State v. Jose Batista-Salva, 205 A.3d 165

On Jan. 3, 2016, a Wendy’s in Nashua was robbed; manager M.D. (mask obscured robber) reported to police that he recognized the robber’s voice as defendant Jose Batista‑Salva, a former employee.
The next day defendant sent Facebook messages to M.D.’s brother, C.D., denying involvement and asking C.D. to tell M.D. to stop saying it was him.
Defendant was indicted on multiple counts arising from the robbery; after trial he was convicted of witness tampering (RSA 641:5, I) and acquitted or had other charges dismissed.
The witness tampering indictment alleged defendant “told M.D. [to] refrain from providing his name to police.” The only trial evidence of communication was the Facebook messages to C.D., not to M.D.
Defendant argued on appeal the indictment was constructively amended at trial (altering the alleged target of his statements), and that this undermined evidentiary rulings, sufficiency of the evidence, and jury instructions.
The State argued these constructive‑amendment arguments were not preserved; the Supreme Court found the specific constructive‑amendment claim was not raised below and declined to waive preservation, and also rejected plain‑error review because defendant failed to show prejudice.

Issue	State's Argument	Batista‑Salva's Argument	Held
Whether indictment was constructively amended at trial	Not argued below; preserved issue lacking; merits not reached	Trial evidence showed communications to C.D., not M.D., so indictment alleging "told M.D." was constructively amended	Not preserved; Court declines to review on merits and does not waive preservation
Whether Court should waive preservation to hear constructive‑amendment claim	Waiver inappropriate; record insufficiently developed on reliance/prejudice	Requests waiver because issue was raised indirectly in evidentiary and dismissal motions	Court declines to waive; factual record ambiguous on reliance/prejudice
Whether plain‑error review applies	Plain‑error standard not satisfied; defendant bears burden to show prejudice	Requests plain‑error review arguing amendment (if any) was plain and prejudicial	Denied: defendant failed to show prejudice or plain error
Whether evidentiary admission, sufficiency, and jury instruction errors (all premised on amendment) require reversal	These arguments were premised on the unpreserved amendment theory	Argues Facebook messages were irrelevant to charged offense, insufficient to convict, and required a limiting instruction tied to "told M.D."	Court does not reach merits because premise (constructive amendment) not preserved or shown to be prejudicial; conviction affirmed

State v. Quintero, 162 N.H. 526 (explaining limits on amending indictments and prejudice standard for amendments)
State v. Prevost, 141 N.H. 559 (indictment language cannot be freely amended)
State v. Elliott, 133 N.H. 759 (describes third‑type amendments that specify how crime was committed)
State v. Oakes, 161 N.H. 270 (prejudice inquiry focuses on whether defendant relied on indictment’s allegations)
State v. Doucette, 146 N.H. 583 (review of reliance and prejudice where indictment allegations circumscribe the charged crime)
State v. Mouser, 168 N.H. 19 (preservation and waiver analysis; trial record development factor)
State v. Wilson, 169 N.H. 755 (policy favoring issues first be presented to trial court)
State v. McInnis, 169 N.H. 565 (appellant’s burden to show issues were raised below)
State v. Kardonsky, 169 N.H. 150 (when appellate waiver may be appropriate for discrete legal questions)
State v. Hanes, 171 N.H. 173 (plain‑error standard and its sparing application)
State v. Fiske, 170 N.H. 279 (defendant bears burden to demonstrate plain error)