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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-southern judicial district

No. 2016-0577

THE STATE OF NEW HAMPSHIRE

v.

JOSE BATISTA-SALVA

Argued: September 13, 2018

Opinion Issued: February 22, 2019

Gordon J. MacDonald, attorney general (Susan P. McGinnis, senior 

assistant attorney general, on the brief and orally), for the State.

Thomas Barnard, senior assistant appellate defender, of Concord, on the 

brief and orally, for the defendant.

HANTZ MARCONI, J. The defendant, Jose Batista-Salva, appeals his 

conviction for witness tampering following a jury trial in Superior Court 

(Colburn, J.). See RSA 641:5, I (2016). He raises three arguments on appeal, 

each of which is premised on an underlying argument that the witness 

tampering indictment was impermissibly constructively amended. To the 

extent his arguments are not preserved, he asks us to waive our preservation 

requirement or consider them under plain error review. We affirm.

The jury could have found the following facts. On January 3, 2016, a 

man robbed a Wendy’s restaurant in Nashua. When a cashier was handing an 
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order to a customer via the restaurant’s drive-through window, the robber ran 

up to the open window, pointed a gun at the cashier, and demanded money. 

Although the robber’s face was covered by a bandana, the manager on duty, 

M.D., thought he recognized the robber’s voice. M.D. believed the robber was 

the defendant, a former employee of that Wendy’s restaurant. After the 

robbery, M.D. called 9-1-1 and reported to the responding officer that the 

defendant was the robber.

The next day, the defendant contacted M.D.’s brother, C.D., via 

Facebook. The defendant asked C.D. why M.D. was saying that the defendant

committed the robbery. The defendant told C.D. “[t]hat was not me,” “tell your 

brother to stop saying that was me,” “[t]ell him to never say my name off his 

mouth again and we will not have no beef,” and “[r]eal men don’t tell on a soul.” 

He also said, “[A]ll I was asking is for you to talk to your brother and put some 

common sense on his side not to put my name out there.”

The State brought the defendant to trial on five indictments arising from 

the robbery. The court dismissed one charge. The jury acquitted him of three 

others, but found him guilty of witness tampering. This appeal followed.

The defendant makes three arguments on appeal. All three are premised 

on an underlying argument that the witness tampering indictment was 

impermissibly constructively amended at trial. The State contends that the 

defendant never presented his constructive amendment argument to the trial 

court, and therefore none of his arguments are preserved for our review. We 

begin by considering the defendant’s underlying constructive amendment 

argument, and whether it is preserved.

“RSA 601:1 (2001), which must be considered in conjunction with Part I, 

Article 15 of the New Hampshire Constitution, requires that a person be indicted 

by the grand jury before he or she may be tried for any offense punishable by 

imprisonment in excess of one year.” State v. Quintero, 162 N.H. 526, 541 

(2011). Once an indictment has been returned, its language cannot be freely 

amended. See State v. Prevost, 141 N.H. 559, 560 (1997). “Amendments that 

purport to change an element of the offense are invalid, while amendments that 

involve merely the form of the indictment are freely allowed and may be made 

without the need to return to the grand jury.” Quintero, 162 N.H. at 542

(citations omitted). 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. Amendments of this third type are 

impermissible if they prejudice “the defendant either in his ability to understand 

properly the charges against him or in his ability to prepare his defense.” 

Quintero, 162 N.H. at 542 (quotation omitted). This prejudice analysis often 
3

entails a review of whether the record of the trial court proceedings shows that 

the defendant relied upon the specific factual allegations in the indictment. See, 

e.g., State v. Oakes, 161 N.H. 270, 279 (2010); State v. Doucette, 146 N.H. 583, 

589-91 (2001); Elliott, 133 N.H. at 765-67.

In this case, the witness tampering indictment alleged that the 

defendant, “believing that an official proceeding . . . was pending, purposely 

attempted to induce or otherwise cause M.D. . . . to withhold information when 

Jose Batista-Salva told M.D. [to] refrain from providing his name to police . . . .” 

(Emphasis added.) The defendant contends that the only evidence at trial that 

related to the indictment was his Facebook messages to M.D.’s brother, C.D. 

Because the messages were sent to C.D., not M.D., he argues that “there was 

no evidence that [the defendant] told M.D. anything.” In light of these points, 

the defendant argues that the indictment was constructively amended at trial

“to allege that he committed witness tampering by communicating with C.D. 

rather than M.D.” The defendant then claims that this amendment was of the 

third type because the phrase “told M.D.” specified and circumscribed how the

alleged crime was committed. He further argues that the amendment was 

impermissible because it prejudiced him.

The conclusion that an impermissible constructive amendment occurred 

operates as a premise in each of the defendant’s further arguments. He 

contends that his conviction is not supported by legally sufficient evidence 

because there was no evidence that he “told M.D.” anything. The defendant 

further argues that the trial court unsustainably exercised its discretion in 

admitting the Facebook messages into evidence because they were not relevant 

to whether the defendant “told M.D. [to] refrain from providing his name to 

police.” Finally, the defendant submits that the trial court erred when it failed 

to instruct the jury that he could only be convicted of witness tampering if the 

jury found that he “told M.D. [to] refrain from providing his name to police.”

The State asserts that these arguments were never presented to the trial 

court and therefore are not preserved for our review. Generally, we do not 

consider issues raised on appeal that were not presented to the trial court. 

