2003-627, STATE OF NH v. DANIEL J. LITTLEFIELD

over the smaller boat. Both boats had departed from the Meredith public a twenty - foot Wellcraft motorboat and then the length of the larger boat rode eight miles per hour, the bow of the defendant’s boat collided with the stern of traffic, smooth water, and good visibility. At a speed of approximately twenty of August 11, 2002. The night was dark, clear and moonless, wit h light boat thirty - six foot Baja performance boat on Lake Winnipesaukee during the night The defendant’s conviction stemmed from his operation of his father’s

trial in the Superior Court (Smukler, J.). We affirm. conviction for negligent homicide, see RSA 630:3 (Supp. 2004), following a jury BRODERICK, C.J. The defendant, Daniel J. Littlefield, appeals his

L. Sisti orally), for the defendant. Sisti Law Offi ces, of Chichester (Jonathan Cohen on the brief, and Mark

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Susan P. McGinnis, assistant attorney

No. 2003 - 62 7 Belknap

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

unsustainable exercise of discretion, see Poole, 150 N.H. at 301. question), and we review the trial court’s decisions on these matters for an (scope and wording); State v. Poole, 150 N.H. p. 2 299, 301 (2003) (response to jury N.H. 735, 741 - 42 (2002) (necessity); State v. Evans, 150 N.H. 416, 420 (2003) are all within the sound discretion of the trial court, see State v. Cook, 148 and wording of jury instructions, and the response to a question from the jury omitted). Whether or not a particular j ury instruction is necessary, the scope case.” State v. Bortner, 150 N.H. 504, 512 (2004) (quotations and citations reverse only if the instructions did not fairly cover the issues of law in the instructions adequa tely and accurately explain each element of the offense and them, and in light of all the evidence in the case. We determine if the jury instructions in their entirety, as a reasonable juror would have understood instructions, we evaluate allegations of error by interpreting the disputed language, the rules of law applicable to the case. When reviewin g jury court’s charge is to state and explain to the jury, in clear and intelligible addressing these arguments, we recognize that “[t] he purpose of the trial Several of the defendant’s ar guments involve jury instructions. In

aggravating factor in his sentencing. We address each issue in turn. dismiss for insufficiency of the evidence; and (8) utilizing flight as an “gross deviation,” in response to a jury question; (7) denying his motions to because her husband lied; (6) failing to define “gross,” as used in the term the State to argue that the jury should discount the testimony of a witness of a forensic laboratory analyst could be considered substantively; (5) allowing in an accident; (4) failing to instruct the jury that certai n deposition testimony differences between the duties imposed upon a boater and a motorist involved individual who saw a boat acting “furtively”; (3) not instructing the jury on the jury concerning his alleged post - collision f light; ( p. 2 2) admitting testimony of an The defendant argues that the trial court erred by: (1) instructing the

found guilty solely of the class B felony. This appeal followed. dismis sed. At the conclusion of a nineteen - day jury trial, the defendant was felony. The defendant moved unsuccessfully to have the indictments under the influence of intoxicating liquor while operating a boat, a class A (#03 - S - 007) alleged that he negligently caused the death of another by being proper lookout while operating a boat, a class B fel ony. The second indictment alleged that he negligently caused the death of another by failing to keep a alternative theories of negligent homicide. The first indictment (#03 - S - 006) The grand jury returned two indictments against the defendant, alleging

boat. 9: p. 3 30 p.m. and resulted in the death of John Hartman, the owner of the smaller docks and headed into Meredith Bay. The collision occurred at approximately 3

party. If you believe that I have expressed or suggested an opinion that I favor any party, I now instruct you that I do no t favor any during the trial or in these instructions has caused you to think Just as you are required to be. If anything that I have said or done Throughout the trial I have tried to be fair and impartial.

Earlier, the trial court had also specifically instructed the jury:

important you think it is. connection with all the other evidence in the case and decide how You should consider the evidence of flight by the evidence [sic] in tending to show actual guilt, but you are not required to do so. of guilt and you may also consider feelings of guilt as evidence However, you may consider flight as tending to show feelings

guilt which do not necessarily reflect actual guilt. Innocent people sometimes hav e a fear of authority or feelings of variety of reasons. Flight does not create a presumption of guilt. believe that it does, I instruct you that flight may be motivated by a It is up to you to decide whether the evidence shows this. If you [Y]ou have heard evidence that may show that t he defendant fled.

The trial court gave the following instruction:

defendant’s flight. trial court’s instruction and could have inferred guilt from the the defendant fled and further, the jury could have followed the support it, the jury could easily infer that there was evid ence that [B]y giving the flight instruction when there was no evidence to

because: “totally inconsistent with the concept of flight,” and that he was prejudiced language concerning ‘flight from the police.’” He argues that his actions were instruction that differed from the pattern jury instruction “in that it lacked the The defendant contends that the trial court erred by giving a flight

e.g., Smith v. Shepard, 1 p. 4 44 N.H. 262, 264 (1999). at trial, nor identified in his notice of appeal, we decline to add ress them. See, arguments were neither made in his objection to the relevant jury instruction Amendment to the United States Constitution. As these constitutional of Part I, Article 19 of the New H ampshire Constitution and the Fourteenth brief, the defendant made passing reference to “due process” within the context concerning his alleged post - collision flight. At the outset, we note that in his The defendan t argues that the trial court erred by instructing the jury 4

suffered significant damage. Police forensics laboratory, all offered expert testimony th at the Hartman boat Dunleavy of the Marine Patrol, and Linda DeNoble, a criminalist with the State that the collision was violent and loud. Sergeant Ouellette and Lieutenant O’Brien all testified that Karen screamed before the impact of the collision, and Hartman; and Stephanie O’Brien. Karen and Kevin Hartman and Stephanie individuals: John Hartman; his wife, Karen Hartman; their son, Kevin On the evening of August 11, the Hartman boat was occupied by four

required assist ance. collided with another boat, and that the individuals on the smaller boat boats was not minor, that the defendant must have been aware that he had The State presented extensive testimony indicating that the collision of the two the boat, and consented to have the police search and seize the b oat itself.” police and voluntarily gave them access to himself, the passengers that were on concept of flight because the “evidence showed that [he] actually contacted the flight was introduced, and that his actions were totally inconsistent with the We also disagree with the defendant’s contentions that no evidence of

