After a jury trial in Superior Court (Murphy, J.), the defendant, Kevin Merritt, was found guilty on four counts of acting in concert with another on the fraudulent use of credit cards, RSA 638:5 (1996). On appeal, he argues that the evidence was insufficient to sustain his convictions. He also raises claims of prosecutorial misconduct and ineffective assistance of counsel. We affirm in part, reverse in part, and remand for resentencing.
I
Because the defendant challenges the sufficiency of the evidence, we examine the record in the light most favorable to the State. See State v. Arillo,
That afternoon, at approximately 2:00 p.m., Driscoll noticed that her purse, which contained her Jordan Marsh and Visa credit cards, was missing. Driscoll was the only person authorized to use the cards. At 2:30 p.m., Higgins used Driscoll’s Jordan Marsh card to buy jewelry at the store in the Fox Run Mall. Several days later, a sales clerk gave a written statement to the police that “[o]n 12/18, in the fine jewelry department in Jordan Marsh, [Higgins] was accompanied by [the defendant] and made a purchase using a credit card” belonging to Driscoll. There was no other evidence concerning the jewelry purchase.
The defendant and Higgins then proceeded to Prelude Jewelers in downtown Portsmouth. The store owner testified that the defendant and Higgins had been in the store previously and admired a women’s diamond ring. During the December 18 visit, the owner heard the defendant tell Higgins he wanted to buy her the ring but that he would need to use her credit card. At 4:53 p.m., Higgins again used Driscoll’s Visa card and purchased the ring.
Around 5:30 p.m., a short distance from Prelude Jewelers, a man stole Marjorie Dannis’ purse from her car. Her purse contained her Visa and Mastercard, which only she was authorized to use.
At 7:30 p.m., a male matching the defendant’s description tried on a pair of men’s work boots at J.C. Penney in the Fox Run Mall, and the woman with him purchased them with Dannis’ Mastercard. At 7:44 p.m., the defendant and Higgins purchased a men’s diamond ring from the store’s jewelry department, with Higgins using Dannis’ Mastercard. The sales clerk spoke mainly with the defendant. When the sale was completed, the clerk gave the defendant, who identified himself as “Kevin Johnson,” a diamond certificate. At trial, the clerk explained that the individual named in the certificate was entitled to free diamond cleanings and to trade the diamond for one of greater value in the future. When Dannis’ purse was later
Based on this evidence, the defendant was indicted on four charges of fraudulent use of credit cards, alleging that he acted in concert with Higgins: the first count was for the Jordan Marsh jewelry; the second count was for the purchases at American Eagle, Hannoush Jewelers, and Whitehall Jewelers; the third count related to the ring purchased at Prelude Jewelers; and the fourth count identified the ring bought at J.C. Penney. The jury found the defendant guilty on all four counts, and this appeal followed.
II
We first address the defendant’s argument that the evidence was insufficient to sustain his convictions under New Hampshire law. See State v. LaRose,
The indictments alleged that the defendant “act[ed] in concert” with Higgins in the fraudulent use of the Driscoll and Dannis credit cards. The trial court instructed the jury that “acting in concert” meant accomplice liability. Under our Criminal Code, a person may be legally accountable for the conduct of another person if “[h]e is an accomplice of such other person in the commission of [an] offense.” RSA 626:8, 11(c) (1996). A person is an accomplice if, “[w]ith the purpose of promoting or facilitating the commission of [an] offense, he . . . aids or agrees or attempts to aid such other person in planning or committing it.” RSA 626:8, III(a) (1996).
In reviewing the sufficiency of the evidence, “we must determine whether, based upon all the evidence and all reasonable inferences from it, when considered in a light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt that the defendant was a voluntary and active participant” in each of the fraudulent credit card transactions. Arillo,
The defendant first contends that no rational jury could have found him guilty as an accomplice for the Jordan Marsh jewelry purchase because he was merely present in the store and did not take affirmative steps to satisfy the actus reus requirement. We
The State relies on State v. Laudarowicz,
The State also relies on evidence of the defendant’s other conduct on the day in question to support the inference that he engaged in similar conduct at Jordan Marsh. Assuming that the defendant’s subsequent conduct might be relevant to his intent, cf. N.H. R. EV. 404(b), we conclude that the State failed to present sufficient facts to satisfy the actus reus element of accomplice liability. Accordingly, we reverse the defendant’s conviction with respect to count one.
