State v. Winward, 161 N.H. 533

June 1, 2008, around 1:30 a.m., Fitzpatrick observed a man peering into his window and saw three men, including Winward, flee from near the dining room window; they were identified and chased by police nearby.
Across the street, Peterson heard voices described as panicky and heard defendants say, “we're dead, we're dead” before calling police.
Fitzpatrick found a bent window screen in the yard and footprints; a detective noted window glass marks consistent with prying; fingerprints were later examined.
Geha, a Salem officer, encountered Winward hiding behind bushes, who ran and resisted arrest; Smith and Mahoney were also arrested that night.
Winward was indicted for attempted burglary in concert with Smith and Mahoney, alleging removal of a window screen as the substantial step toward burglary; the indictment charged both as principal and in concert, allowing proof of either his own act or accomplice liability.
At trial, the court denied a motion to dismiss for lack of proof that Winward personally removed the screen, holding the indictment encompassed acts by all three men and that the presence of accomplice liability was adequately charged.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether failing to instruct that Winward must personally remove the screen impermissibly amended the indictment	Winward argues the court constructiveamended the indictment by not requiring his personal removal	Winward contends the indictment only charged principal or accomplice liability without specifying personal act	No impermissible amendment; indictment tolls principal and accomplice liability; sufficient notice to defend
Whether the court erred by not giving a mere-presence instruction for accomplice liability	Winward argues mere presence is insufficient to convict	State contends the court already required active participation through accomplice liability language	Courts may rely on active-participation standard; instruction adequately required active involvement
Whether the court's handling of the jury's question about the screen removal was preservationally proper	Defense claims the court should have clarified that removal by Winward was required	No clear record of proposed answer; objections not preserved	Issue not preserved for review; decline to address
Whether the evidence was sufficient to convict under accomplice liability	State contends evidence supports accomplice liability as to all elements	Winward argues insufficient proof of active participation by him	Rational jury could find he aided the crime; presence plus conduct supports accomplice liability

Doucette v. State, 146 N.H. 583 (2001) (indictment may inform defense even if it does not mirror exact acts; amendment permissible if not altering offense)
Munson v. State, 146 N.H. 712 (2001) (indictment alleging acted in concert suffices to charge principal and accomplice liability)
Munoz v. State, 157 N.H. 143 (2008) (attempt indictment may allege intended acts and substantial steps; notice adequate)
Therrien v. State, 129 N.H. 765 (1987) (allegation need not list every possible act of accomplice)
Elliott v. State, 133 N.H. 759 (1990) (amendment of indictment case-by-case standard)
Merritt v. State, 143 N.H. 714 (1999) (mere presence insufficient; active participation required")
Seymour v. State, 140 N.H. 736 (1996) (mere presence requires active participation to sustain conviction)
Bean v. United States, 117 N.H. 185 (1977) (pleading specificity in accomplice context often unnecessary)
Laudarowicz v. State, 142 N.H. 1 (1997) (evidence of attempts to deceive can establish accomplice liability)