Crayton, p. 4 48 P.3d 1136, 1147 (Cal. 2002). cert. denied, 490 U.S. 1037 (1989), overruled on other grounds by People v. People v. Crandell, 760 P.2d 423, 442 (Cal. 1988) (en banc) (citation omitted),

however, a purpose to avoid being observed or arrested. the reaching of a far - away haven. Flight manifestly does require, of guilt, and flight requires neither the physical act of running nor reasonably infer that the defendant’s flight reflected consciousnes s An instruction on flight is properly given if the jury could

assumption of false name). include flight, escape from custody, resistance to arrest, concealment, behavior customarily thought to justify instruction on significance of flight see also State v. Bruneau, 131 N.H. 10 p. 4 4, 117 (1988) (examples of fugitive prejudice of original indictment, and before being reindicted on same charge); following testimony that defe ndant left jurisdiction following dismissal without 134 N.H. 24, 26 - 27 (1991) (instruction on significance of flight justified significance of purported flight may be properly given. See State v. Torrence, direct flight from immediate police apprehension before an instruction on the instruction as a whole. There need not be evidence that a defendant was in Instruction 1.19 (1985), we find no error either in that omission or in the explicit language concerning flight “from the police,” see N.H. Criminal Jury While it is correct that the trial court’s instruct ion did not contain

It is up to you alone to decide the facts in this case. as to the facts in my rulings, you should ignore such an opinion. p. 5 5

counsel participated in a meeting with Ouellette and the deputy county contacted the Belknap Count y Attorney’s office. The defendant’s father and contacted Attorney Carroll on August 12, and that Carroll subsequently testified that it was the defendant’s father, William Littlefield, Sr., who Attorney Carroll (the defendant’s original attorney). Sergeant Ouellette further did not meet with him until September 13 at an interview at the office of the collision at any time between August 11 and August 14; and the defendant collision, testified that the defendant did not call the Marine Patrol or report Sergeant Ouellette, who was “heavily involved” in t he investigation of the

unsuccessfully tried to pass his boat in an improper lane of the channel. seen at the Meredith docks “literally appeared out of nowhere” and Weirs channel, and observed no other boats around his, the Baja that he had headed toward Meredith. Phelps testified that after he slowed to enter the proceeded, Phelps saw the blue lights of two or three Marine Patrol boats Weirs, shortly after a Baja with three people above deck left the docks. As he Meredith docks in his boat at approximately 9:30 p.m. and headed toward the reached its former position. Robert Phelps testified that he departed the with no lights on at all, and that the boat disappeared by the time Heald Meredith Bay and the Weirs. He tes tified that the boat was dead in the water defendant’s Baja, with his spotlight at approximately 9:4 p. 5 5 p.m., between evening, testified that he illuminated a boat, similar in description to the light s was also operating. Benjamin Heald, another boater on the lake that 9:30 and 9:45 p.m., in an area where a Marine Patrol boat with flashing blue the direction of Meredith Bay and heading directly toward the Weirs between Baja, apparently operating with no navigational or stern lights, coming from testified that he encountered a boat, similar in descriptio n to the defendant’s defendant’s boat without lights on after the collision in that area.” Almon Dirth of time of this collision that had seen a boat fitting the description of the reports from “several boaters out on the lak e that evening in a close proximity detection. Sergeant Ouellette testified that the Marine Patrol had received Evidence was introduced that the defendant attempted to avoid

boat yell “help, call 911.” patrol officers on the Littlefield boa t clearly heard another officer on a second running, CD player on, and the boats approximately 1 p. 5 50 feet apart — marine under conditions described by the people on the Littlefield Baja — engines Ouellette and Lieutenant Dunleavy testified that during sound tests conducted Karen Hartman and Stephanie O’Brien corroborated this testimony. Sergeant scene as he attempted to return the Hartman boat to the Meredith docks. and saw no action being taken by the individuals. The other boat departed the mother screamed at them for help and to call 911, but he heard no response three individuals on the other boat looking toward the Hartman boat. His Kevin Hartman testified that, immediately after the collision, he could see p. 6 6

defendant’s Baja, those differences did not render his testimony irrelevant. While Dirth’s description of the boat differed in some respects from the

the testimony. to make the existence of flight more probable than it would have been without scene of his collision with the Hartman boat. Dirth’s testimony had a tendency omitted). The fact of consequence was whether the defendant fled from the State v. Mitchell, 148 N.H. 293, 294 - 95 (2002) (citations and quotation

less probable than it would be without the evidence. consequence to the determination of the action more probable or has any tendency to make the existence of any fact that is of unreasonable to the prejudice of his case. Evidence is relevant if it demonstrate tha t the court’s ruling was clearly untenable or show an unsustainable exercise of discretion, the defendant must determination absent an unsustainable exercise of discretion. To court’s sound discretion, and we will not overturn its Wh ether evidence is relevant is a question for the trial

substantially more prejudicial than probative. the collision. The defendant argues that Dirth’s testimony is irrelevant, and heading directly toward the Weirs between 9:30 and 9:45 p.m. on the night of navigational or stern light s, coming from the direction of Meredith Bay and noted, Dirth testified that he encountered a boat, apparently operating with no clearly not that of the defendant and irrelevant to [the] case.” As previously testimony of [Almon Dirth] who saw a boat acting furtively when that boat was jury concerning flight was “exacerbated” by admitting “the prejudicial The defendant next argues that the trial court’s error in instructing the

