Citation. 122 N.H. 1153, 453 A.2d 1327, 1982 N.H. 530.
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The case before the court involves an attempted burglary on the morning of December 8, 1980, at the O’Connor residence in Manchester.
Synopsis of Rule of Law.
The crime of accomplice liability requires the actor to have solicited, aided, agreed to aid, or attempted to aid the principal in planning or committing the offense. The crime thus necessitates some active participation by the accomplice. Accompaniment and observation are not sufficient acts to constitute “aid.”
Facts.
On the day of the attempted burglary, a neighbor to the O’Connor family observed two men, allegedly the Defendant, David Vaillancourt (Defendant), and Richard Burhoe (Burhoe), standing on the O’Connor’s front porch. Because the two men remained on the porch for nearly ten minutes, the neighbor became suspicious and began to watch them more closely. After ringing the doorbell and conversing with each other, the men allegedly walked to the side of the house where Burhoe allegedly attempted to break into a basement window. During this time, the Defendant allegedly stood by and watched Burhoe attempt to break the window. As a result of the men’s actions, the neighbor notified the police who apprehended the men as they were fleeing the scene.
Issue.
Whether the trial court erred in ruling that the indictment against the Defendant was sufficient on its face?
Held.
The trial court’s ruling was erroneous. As a result, the decision of the trial court is reversed. Knowledge and mere presence at the scene of the crime cannot support a conviction for accomplice liability because they do not constitute sufficient affirmative acts to satisfy the actus reus requirement.
Dissent.
The indictment in this case alleged more than mere presence by the Defendant. The furnishing of moral support and encouragement in the performance of a crime should be enough to constitute aiding a principal.
Discussion.
The court based its holding on the fact that the Defendant did little more than accompany Burhoe to the scene of the crime and watch him attempt burglary. However, as noted by the majority in their factual discussion and as noted by the dissent, the Defendant and Burhoe spoke with each other at the scene. Since the words exchanged between the two men could be seen as words of encouragement, the indictment against the Defendant may have been sufficient on its face. The majority seemed to ignore the spoken words between the two men, concentrating more on the fact that while Burhoe was attempting to break into the window, the Defendant merely watched. The majority paid little attention to the words that were spoken between the two men while they were on the O’Connor porch for nearly 10 minutes.