The defendant next contends that no rational jury could have found him guilty as an accomplice for the remaining transactions because he did not participate in them. He asserts no actus reus was proven, and because he did not know Higgins’ use of the credit cards was unauthorized, no mens rea was established either. We disagree.
With respect to mens rea, we conclude that the jury could have found the defendant knew Higgins’ use of the credit cards was unauthorized. Because the evidence of the defendant’s state of mind is circumstantial, the State has the burden of proving beyond a reasonable doubt that the evidence excludes all rational conclusions except guilt. Laudarowicz,
The defendant argues that a reasonable jury could not have excluded all rational conclusions except guilt with respect to his intent. For example, he claims that it would be reasonable to conclude that Higgins had the credit cards from an earlier time when she was in better financial condition, or that she had obtained the credit cards from companies which offer credit cards to credit-poor individuals. The defendant also argues that a rational jury could have concluded that he and Higgins had been shopping for the holidays, which could explain the numerous purchases and the fact that he used the name “Kevin Johnson,” a possible gift recipient, on the diamond certificate. The State responds that the defendant’s arguments are speculative because no evidence was presented to the jury to support these possible explanations. We agree.
No evidence in the record, circumstantial or otherwise, supports the defendant’s innocent explanations. For example, the defendant argues that the fact that he used the name “Kevin Johnson” on the diamond certificate is consistent with his assertion that he and Higgins were holiday shopping. The defendant, however, identified himself as “Kevin Johnson” and nothing in the record indicates that the men’s diamond ring purchase could have been for
Furthermore, we conclude that a rational jury could have reasonably decided, viewing the totality of the evidence in the State’s favor, that all rational inferences other than guilt had been excluded beyond a reasonable doubt. The defendant and Higgins had a relationship and were living together. Moreover, the credit cards were used six times in six stores, over a period of about five and a quarter hours, for merchandise totaling over $2,600. In addition, jewelry and clothes purchased fit the defendant or were items the defendant expressed an intent to give to Higgins. Finally, the defendant gave a false name on the diamond certificate that accompanied the purchase of a men’s diamond ring. Cf. Duguay,
To support his claims of insufficiency, the defendant argues that the theft of Driscoll’s purse and the discovery of Dannis’ abandoned purse with the diamond certificate and receipt are not evidence that he had any involvement in the matters because there was no evidence as to who stole Driscoll’s purse or who stole and later abandoned Dannis’ purse. Given the short time frame between the thefts and the use of the credit cards, however, these facts could be considered by the jury in determining whether the defendant was involved in the subsequent use of Driscoll’s and Dannis’ credit cards. Moreover, even without the testimony about the thefts, the evidence was sufficient. Accordingly, we affirm the defendant’s convictions with respect to the remaining counts.
Ill
We next address the defendant’s argument that the prosecutor engaged in misconduct during the trial, denying him due process of law under the Federal Constitution. The defendant contends that the State’s submission of evidence concerning the theft of the purses and the contents of Dannis’ purse, as well as statements made during the State’s closing argument, constitute prosecutorial misconduct.
During the State’s closing argument, the prosecutor asserted:
It’s almost hard to imagine taking somebody else’s credit cards, specifically the elderly women that you saw testify, it’s almost unfathomable for us to imagine taking cards from a woman like that and then utilizing them in making purchases of particular merchandise. How would you act if they were to walk into a place like that ....
Defense counsel interrupted and asked to approach the bench. Her objection, however, was recorded as “unintelligible.” Thereafter, the record only reflects the court’s passing comment “I don’t think so. I—I don’t read that” and defense counsel’s response “Okay.” In his pro se brief, the defendant characterizes his counsel’s objection as challenging the prosecution’s improper inference that the defendant stole the purses and the credit cards. Even assuming that this specific objection was made, we conclude that the prosecutor’s statement was not improper. See State v. Bujnowski,
Evidence had been admitted, without objection, regarding the theft of the purses and the contents of Dannis’ purse. Therefore, the State was commenting on evidence that was already before the jury. Cf. State v. Lake,
Finally, we address the defendant’s claims of ineffective assistance of trial and appellate counsel. We decline to review these claims at this juncture because the defendant has not yet raised these issues in the superior court, see, e.g., Petition of Dean, 142 N.H. 889, 890,
Accordingly, we reverse the defendant’s conviction on the first count and affirm his convictions on the three remaining counts. We remand for resentencing because evidence of the unlawful conviction may have affected the sentences imposed.
Affirmed in part; reversed in part; remanded.