We find no error in the trial court’s instruction. any evidence of flight within the co ntext of all the other evidence in the case. Cassell, 129 N.H. 22, 23 - 24 (198 p. 6 6). Finally, the jury was instructed to consider was permissible, but not mandatory, for the jury to infer guilt. See State v. the instruction explained that if the jury believed that flight was proven, then it jury to decide whether the evidence indicated flight by the defendant. Further, The trial court’s instruction clearly explained that it was solely for the

th e boat and gave permission to search, seize, and examine it forensically. August 11 collision, and that the defendant’s father brought the authorities to Marine Patrol of the possibility that his Baja may have been involved in the Dunleavy also testified that it was the defendant’s father who notified the Littlefield Baja at a boathouse in the area of the Weirs channel. Lieutenant attorney, and it was the defendant’s father who brought the authorities to the p. 7 7

arguable. the threshold of admissibility, although its weight is certainly among many pieces of evidence and I can’t say that it falls below dismiss, but I recognize that this witness is one piece of evidence rose or fell on this witness, I would be granting a motion to I’ll tell you straight out, I mean if the case is – if the [S]tate’s case I think given [Dirth’s] observations, the time, the angle, that

evaluate the weight of the evidence. Well, I think that the jury is going to have the opportunit y to

to strike Dirth’s testimony, the trial judge elaborated on this difference: State v. Dahood, 148 N.H. p. 7 723, 727 (2002). In denying the defendant’s motion

determine its admissibility. defense, which affect the weight of the evidence but do not aid to a judge or jury, its deficiencies or weaknesses are a matter of [E] vidence does not have to be infallible to be admissible. If it is of

that such a light was not illuminated. not have had a green and red bow light. Instead, his t estimony indicated only We see nothing in Dirth’s testimony to indicate that the boat he observed may

what the heck is that all about. I saw a little white light towards the front of the boat and I said or anchor light . . . . It was like it was black, ex cept all of a sudden didn’t see the red light or the green light and I didn’t see the stern And the reason it really caught my attention is because I

sudden . . . appeared out of nowhere,” and explained: direct examination, Dirth described his encounter with the b oat that “all of a on its bow, while he contends that Dirth saw “a white light on the bow.” On not have been the Littlefield Baja because the latter had a red and green light The defendant further contends that the boat described by Dirth could

operation as the norm. seat that allowed for operation in a standing or seated position, with standing The cockpit was approximately two - fifths forward from the stern, with a helm thirty - six foot performance boat with a low profile and swept back windshield. one - half to two - thirds forward from the boat’s stern. The Littlefield Baja was a person who was not fully standing in the cockpit, which was approximately low silhouett e and a low sleek, swept back windshield. At the helm was one twenty - six to twenty - eight feet long, without a large superstructure, but with a Dirth testified that he saw “some sort of a performance boat,” approximately Rather, they simply affected the weight to be afforded his testimony by the jury. p. 8 8

that I was going to decline that instruction, I told you that in accident, and the defense had, if you will, notice before I instructed But the defendant was not charged with conduct after an

them as inferences in accordance with p attern. the jury finds, may lead to particular inferences, and I instruct collisions; it simply indicates a particular type of conduct which, if instances. The flight instruction is not tailored to automobile crime. In an automobile collision case, it is, but it i s not in other leave the scene of a crime, if you run away, that that in itself is a don’t think it follows that if you leave the scene of an accident or Wi th respect to the conduct after an accident [instruction], I

In denying the defendant’s request, the trial court stated:

his argument. because the defendant has not demonstrated any unfair prejudice, we reject decided that the trial court did not err in giving the flight instruction, and to [him] by the trial court’s erroneous flight instru ction.” Having already the defendant sought this instruction “in an attempt to mitigate the prejudice under the relevant conduct after an accident statute.” At the close of evidence, on the differences between the du ties imposed upon a boater and a motorist flight instruction was also enhanced by its error in refusing to instruct the jury The defendant further contends that the “trial court’s error in giving the

trial court in admitting Dirth’s testimony. demonstrated any unfair prejudice. In sum, we find no error on t he part of the the instruction concerning flight, we find that the defendant has not was in error. Having already decided that the trial court did not err in giving prejudice upon his previous arguments th at the trial court’s flight instruction Hampshire Rule of Evidence 403. The defendant bases his contention of unfair relevant, it should have been excluded as unfairly prejudicial under New Fin ally, the defendant contends that, even if Dirth’s testimony was

water, all the way to the [Weirs] channel.” of the Baja’s two drives did not work, and he “plowed, basically, through the provided corroboration when he testified that, subsequent to the collision, one plane, which means it was throwing more of a wake.” The defendant himself such corroboration. Dirth also testified that the boat he saw “wasn’t up on testimony of Sergeant Ouellette, Benjamin Heald, and Robert Phelps provided corroborate Dirth’s testimony. To the contrary, the previously - detailed In addition, the defendant argues that there was no evidenc e to p. 9 9

investigation, Maurice Boudreau, a consultant with the State Police forensics boat was visible to the defendant. During the post - collision forensic coll ision. The status of the stern light was relevant to whether the Hartman the stern light on the Hartman boat was illuminated on the night of the The jury heard testimony from various witnesses about whether or not

See Cook, 148 N.H. at 741 - 42; Evans, 150 N.H. at 420. and wording of jury inst ructions, for an unsustainable exercise of discretion. as to whether or not a particular jury instruction is necessary, and the scope review, detailed earlier, we underscore that we review t he trial court’s decision v. B all, 124 N.H. 226, 231 - 33 (1 p. 9 983). Without reiterating our standard of under the State Constitution, and cite federal opinions for guidance only. State Fourteenth Amendment to the Federal Constitution. We first address his claim due process under Part I, Article 15 of the State Constitution and the trial court’s error denied him his right to a fair trial, thus denying his right to New Hampshire Rule of Evidence 801(d)(1)(A). On appeal, he contends that the analyst could be considered as substantive evidence in the case pursuant to instruct the jury that certain deposit ion testimony of a forensic laboratory The defendant further argues that the trial court erred in failing to

instruction concerning conduct after an accident. In sum, we find no error in the denial of the defendant’s request for an

