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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Rockingham No. 2010-130 THE STATE OF NEW HAMPSHIRE v. ANDRE RIVERA Argued: April 7, 2011 Opinion Issued: June 28, 2011 Michael A. Delaney, attorney general (Ann M. Rice, associate attorney general, on the brief and orally), for the State. Stephanie Hausman, assistant appellate defender, of Concord, on the brief and orally, for the defendant. LYNN, J. Following a jury trial in Superior Court (Nicolosi, J.), the defendant, Andre Rivera, was convicted of accomplice to reckless second-degree murder, see RSA 626:8 (2007); RSA 630:1-b, I(b) (2007). He appeals his conviction, arguing that the trial court: (1) erred in refusing to dismiss the indictment; and (2) provided erroneous instructions to the jury. We affirm. The jury could have found the following facts. In August 2007, the defendant, Christopher Gagne, Troy Whipple, Ryan Mead, and Jordan Webster

discussed committing a robbery. Gagne had a Mac 11 submachine gun, which he had stolen a few days earlier. The defendant suggested robbing Jason Violette, whom the defendant knew to be a drug dealer, of money and drugs. The others agreed to this plan. Whipple told the others that Violette had a gun, which he normally kept in a safe. The group decided that Gagne would bring his gun to subdue Violette while the others searched the house. In discussing the possibility of an armed standoff with Violette, Gagne stated, "If it's him [Violette] or me, it's him." The defendant replied, "Do what you got to do." Whipple called Violette to arrange to buy drugs from him. On the night of August 12, 2007, the defendant, Gagne, Webster, Whipple and Mead met at Gagne's brother's house. The defendant drove the others to Mead's father's house to change cars for the robbery, then to a wooded hiding place to collect Gagne's gun, and then to Violette's house. Whipple and Mead waited outside while Webster, Gagne, and the defendant entered through a side door. They found Violette upstairs in the kitchen. Gagne ordered him to turn around and "give [them] his things, his stuff." The defendant began punching Violette, who fought back. Gagne noticed that Violette had a gun in his pocket and shouted this information to his companions. Webster and the defendant promptly ran downstairs. Gagne and Violette struggled. Gagne testified that when Violette pulled out his gun, Gagne shot him. Gagne then ran downstairs. The defendant and Webster were in the basement, and the defendant was looking through a dresser drawer. Gagne told the others that he had shot Violette, after which Gagne, Webster, and the defendant left the house, ran back to the car, and left with Whipple and Mead. The defendant was subsequently indicted on charges of reckless seconddegree murder under an "accomplice in conduct" theory, as well as conspiracy to commit burglary, and burglary. He was found guilty by a jury on all three charges. Prior to trial, the defendant moved to dismiss the murder indictment on the grounds that it failed to allege that he acted with the purpose to promote or facilitate the specific actus reus of the principal offense

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