## Facts

- Kevin Merritt and his girlfriend, Kelly Higgins, lived together for about eighteen months before the events at issue; Higgins had no income and was in serious financial trouble.
- On December 18, 1995, Higgins used stolen credit cards belonging to Frances Driscoll and Marjorie Dannis to make multiple purchases at several stores in the same day, while Merritt was nearby during the transactions.
- For each purchase, Higgins handed the card to the clerk and signed the credit-card slip.
- Driscoll discovered her purse missing around 2:00 p.m.; it contained a Jordan Marsh card and a Visa card, and Driscoll was the only authorized user.
- Around 2:30 p.m., Higgins used Driscoll’s Jordan Marsh card to purchase jewelry at Jordan Marsh; a clerk later reported in a written statement that Higgins “was accompanied by” Merritt, but there was no other evidence about Merritt’s conduct during that purchase.
- Around 3:17 p.m., at American Eagle Outfitters, Merritt tried on clothing and Higgins bought men’s pants and shirts using Driscoll’s Visa card; the clerk testified Merritt stood by the counter and “did all the talking.”
- Higgins later used a stolen card belonging to Dannis for additional purchases, including at J.C. Penney and several jewelry stores.
- At J.C. Penney, Higgins purchased men’s work boots and a men’s diamond ring that Merritt selected; the jewelry-department clerk testified staff spoke mainly with Merritt before the sale.
- At multiple jewelry stores, sales personnel testified that Merritt spoke extensively with them or did most of the talking while Higgins used the credit card.
- The State indicted Merritt on four counts of fraudulent use of a credit card (RSA 638:5), alleging he acted “in concert” with Higgins; a jury convicted Merritt on all counts.

## Issues

1. Whether the evidence was sufficient to prove, for each charged transaction, that Merritt acted “in concert” with Higgins in the fraudulent use of credit cards (including the required act and intent for accomplice liability).
2. Whether alleged prosecutorial misconduct during argument required reversal of any convictions.
3. Whether Merritt’s ineffective-assistance-of-counsel claims could be resolved on direct appeal based on the trial record.

## Decision

- Affirmed in part, reversed in part, and remanded for resentencing.
- Reversed the Jordan Marsh count because the State’s evidence showed only that Merritt accompanied Higgins, with no proof that he took any action to assist the fraudulent use of the card during that purchase.
- Affirmed the remaining counts because evidence that Merritt selected items, tried on merchandise that was then purchased, and handled much of the interaction with sales clerks allowed the jury to find beyond a reasonable doubt that he intentionally aided Higgins’s fraudulent transactions.
- Rejected Merritt’s prosecutorial-misconduct claim as a basis for reversal.
- Declined to grant relief on ineffective-assistance claims on direct appeal, leaving such claims for proceedings where a fuller record could be made.

## Legal Principles

- When reviewing sufficiency of the evidence, the court views the evidence and all reasonable inferences in the light most favorable to the State and asks whether a rational factfinder could find guilt beyond a reasonable doubt.
- Accomplice liability (“acting in concert”) requires proof of both (1) intent to facilitate the offense and (2) some action—such as aiding or attempting to aid—in planning or committing the offense; mere presence at the scene is not enough.
- A defendant’s intent and knowledge may be inferred from circumstantial evidence, including conduct during the transaction, selection of items, and dealings with others involved in completing the purchase.
- Even if later conduct can be considered as evidence of intent (subject to evidentiary limits such as Rule 404(b)), intent alone cannot substitute for evidence that the defendant took an assisting act as to a specific charged transaction.
- Claims of prosecutorial misconduct are evaluated in context to determine whether the challenged remarks or actions were improper and, if so, whether they likely affected the verdict.
- Ineffective-assistance claims are commonly not decided on direct appeal where the record does not show counsel’s reasons for the challenged acts or omissions; they are typically addressed in later proceedings with additional fact development.

## Conclusion

New Hampshire v. Merritt applies accomplice-liability requirements transaction by transaction in a credit-card-fraud case, holding that the State must prove more than a defendant’s presence near the principal offender: one count was reversed where Merritt was only shown to have accompanied Higgins, while other convictions were affirmed because evidence of his item selection and clerk interactions supported findings that he intentionally aided Higgins’s fraudulent use of stolen credit cards; the court also rejected claims of prosecutorial misconduct and left ineffective-assistance claims for postconviction review.


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