State v. Plantamuro, 171 N.H. ___, ___ (decided Sept. 7, 2018) (slip op. at 6); 

see State v. Mouser, 168 N.H. 19, 27 (2015). This preservation requirement, 

expressed in both our case law and Supreme Court Rule 16(3)(b), reflects the

general policy that trial forums should have an opportunity to rule on issues 

and to correct errors before they are presented to the appellate court. State v. 

Wilson, 169 N.H. 755, 768 (2017). The defendant, as the appealing party, 

bears the burden of demonstrating that he specifically raised the arguments 

articulated in his appellate brief before the trial court. State v. McInnis, 169 

N.H. 565, 573 (2017).

The defendant argues that his constructive amendment argument was

preserved by (1) his objection to admission of the Facebook messages, (2) his 
4

motion to dismiss the witness tampering charge at the close of the State’s case, 

and (3) his motion for judgment notwithstanding the verdict (JNOV) and his 

argument at the hearing on that motion. In his objection to admission of the 

messages, the defendant argued that they were not relevant to the witness 

tampering charge, “or at least the way it was charged.” In his motion to 

dismiss the witness tampering charge, he argued that the messages were “a 

declaration of his innocence, the belief that he’s being framed,” and were not 

attempts to cause M.D. to withhold information. In his motion for JNOV and at 

the hearing on that motion, he argued that the evidence adduced by the State 

may have been sufficient to convict the defendant of an inchoate variation of 

witness tampering, but was not sufficient to convict him of the crime charged 

in the indictment. The defendant never argued, as he does on appeal, that the 

indictment was constructively amended to allege that he committed witness 

tampering by telling C.D. to tell M.D. to refrain from providing his name to the 

police. Nor did he argue that he was prejudiced by such an amendment. See

Quintero, 162 N.H. at 542 (explaining that an amendment of the third type 

must be prejudicial to be impermissible). Thus, the trial court did not have the 

opportunity to consider the argument the defendant raises on appeal. We 

therefore conclude that the defendant’s constructive amendment argument is 

not preserved.

The defendant argues that we should waive our preservation requirement

if we find that his constructive amendment argument is not preserved. 

Preservation is a limitation on the parties to an appeal, not the reviewing court;

thus we have discretion to waive our preservation requirement. Mouser, 168 

N.H. at 28. One factor we consider when deciding to exercise this discretion is 

whether the failure to raise the argument to the trial court results in an 

insufficiently developed factual or legal record to guide our analysis. See id. In 

this case, evaluating the merits of the defendant’s constructive amendment 

argument would require us to determine whether the purported amendment 

prejudiced him either in his ability to properly understand the charges against 

him or in his ability to prepare his defense. See Oakes, 161 N.H. at 279. This 

prejudice inquiry often entails a review of whether the record shows that the 

defendant relied upon the specific factual allegations in the indictment in 

defending against the charge. See, e.g., id.; Doucette, 146 N.H. at 591; Elliott, 

133 N.H. at 765-67.

While reliance, or the lack thereof, may be evident in the record even if 

the constructive amendment claim brought on appeal was not raised to the 

trial court, see Oakes, 161 N.H. at 279, we conclude that the record in this 

case is insufficiently developed on the issue of reliance. Here, the record of the 

trial court proceedings is ambiguous as to whether the defendant relied on the 

factual allegations in the indictment in defending against the witness 

tampering charge. We decline to waive our preservation requirement in the 

absence of the record we need to properly evaluate the merits of the 

defendant’s argument. Compare Mouser, 168 N.H. at 28 (declining to waive 
5

preservation requirement on ground that, “because the defendant did not raise 

her appellate argument in the trial court, the trial court made very few (if any) 

relevant findings of fact or rulings of law” (quotation omitted)), with State v. 

Kardonsky, 169 N.H. 150, 152 (2016) (waiving preservation requirement 

“because the appeal issue constitutes a discrete question of statutory 

interpretation, requiring no further factual development”).

The defendant also asks us to consider his arguments under plain error 

review. See Sup. Ct. R. 16-A. The plain error rule allows us to exercise our 

discretion to correct errors not raised before the trial court. State v. Hanes, 

171 N.H. 173, 182 (2018). The rule is used sparingly, its use limited to those 

circumstances in which a miscarriage of justice would otherwise result. Id. 

For us to find plain error: (1) there must be error; (2) the error must be plain; 

and (3) the error must affect substantial rights. Id. If all three of these 

conditions are met, we may then exercise our discretion to correct a forfeited 

error only if the error meets a fourth criterion: the error must seriously affect 

the fairness, integrity, or public reputation of judicial proceedings. Id. The 

defendant bears the burden of demonstrating plain error. State v. Fiske, 170 

N.H. 279, 291 (2017).

A constructive amendment of the third type is error under the first prong 

of this standard if the defendant demonstrates that the amendment prejudiced

his ability to prepare his defense or understand the charges against him. See

Oakes, 161 N.H. at 278-79. Even assuming that a constructive amendment of 

the third type occurred in this case, the defendant has not met his burden of 

demonstrating that the amendment prejudiced him and therefore was

erroneous under the first plain error prong. As noted above, the record is 

ambiguous regarding the defendant’s reliance on the language of the 

indictment. Thus, because the defendant has not shown that any constructive 

amendment was prejudicial and therefore impermissible, he has not 

demonstrated plain error. See id. at 279.

Given our conclusions above, we need not consider the defendant’s other 

arguments, having rejected the premise on which they rely.

Affirmed.

LYNN, C.J., and HICKS, BASSETT, and DONOVAN, JJ., concurred.