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In between these categories is a third type of amendment: one “that does not alter the crime charged in an indictment, but changes an allegation in the indictment that has the effect of specifying and circumscribing the scope of the crime alleged; for instance, an allegation of how the crime was committed.” State v. Elliott, 133 N.H. 759, 764 (1990) (emphasis and quotation omitted); accord Quintero, 162 N.H. at 542.

There is a third type of 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; for instance, an allegation of how the crime was committed.” State v. Elliott, 133 N.H. 759, 764 (1990) (quotation omitted).

Doucette, 146 N.H. at 590 (quotation and citation omitted); see also State v. Elliott, 133 N.H. 759, 764 (1990) (explaining that an amendment of an indictment may be impermissible if it prejudices the defendant “either in his ability to understand properly the charges against him or in his ability to prepare his defense” (quotation omitted)).

Amendments in form are permissible because “they do not jeopardize the right to be tried only on charges that have been passed on by a grand jury.” State v. Elliott, 133 N.H. 759, 764 (1990) (quotation omitted).

The defendant argues that he preserved this issue by making a motion for a new trial, citing State v. Elliott, 133 N.H. 759 (1990), and State v. Johnson, 130 N.H. 578, 586 (1988).

State v. Bathalon, 146 N.H. 485, 489 (2001) (holding that “[t]he trial court did not substantively amend the indictment by adding an element to the charged offense”); cf. State v. Elliott, 133 N.H. 759, 765 (1990) (trial court impermissibly amended indictment by instructing jury it could convict defendant of manslaughter without finding that defendant shot victim).

This is not a case where, as the defendant argues, the trial court’s instruction altered or expanded the scope of the indictments.

Jury instructions that change an element of an offense charged by a grand jury are automatically in error.

Amendments relate to form if they “do not jeopardize [a defendant’s] right to be tried only on charges that have been passed on by a grand jury.” State v. Elliott, 133 N.H. 759, 764 (1990) (quotation omitted).

“[T]he test for determining whether changing such an allegation causes an impermissible amendment of the indictment is whether the change prejudices the defendant either in his ability to understand properly the charges against him or in his ability to prepare his defense.” State v. Elliot, 133 N.H. 759, 764 (1990) (quotation omitted).

Part I, Article 15 protects a defendant from being convicted of a crime not charged in an indictment.

The defendant argues that the trial court’s instruction impermissibly amended the indictment in violation of part I, article 15 of the New Hampshire Constitution by allowing the jury to consider evidence supporting uncharged elements of accomplice liability.

The defendant was entitled to rely on the indictment in preparing his defense to the charge.

Courts are allowed to amend indictments in form, but not substance, id., since “such amendments [of form] do not jeopardize the right to be tried only on charges that have been passed on by a grand jury.” State v. Elliott, 133 N.H. 759, 764, 585 A.2d 304, 307 (1990) (quotations omitted); see RSA 601:1 (Supp. 1996).

State v. Elliott, 133 N.H. 759, 765, 585 A.2d, 304, 307 (1990); State v. Johnson, 130 N.H. 578, 586, 547 A.2d 213, 218 (1988); State v. Fennelly, 123 N.H. 378, 388, 461 A.2d 1090, 1095 (1983).

Instructions that alter only the form of an indictment rather than its substance are always permissible.

Because we hold that the prosecutor’s remarks were not improper, we need not address th.e subsidiary arguments raised by the defendant.