failing to instruct jury on issu e not in dispute). charged with violating. See State v. Bird, 122 N.H. 10, 16 (1 p. 9 982) (no error in instructed the jury that the defendant did not violate a statute he was not that the re quested instruction was not necessary, as it would have essentially never charged with a violation of the statute. Thus, we agree with the State with the requirements of the statute in effect at the time, we note that he was fled.” We disagree. Assuming, without deciding, that the defendant complied defendant and other passengers on the boat did not contact Marine Pa trol and in light of the State’s examination of “witnesses about the fact that the at the scene, the trial court’s refusal to give his proposed instruction was error the collision did not require a person involved i n a boating accident to remain understand his argument to be that, because the statute in effect at the time of (1999) (amended 2004) (“Drownings and Boating Accident Reports”). We The defendant ’s proposed jury instruction was based upon RSA 270:1 - a

didn’t think it was warranted. on it because he’s not been charged on it, and in my discretion, the acceptable argument of the law. But I didn’t need to instruct jury the law on conduct in its argument, and that could have been chambers, and certainly could have brought to the atte ntion of the p. 10 10

trial as proof . . . that the facts in the statement are true. The believe that witness. You may not use the statement made before before trial, you may use that statement in deciding whet her to you find that a witness made an unsworn, inconsistent statement trial that were not consistent with what the witness said at trial. If consider whether the witness made nonsworn statements before Specifically, in deciding whether you believe a witness you ma y Some evidence was introduced for a limited purpose.

. . . .

determine whether they are important or unimportant. . . . You should evaluate inconsistencies and contradictions and do not necessarily mean that you should disbelieve th e witness. contradictions within a witness’s testimony or between witnesses, also, but you are not required to do so. Inconsistencies and witness’s testimony is false, you may choose to distrust other parts cross - examination of the witnesses. If you believe that part of a testimony to believe, you should consider both the direct and the In deciding which witnesses to believe and how much of their

. . . .

vie ws, and the facts of which I took judicial notice. . . . witnesses, exhibits that have been admitted into evidence, the case. The evidence consists of the testimony under oath of the [Y]ou are to decide the facts based only on the evidence in this

The trial court’s earlier instructions read, in part:

proof of the facts” under Rule 801(d)(1)(A). The defendant’s motion was den ied. that his inconsistent deposition testimony could “be used substantively for inconsistent with his trial testimony, and requested that the jury be instructed defendant argued that Boudreau’s prior sworn de position testimony was During a chambers conference after the jury had been charged, the

light, but his deposition itself was not admitted into evidence. was cross - examined with his prior sworn deposition testimony about the stern the stern light was illuminated or not at the time of the collision. Boudreau incident, such as the collision at issue. Thus, he could not determine whether lamp was illuminated. He could not, however, tie that impact to any specific had, at some point, suffered some kind of impact or inerti al shock while the distortion. Boudreau opined that the distortion indicated that the stern light operable, but that the lamp filament showed signs of “mild hot shock,” or laboratory, examined the stern li ght. He testified that the light was still p. 11 11

conjured up by memory. physically while the spoken words uttered at trial can only be spoken words since the written words are readily before them The triers of fact may p lace more emphasis on written rather than

witness’s trial testimony: evidence during deliberations that repeats or emphasizes portions of a (2001). Courts have taken a dim view of allowing a jury to have testimonial room during deliberat ions. Hodgdon v. Frisbie Mem. Hosp., 147 N.H. 286, 291 deciding which items admitted into evidence are to be brought into the jury evidence, but of his trial testimony. The trial judge has wide discretion in transcript, not of Boudreau’s deposition, which had not been entered into Second, the defendant’s claim is factually inaccurate. The jury reque sted a explained above, there was no error in the applicable jury instructions. specific request to have it.” We disagree for several reasons. First, as allow the jury access to the deposition of Mr. [Boudreau] despite [the jury’s] “error [in the trial court’s instructions] was further aggravated by [its] refusal to your best recollection of the testimony.” The defendant now argues that the trial court responded, “A t ranscript can not be provided. You are to rely on transcript of Maurice Boudreau’s testimony. He was the forensic expert.” The During deliberations, the jury asked, “Would it be possible to get a

under the State Constitution. Accordingly, we reach the sa me result under the Federal Constitution as we do States v. Smith, 145 F.3d 458, 460 (1st Cir.), cert. denied, 525 U.S. 953 (1998). 319, 324 - 25 (1997); United States v. Park, 421 U.S. 658, 673 - 76 (1975); United Constitution under these circumstances. See, e.g., State v. Parker, 142 N.H. Constitution offers the defendant no greater protection than does the State of the defendant’s right to a fair trial, in the instructions. The Federal unsustainable exercise of discretion on the part of the trial court, and no denial and intelligible language the issues of law applicable to the case. We find no The trial court’s instructions, viewed in their entirety, explained in clear

use as substantive evidence. swor n deposition to be inconsistent, the instructions placed no limitation on its statements. If the jury did consider Boudreau’s testimony concerning his prior instruction, regarding credibility, applied only to prior unsworn inconsistent that it should consider both. Furthermore, the trial court’s limiting during direct or cross - examination, and the jury was sp ecifically instructed Boudreau’s testimony concerning his earlier deposition was elicited either substantive use of any inconsistent sworn deposition testimony. All of Contrary to the def endant’s contention, the instructions did not prevent

whether to believe a witness. statement made before trial is only to be used by you in deciding p. 12 12

that DeVivo was not a credible witness. Specifically, the Sta te contended that Over the defendant’s objection, the trial court allowed the State to argue

the time of the collision. evidence that the stern light of the Hartman Wellcraft was not illuminated at know where the other boat had come from. DeVivo’s testimony wa s offered as Weirs, but she could not estimate the distance to the other boat, nor did she that at the time she saw the other boat, it was headed in the direction of the DeVivo saw a white boat with a light that we nt on and off twice. She testified Approximately ten minutes later, and for a period of no more than two seconds, departed before the Littlefield Baja did, and they headed for the Weirs channel. the Littlefields at t he Town Docks restaurant in Meredith. The DeVivos Meredith public docks in their own boat, after they had drinks and dinner with at approximately 9:15 p.m. on August 11, she and her husband departed the DeVivo, a long - time friend of the defendant and his wife. DeVivo testified that, because her husband lied.” During the course of the trial, the defense called State to argue that the jury should discount the testimony of [Nancy DeVivo,] The defendant next argues that the trial court erred by allowing “the

