State v. Merritt - 143 N.H. 714, 738 A.2d 343 (1999)

Rule:

The crime of accomplice liability necessitates some active participation by the accomplice. The defendant's presence, however, can be sufficient if it was intended to, and does, aid the primary actor. Thus, the defendant's presence may constitute aiding and abetting when it is shown to encourage the perpetrator or facilitate the perpetrator's unlawful deed. Moreover, the circumstances surrounding the defendant's presence at the scene may warrant a jury inference beyond a reasonable doubt that he sought to make the crime succeed.

Facts:

Defendant's girlfriend bought items with credit cards that did not belong to her. At one store, defendant merely accompanied his girlfriend. At other stores, defendant actually picked out the items. One of the victims had her purse stolen from her car by a man. Shortly thereafter, a man matching defendant's description picked out clothing and jewelry and the woman with him paid with the victim's credit cards. Defendant was convicted of four charges of acting in concert with another on the fraudulent use of credit cards in violation of N.H. Rev. Stat. Ann. § 638:5. Defendant appealed, arguing that the evidence was insufficient to sustain his convictions. 

Issue:

Was the mere presence of defendant at the scene of the crime sufficient to sustain his conviction? 

Answer:

No.

Conclusion:

The court reversed in part, affirmed in part, and remanded, finding that defendant's mere presence at the scene of the crime was insufficient to sustain a conviction because accomplice liability necessitated some active participation by the accomplice. The court affirmed the remaining charges because a jury could have reasonably decided that all rational inferences other than guilt had been excluded beyond a reasonable doubt. The court held the prosecutor had great latitude in closing argument to summarize and discuss evidence presented to the jury and to urge the jury to draw inferences of guilt from evidence.