilty of a misdemeanor.

RSA 169-B:41, I. RSA 169-B:2, IV, in turn, defines “[d]elinquent,” in relevant
part, to mean:

a person who has committed an offense before reaching the age of
18 years which would be a felony or misdemeanor under the
criminal code of this state if committed by an adult, or which is a
violation of RSA 318-B:2-c, II or III, and is expressly found to be in
need of counseling, supervision, treatment, or rehabilitation as a
consequence thereof.

RSA 169-B:2, IV (Supp. 2017) (amended 2021). “Consequently, a person may
be convicted of contributing to the delinquency of a minor only if his conduct
contributes to the minor’s commission of an act” described in RSA 169-B:2, IV.
State v. Davies, 121 N.H. 366, 368 (1981) (decided under prior law).

¶24 The defendant argues that the evidence was insufficient to convict
him on the contribution to the delinquency of a minor charges because,
although the evidence established that he provided A, B, and C with beer, their

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“possession and consumption of alcohol did not render them delinquent”
because the possession of alcohol is neither “a felony or misdemeanor under
the criminal code of this state,” nor “a violation of RSA 318-B:2-c, II or III.”
RSA 169-B:2, IV; see RSA 318-B:2-c, II, III (Supp. 2023) (relating to possession
of marijuana and hashish, respectively). Rather, the defendant points out,
possession of alcohol by a minor is governed by RSA 179:10, which provides, in
relevant part:

Except as provided in RSA 179:23, any person under the age of 21
years who has in his or her possession any liquor or alcoholic
beverage, or who is intoxicated by consumption of an alcoholic
beverage, shall be guilty of a violation and shall be fined a
minimum of $300.

RSA 179:10, I (2022). Thus, possession of alcohol by a minor is defined by the
legislature to be a violation, not a felony or misdemeanor. Id.

¶25 The State counters that the operative statute is RSA 179:5, which
provides, in relevant part, that “[n]o . . . person, shall sell or give away or cause
or allow or procure to be sold, delivered, or given away any liquor or beverage
to a person under the age of 21.” RSA 179:5, I (2022). The State does not
argue that the defendant himself violated this statute. Although the evidence
introduced on the contribution to delinquency charges, and the defendant’s
own testimony, might have supported conviction for that offense, the State did
not charge the defendant with violating RSA 179:5, I. Rather, the State
charged the defendant with contributing to the minors’ delinquency, which, as
discussed above, required proof that each minor committed an act that would
be a misdemeanor or felony if she were an adult. The State now argues on
appeal that each of the girls committed an act that, under RSA 179:5, would
constitute a misdemeanor if she were an adult. See RSA 179:58, I (2022)
(providing, in relevant part, that “[a]ny person who violates any of the
provisions of this title or any of the rules adopted pursuant to this title shall be
guilty of a misdemeanor if a natural person, or guilty of a felony if any other
person”). Specifically, the State argues that “the girls distributed the alcohol
among themselves. If any one of the girls were adults in that situation, they
could have been charged criminally with violating RSA 179:5, either directly, as
co-conspirators, or solicitors.”

¶26 We need not decide, however, whether the indictments could be
read to encompass the theory now articulated by the State, because the jury
was not instructed on it. On each charge of accomplice to intentional
contribution to delinquency of a minor, the jury was instructed:

The definition of this crime has three parts or elements. The State
must prove each element beyond a reasonable doubt. Thus, the

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 State must prove the Defendant aided or agreed or attempted to
aid another, specifically Mathew Hugle, in planning or committing
the offense of intentional contribution to delinquency, and the
Defendant acted with the purpose of promoting or facilitating the
commission of the offense, and the Defendant did knowingly
promote or contribute to the delinquency of a minor, specifically he
gave alcohol to [the identified minor].

(Emphasis added.) The jury was further instructed that “[i]intentional
contribution to delinquency means a person commits the crime of intentional
contribution to delinquency when such person has knowingly or willfully done
any act to produce, promote, or contribute to the delinquency of such minor.”
The jury was not instructed, however, on the definition of delinquency and, in
particular, was not instructed that it could find contribution to delinquency
only if it found that the minor identified in the indictment gave the alcohol
furnished by the defendant to another minor.

¶27 We conclude that a reasonable jury would have understood the
instructions to mean that the “delinquency” to which the defendant allegedly
contributed was each minor’s possession of the alcohol the defendant gave to
her; a reasonable jury would not have understood the instructions to mean
that it could convict the defendant on each contribution to delinquency charge
only if it found that the identified minor “delivered, or [gave] away” the alcohol
to at least one of the other minors. RSA 179:5, I. Accordingly, we conclude
that the jury convicted the defendant on evidence that he provided each minor
with alcohol, which she, in turn, possessed. However, as the defendant points
out, possession of alcohol by a minor is a violation, not a felony or
misdemeanor as required by RSA 169-B:2, IV, and, therefore, his conduct did
not constitute the offense of contribution to the delinquency of a minor. See
RSA 169-B:41, I, :2, IV.

¶28 For the foregoing reasons, we conclude that the evidence was
insufficient to convict the defendant on the accomplice to contributing to the
delinquency of a minor charges. Turning to the remaining plain error factors,
we conclude that the error was plain because the evidence was insufficient to
prove an essential element of the crimes; namely, that the defendant produced,
promoted, or contributed to the delinquency of A, B, and C. State v. Houghton, 168 N.H. 269, 274 (2015); see RSA 169-B:41, I. We also “conclude that the
error affected the defendant’s substantial rights because the trial court’s failure
to dismiss the charge at the close of the evidence led to his conviction on the
charge.” State v. Guay, 162 N.H. 375, 384 (2011). “Finally, because the jury
convicted the defendant based upon insufficient evidence of guilt, allowing the
defendant’s conviction to stand would seriously affect the fairness and integrity
of judicial proceedings.” Racette, 175 N.H. at 141. Accordingly, the trial court

10
committed plain error, and we reverse the defendant’s convictions on the
contributing to the delinquency of a minor charges. See id.

¶29 Therefore, we vacate the witness tampering conviction on double
jeopardy grounds and reverse the three convictions for accomplice to
contributing to the delinquency of a minor. We remand for consideration of
resentencing consistent with this opinion and with State v. Abram, 156 N.H.
646, 655 (2008).

Vacated in part; reversed in part;
and remanded.

DONOVAN and COUNTWAY, JJ., concurred; HANTZ MARCONI, J., sat
for oral argument but subsequently disqualified herself and did not participate
in further review of the case.

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