by the accid ent reconstruction team. force to slowly bend the stern light pole over, which was the scenario proposed stern light had been on when the Littlefield Baja scraped across it with enough consistent with the condition he would expect to find if the Hartman boat’s We note that Boudreau did testify that the condition of the lamp filam ent was developed this argument, however, we fail to see any error by the trial court. Winstead, 150 N.H. 244, 246 (2003). Even if the defendant had sufficiently characterization of the substance of Boud reau’s opinion. See State v. indicates that the defendant did not specifically object to the State’s review. See State v. Blackmer, 149 N.H. 47, 49 (2003). Further, the record that the def endant has not sufficiently developed this argument for appellate on when the defendant’s boat struck the lamp - post.” We agree with the State was that the damage done to the stern light was consistent with the lamp being allowing the State to improperly argue in closing “that . . . Boudreau’s opinion Finally, the defendant apparently contends that the trial court er red by

the trial court’s response to the jury’s request. involves jury instruction). We find no unsustainable exercise of discretion in objection required to p reserve issue for appeal, particularly where alleged error review. See State v. Gordon, 147 N.H. 576, 577 - 78 (2002) (contemporaneous Consequently, the defendant has not properly preserved this issue for our that the defendant objected to the trial court’s response to the jury. Id. (quotation and brackets omitted). Third, nothing in the recor d indicates p. 13 13

credibility was harmless beyond a reasonable doubt. inconsequential, we find that any error in allowing the State to argue DeVivo’s this obstruction. Because DeVivo’s testimony was both cumulative and intermittent flapping of a portion of the boat’ s canvas top could have caused and the observer. He also testified that, in the case of the Hartman boat, the “flickering light” could be explained by some obstruction between the light bulb cumulative. It was also inconse quential. Lieutenant Dunleavy testified that a on the smaller boat prior to the impact.” DeVivo’s testimony was, therefore, and Christine Poulicakos — had already testified that they “had seen no lights four people on the Littlefield Baja — the defendant, his wife, Brian Connelly, twice in a period of no more than two seconds. The defendant concedes that DeVivo testified that she saw a boat with a light that went on and off

MacDonald, 150 N.H. 237, 240 (2003). cumulative, or inconseq uential in relation to the State’s evidence. See State v. harmless, we consider, among other things, whether the evidence was harmless beyond a reasonable doubt. In determining whether error was has the burden of proving that error in the course of a criminal trial is find that any such error was harmless beyond a reasonab le doubt. The State credibility, and that the jury consequently discounted DeVivo’s testimony, we Even if we assumed that it was error for the State to argue DeVivo’s

restaurant. a lunch, that the DeVivos shar ed with the Littlefields at the Meredith record clearly shows that the receipt was for the drinks and dinner, and not for claims error in the State’s argument concerning the DeVivo’s “lunch tab,” the with the State that his claim is factually inaccurate. While the defendant argument for appellate review. See Blackmer, 149 N.H. at 49. We also agree agree with the State that the defendant has not sufficiently developed this defendant’s premise of further prejudice is fundamentally flawed. Second, we instructions to the jury concerning Boudreau’s testimony. As such, the First, we reiterate our finding above that the trial court did not err in its

We disagree. Boudreau; and the State had no evidence to tie the receipt’s annotation to her. exculpatory; it was therefore consistent with the prior sworn deposition of developed argument, he apparently contends that DeVivo’s testimony was substantive evidence. Although the defendant cites no authority for this thinly instruct the jury that Maurice Boudreau’s deposition testimony was “further increased” the “prejudice” of the trial court’s earlier error of failing to falsely claim a business tax deduction for their meal. He argues that this error DeVivo’s credibility as a witness because her husband may have attempted to On appeal, the defendant contends that it was error to allow the State to argue their personal meal that evening, and that the receipt’s annotation was a “lie.” DeVivo was aware her husband had written “Business lunch” on the receipt for p. 14 14

addition, the defendan t’s failure to become aware of the risk must ordinary risk, that is of a substantial and unjustifiable risk. In In criminal cases, negligence requires proof of more than an

civil cases. . . . Negligence in criminal cases is different from negligence in

circumstances. reasonable person would have acted under t he same aware of the risk was a substantial departure from how a enough. You must find that the defendant’s failure to become defendant’s actions were unreasonable or thoughtless, that is not The key words here are “gross devia tion.” If you find that the

would observe in the situation. was a gross deviation from the conduct that a reasonable person substantial that the defendant’s failure to become aware of the risk failed to become aware of the risk. Second, the risk was so the defendant should have been aware that the risk existed and and unjustifiable risk. This means that you must decide whether prove, first, the defendant failed to become aware of a substantial To prove that the defendant acted negligently, the State must

state at the time he acted; here, that he acted negligently. the definition requires the State to prove the defendant’s mental was the direct result of the defendant’s actions. The second part of the death of anot her. This means that the death of another person that the defendant did a certain act, in this case, that he caused The first part of the definition requires the State to prove

the defendant acted negligently. defendant caused the death of another person, and second, that a reasonable doubt. Thus, the State must prove, fi rst, that the elements. The State must prove each part of the definition beyond operating his boat. The definition of this crime has two parts, or homicide by failing to keep a proper lookout when he was Indictment 03 - S - 006 accuses the defendant of negligent

After the close of evidence, the trial court gave the following instruction: “gross,” as used in the term “gross deviation,” in response to a jury question. The defendant argu es that the trial court erred when it failed to define

proper lookout while he was operating a boat. The trial court’s criminal conduct by the defendant, that is, that he did not have a Further, the trial court’s answer does not refer back to the alleged “gross deviation” from the condu ct of a reasonable person. defendant’s failure to become aware of that risk constituted a substantial and unjustifiable risk and second, whether the the two step process of first determining whether there was a order to find him negligent. The instruction absolves the jury of was a substantial departure from that of a reasonable person in instructed the jury to only decide whether the defendant’s conduct of RSA 626:2, II(d). Further, it was a misstatement of the law as it [T]he trial court’s answer was not supp orted by the plain language

