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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Hillsborough-northern judicial district
No. 95-753
THE STATE OF NEW HAMPSHIRE
v.
JOHN BARTON
November 6, 1997
Jeffrey R. Howard, attorney general (Richard J. Lehmann, attorney, on the brief and orally), for the State.
Joachim Barth, assistant appellate defender, of Concord, by brief and orally, for the defendant.
THAYER, J. A jury convicted the defendant, John Barton, of attempted burglary. See RSA 635:1 (1996). The defendant appeals his conviction, asserting that the Superior Court (Lynn, J.) impermissibly amended the underlying indictment by instructing the jury regarding accomplice liability. See RSA 626:8, III(a) (1996). We affirm.
The underlying indictment sufficiently charged the defendant as a principal to an attempted burglary. At the conclusion of the State's case-in-chief, the defendant moved to dismiss. The trial court denied the motion, reasoning that even if the defendant did not perform all of the acts personally, the jury could find the defendant guilty as an accomplice because the evidence supported a finding that the defendant acted in concert with a principal. After instructing the jury regarding the specific elements of the attempted burglary offense, the judge further instructed them regarding accomplice liability, explaining that
[a] defendant may be convicted of a crime although he did not personally perform all of the conduct which constitutes the offense. In other words, the law recognizes that there may be a division of labor in criminal activity just as there is in business or in many other activities of daily life. A person who participates in the commission of a crime by doing some act to aid or assist another in the commission of a crime and who does so with the purpose of promoting or facilitating the crime is just as guilty, if the crime is in fact committed, as if he or she had personally performed each step in the commission of the offense.
The jury returned a guilty verdict. The trial court denied the defendant's motion to set aside the verdict, and this appeal followed.
The defendant argues that the trial court's instruction impermissibly amended the indictment in violation of part I, article 15 of the New Hampshire Constitution by allowing the jury to consider evidence supporting uncharged elements of accomplice liability. State v. Elliott, 133 N.H. 759, 764, 585 A.2d 304, 307 (1990). The defendant asserts this error requires automatic reversal. Id. Alternatively, the defendant argues that he relied on the language of the indictment to his prejudice in preparing his defense. Id. at 764-65, 585 A.2d at 307; State v. Erickson, 129 N.H. 515, 519, 533 A.2d 23, 25 (1987).
The State responds that the trial court did not err because an indictment that alleges principal liability for a substantive offense also alleges accomplice liability for that offense. We agree and hold that as a matter of law an accomplice instruction does not amend an indictment alleging principal liability because an indictment charging a defendant as a principal also alleges accomplice liability.
The common law distinctions between principals and accessories, see, e.g., State v. Lacoshus, 96 N.H. 76, 80, 70 A.2d 203, 206-07 (1950); State v. Demos, 81 N.H. 318, 321, 125 A. 426, 428 (1924); State v. Buzzell, 58 N.H. 257, 258-59 (1878), spawned several technical rules and fostered procedural difficulties. See 2 W. LaFave & A. Scott, Jr., Substantive Criminal Law