Constitution. Further, he claims: Constitution and the Sixth and Fourteenth Amendments to the Federal denying his right to due process under Part I, Article p. 15 15 of the State [him] his right to having a unani mous jury verdict and a fair trial,” thus provide a “dictionary definition of the word ‘gross’ . . . had the effect of denying “gross” as “flagrant.” On appeal, he contends that the trial court’s failure to “common meaning” of the words, utilizing dictionary definitions to define The defendant objected, arguing that the trial court should provide the

meaning. legal definition; they are to be considered within their common departure. The words “gross” and “substantial” have no specific whether it was a “gross deviation” — in other words, a substantial the defendant’s conduct was a departure, you must determine how a reasonable person would have acted. If you determine that determine whether the defendant’s conduct was a departure from have acted under the same c ircumstances. Then you must there, you must first determine how a reasonable person would I refer you to my [earlier] instructions at page nine. As it states

responded: clarification of the term ‘gross deviation’ in the first charge.” The trial court On the first day of deliberations, the jury asked, “Can we have bett er

the State has proved that the defendant acted negligently. facts and circumstances in evidence in deciding whether or not the operation of a person’s mind. You should consider all the defendant’s mental state, because there is no way of examinin g Keep in mind that there is often no direct evidence of a

acted in the same situation. be a gross deviation from how a reasonable person would have p. 16 16

for an unsustainable exercise of discretion. Poole, 150 N.H. at 301. underscore that we review t he tr ial court’s response to a question from the jury 231 - 33. Without reiterating our standard of review, detailed earlier, we Constitution, and cite federal opinions for guidance only. Ball, 124 N.H. at involves jury instruction). We first address his claim under the State objection required to preserve issue for appeal, particularly where alleged error right to due process. See Gordon, 147 N.H. at 577 - 78 (contemporaneous provide a “dictionary definition of the word ‘gross’” violated his constitutional defendant has preserved only his argument that the tria l court’s failure to sentence of the trial court’s response to the jury question. Consequently, the We agree with the State that the defendant objected only to the final

legal meaning that applies to homicide cases. that applies to the situation; secondly, there’s a specific meani ng, know the common meaning; and secondly — the common meaning are two parts to it. And we believe that, first of all, the jury must We disagree with that, on both parts of that sentence, there

considered within their common meaning.” ‘substantial’ have no specific legal definition, they are to be Oh. The last sentence now reads: “The words ‘gross’ and

. . . .

we agree up to that point. . . . where it says, “in other words . . . ,” it’s a substantial departure, deviation.” We agree to it up to that point. Actually, after that, was a departure, you must determine whether there was a gross to where you get to, “If you determine that the defendant’s conduct I agree with the — we agree with the Court’s instruction up

the defendant stated: responded that he did want the defendant’s position and any suggestions, and The defendant asked if the trial judge “want[ed] our position,” the judge question, the trial judg e read his proposed answer in a chambers conference. the final sentence of the trial judge’s response. In response to the jury instruction, failed to make these specific objections below, and objected only to claims for appeal because he failed to object to the court’s original negligence The State contends that the defendant did not preserve these further

conduct. to expand the idea of negligence to include possible uncharged his operation of the boat was negligent in any way. It thus served answer would allow the jury to convict the defendant if it thought p. 17 17

under these circumstances. See, e.g., Parker, 142 N.H. at 324 - 25; Park, 421 offers the defendant no greater protection than does the State Constitution the response given to the question from the jury. The Federal Constitution part of the trial court, and no denial of the defendant’s right to a fai r trial, in applicable to the case. We find no unsustainable exercise of discretion on the instructions, explained in clear and intelligible language the issues of law In sum, the trial court’s response, whic h incorporated the earlier

deviation.’”). gross deviation is a ‘great or substantial deviation, not just a slight or moderate meaning. See State v. Garcia, 838 A.2d 1064, 1075 (Conn. App. Ct. 2004) (“[A] and directed the jury to conside r those words as having their common court’s response, which equated “gross deviation” with “substantial departure” an exclusive definition. For all of these reasons, we see no error in the trial While “flagrant” might be an adequate definition of “gross,” it is by no means meant more than a deviation that was simply unreasonable or thoughtless. definition of “cause”). The jury instructions made clear that “gross deviation” elaborate definition by the court. See Bird, 122 N.H. at 16 (no error in court’s justice. See RSA 625:3 (1996). “Gross” is not a technical term requiring an we construe the statute according to the fair import of its terms and to promote definition of “gross” in RSA 626:2, II(d) (1996) (definition of “negligently”), and Zwicker, 151 N.H. p. 17 179, 190 (2004). The legislature ha s not provided a discretion to decide how best to aid the jury in its deliberations. State v. specific language requested by a defendant; it is within the trial court’s A trial court is under no obligation to answer a jury’s question with the

circumstances. from how a reasonable person would have acted under the same defendant’s failure to become aware of the risk was a “substantial departure” unreasonable or thoughtless; and (6) gross deviation meant that the mean that the defendant’s failure to become aware of the risk was simply deviation” was a key concept in that difference; (5) gross deviation did not a difference between criminal negligence and civil negligence; (4) “gross conduct that a reasonable person would o bserve in the situation; (3) there was defendant’s failure to become aware of the risk was a gross deviation from the substantial and unjustifiable risk, and that the risk was so substantial that the requiring the State t o prove that the defendant failed to become aware of a whether or not the defendant acted negligently, entailed a two - part test, to prove each element beyond a reasonable doubt; (2) the second element, negligent homicide contained two elements, and that it was the State’s burden As detailed above, the instructions clearly delineated that: (1) the defi nition of instructions given by the trial court. State v. Smith, 149 N.H. 693, 697 (2003). were incorporated into the court’s response. The jury is presumed to follow the written copy of the court’s previous instructions. As such, t hose instructions The trial court’s response specifically directed the jury to refer to the p. 18 18

civil cases. Civil cases involve decisions as to money damages Negligence in criminal cases is different from negligence in

challenged the trial court’s instruction concerni ng this difference: cases and negligence in civil cases. Neither the State nor the defendant At the outset, we emphasize the difference between negligence in criminal

Evans, 150 N.H. at 424 (citations omitted).

context, not in isolation. favorable to the State and examine each evidentiary item in standard, however, we still consider the evidence in the light most must exclude all rational conclusions except guilt. Under this reasonable doubt. When the evidence is solely circumstantial, it most favorable to the State, could have found guilt beyond a of the evidence and all reasonable inferences from it in the light the defendant must prove that no rational trier of fact, viewing all To prevail on his chal lenge to the sufficiency of the evidence,

Further: State v. Pittera, 139 N.H. 257, 260 (1994) (quotations and citations omitted).

both motions is the same. in proving the State's case. Therefore, the issue on appeal as to he takes the chan ce that evidence presented in his case may assist defendant is not required to present a case, if he chooses to do so, State. We review the entire trial record because, even though the inferences arising therefrom in the manner most favorable to the of a motion to dismiss, we view the evidence and reasonable guilty of the crime charged. When reviewing the trial court's denial was insufficient to prove beyond a reasonable doubt that he was entirety, giving the State the benefit of all reasonable inferences, [T]he defendant had to establish t hat the evidence viewed in its

To succeed on his motions to dismiss:

evidence to support the charge that [he] failed to maintain a proper lookout.” 006. The defendant contends that the State “did not present sufficient evidence, the defendant unsuccessfully mov ed to dismiss indictment #03 - S - At the conclusion of the State’s case, and again at the close of all the

under the Federal Constitution as we do under the State Constitution. U.S. at 673 - 76; Smith, 145 F.3d at 460. Accordingly, we reach the same result p. 19 19

reasonable care. perceive that risk must have been a gross devia tion from must have been substantial and unjustifiable, and the failure to blameworthiness in the conduct that caused it. The risk involved failure to perceive a risk of death, but also some serious wrong. . . . [C]riminally negligent homicide r equires not only a to anyone who shares the community's general sense of right and carelessness must be such that its seriousness would be apparent serious than that for ordinary civil negligence, and that the carelessness required for criminal negligence i s appreciably more on every act of carelessness resulting in death, that the [We] have emphasized that criminal liability cannot be predicated

compelling the words of the Court of Appeals of New York: State v. Ebinger, 135 N.H. 264, 265 ( p. 19 1992) (quo tation omitted). We find an objective test, not by reference to the defendant’s subjective perception.” failed to become aware of a substantial and unjustifiable risk is determined by see RSA 626:2, II(d). We have previously stated that “[w]hether the defendant State v. Strescino, 106 N.H. 554, 556 (1965) (quotation and emphasis omitted);

observe in the actor's situation. deviation from the standard of care that a reasonable person would his conduct and the circumstances known to him, involves a gross actor's failure to perceive it, considering the nature and purpose of conduct. The risk must be of such a nature and degree that the risk that the material element exists or will result from his offense when he should be a ware of a substantial and unjustifiable A person acts negligently with respect to a material element of an

negligence. Instead: negligence may not be convicted on evidence that establishes only ordinary entails cr iminal negligence. Accordingly, a person charged with criminal We recognize that not every act of carelessness that results in a death

acted in the same situation. be a gross deviation from how a reasonable person would have addition, the defendant’s failure to become aware of the risk must ordinary risk, that is of a substantial and unjustif iable risk. In In criminal cases, negligence requires proof of more than an

person would exercise under the same circumstances. simply the failure to exercise the degree of care that a reasonable the negligence standard is lower. Neglige nce in civil cases is resulting from, for example, an automobile accident. In such cases p. 20 20

and remained illuminated. Christopher Tsakiris, an assistant service manager striping, as it ran over Mr. Hartman’s chest, because the stern light was on and that she was able to see the hull of the Baja, including its color and navigation lights were turned on when the Hartman boat le ft the public docks, the docks again in the ambulance.” Stephanie O’Brien testified that the lights of their boat were on “from the time we left the dock until after we left during and after the collision. Karen Hartman testified that the navigation boat away from the Meredith public docks, and that those lights remained on testified that he checked for the “proper navigation lights” before piloting the light, visible for 360 degrees at a distance of two miles. Kevin Hartman testified that the State requires all recreational vessels to carry a white stern was properly illuminated at the time of the collision. Lieutenant Dunleavy There was substantial evidence that the stern light of the Hartman boat

smaller boat. one and one - half seconds for the length of the defendant’s boat to ride over the that speed — some thirty feet per second — it would have taken only one to Lieutenant Dunleavy provided expert accident reconstruction testimony that at speed of approximately twenty - eight miles per hour at th e time of the collision. light boat traffic, smooth water, and good visibility. The Baja was traveling at a Hartman Wellcraft motorboat occurred on a dark, clear, moonless night, with the thirty - six foot Littlefield Ba ja performance boat and the twenty - foot of which we detail here. We have previously detailed that the collision between evidence concerning the defendant’s failure to keep a proper lookout, only some our overall stan dard of review for a motion to dismiss, we have reviewed the Keeping in mind this heightened standard for criminal negligence, and

brackets, ellipsis and emphasis omitted). People v. Boutin, 555 N.E.2d 253, 254 - 55 (N.Y. 1990) (citations, quotations,

death results, is not enough. criminally negligent homicide; his nonperception of a risk, even if unjustifiable risk of death, he has not committed the crime of blameworthy conduct creating or contributing to a substantial and . . . Hence, unless a defendant has engaged in some

influence them to avoid creati ng undesirable risks. awareness of the potential consequences of their conduct and conduct as criminal, endeavored to stimulate people towards other persons in society. The Legislature, in recognizing such only because the actor is in sensitive to the interests and claims of undesirable. It proscribes conduct which is inadvertent as to risk provide an offense applicable to conduct which is obviously socially . . . [T]he crime of criminally negligent homicide serves to p. 21 21

he hadn’t undone the stern line.” The defendant testified t hat as he piloted boat’s stern light, and in pulling away from the dock, because he “realized that before 9:30 p.m., he observed that the operator had difficulty installing the Phelps testified that as the Baja prepared to leave the Meredith docks shortly had jet lag or . . . he just didn’t seem wide awake and bright - eyed.” Robert overseas, she testified that he “looked tired,” and she thought “that maybe he defendant had returned the previous day from a two - week business trip defendant at the Town Docks restaurant that evening. Aware that the Judith Kelley, a long - time friend of the defendant’s, spoke to the

slurred, and he was unsteady on his feet. the defendant wa s obviously impaired and “visibly intoxicated,” his speech was defendant that evening. He believed the defendant had had “a lot to drink”; acquaintance for many years. Chief Jaran testified that he spoke with the his feet. Jeff Jaran, the chief of police in Sandwich, knew the defendant as an been drinking too much — he was slurring his words, and was unste ady on because she couldn’t understand him very well; it appeared to her that he had started to talk with the defendant that evening, but eventually walked away Girard, who had known the Littlefields for a number of years, testified that she “Wow, he seems intoxicated.” Tsakiris testified to this same incident. Diane Docks restaurant. Plimpton also testified that he commented to Tsakiris, apparently stumblin g up the stairs from the beach to the bar area of the Town approximately 9:00 p.m., he observed the defendant grab a railing after over the course of the evening in Meredith. Steven Plimpton testified that at testified that he drank two full glasses of wine, and a portion of a third glass, testified that he drank four beers during the afternoon of August 11. He a lso consumption of alcohol and his attention level that evening. The defendant There was significant evidence presented concerning the defendant’s

collision. without some or all of their lights on, yet he had seen them in time to avoid a lights on; and that he had often encountered boats on the lake at night after extinguishing his spotlight he could see that the boat had no navigational illuminated with his spotligh t was several thousand feet away from him; that lights on the boat. Benjamin Heald testified that the boat he initially maneuver to avoid it, although he could not see any navigational or stern was able to see the boat he encountered at approximately 150 feet and without the proper navigation lights illuminated. Almon Dirth testifie d that he August 11. Lieutenant Dunleavy testified that boats can be seen at night even There was evidence that visibility was good to excellent on the night of

testified to the same, and that the s tern light was “[v]ery bright.” Tsakiris’ friend who was with him that evening at the Town Docks restaurant, Hartman boat returned and that its stern light was on. Steven Plimpton, at a Laconia marina, testified that he was at the Meredith docks when the p. 22 22

relied upon today. the Court's decision . . . has been ex panded and continues to be not convinced of the defendant's guilt. The rationale supporting acquittal or the conviction, this does not mean that the jury was show that the jury did not voice its true conclusions in either the Instead, the Court stated that although inconsis tent verdicts may consistency among multiple - count verdicts is not necessary. The United States Supreme Court held in 1932 that entitle the defendant to relief. . . . criminal i ndictment need not be rationally reconciled, and does not jury verdicts against a single defendant on a multiple - count [U]nder federal and State law, the inconsistency of simultaneous affirming the defendant’s conviction, we stated: basis, his conviction must be reversed. See Brown, 132 N.H. at 323, 328. In He asserted that if the jury’s verdicts could not be reconciled on a rational inconsistent with the jury’s simultaneous acquittals on the other two charges. separate dates. On appeal, he argued that the jury’s guilty verdict was count indictment for being an accomplice to receiving stolen property on three In State v. Brown, the defendant was convicted on one count of a three -

Brown, 132 N.H. 321 (1989); Ebinger, 135 N.H. 264; Pittera, 139 N.H. 257. deliberating on either charge, belies the defendant’s argument. See State v. verdicts, and the ability of the jury to consider all of the evidence in agree with the State, as our established jurisprudence regarding inconsistent defen dant’s intoxication on the charge of failure to keep a proper lookout. We evidence. The State argues that the jury could consider the evidence of the cannot consider that same evidence in our review of the sufficiency of the on the charge of failure to keep a proper lookout. Thus, he argues that we could not take into account evidence of his intoxication i n deciding its verdict contends that because the jury acquitted him on indictment #03 - S - 007, it the Baja was impaired by alcohol to any degree. The defendant further Mr. Hartman’s death did not occur because the defendant’s ability to operate indictment #03 - S - 007 meant that it had reached a unanimous decision that The defendant contends, however, that the jury’s verdict of not guilty on

night, and his failure to see a properly illuminated boat in front of him. piloting the Baja, the speed at which he operated his boat on a dark, moonless substantial evidence of the defendant’s intoxication, his attention level while Given our standard of review in this case, we believe there was

Weirs and some boats “way out in the distance.” that prior to the collision, he was looking “straight ahead” at the lights on the around his wife, with whom he carried on a conversation. He further testified the Baja, he held the boat’s wheel with one hand and had his other arm p. 23 23

defendant was driving his truck when it struck and killed a fifteen - year - old failing to keep a proper lo okout while operating a boat. In State v. Ebinger, the deliberation on the charge that he negligently caused the death of another by of the evidence, including that of the defendant’s intoxication, in its Our jurisprudence also makes clear that the jury was free to consider all

defendant’s conviction. See id. acquittal on indictment #03 - S - 007 does not require us to reverse the the evidence, or any other particular reason. We thus conclude that the acquittal stemmed either from jury error, leniency, nullification, insufficiency of Even assuming that the two verdicts are inconsistent, we cannot infer that the the jury unanimously agreed that the defendant was not guilty of that charge. operating a boat while under the influence of intoxicating liquor, meant that In this case, the jury’s verdict of not guilty of n egligent homicide by

Id. at 328 - 30 (citations, quotations and brackets omitted). know which one to choose. wrong on the merits. If we were to vacate only one, we would never vacate each verdict, one of our decisions would presumably be not, standing alone, indicate where the error lies. If we were to the two inconsistent verdicts is wrong, their inconsistency does Supreme Court . . . , that although it may be assumed that one of

This court has recently noted, similar to the United States jury verdicts from review under these circumstances. deliberations. According to Powell, the better rule is to insulate or leniency, it would be necessary to inquire into the jury's or more i nconsistent verdicts, if any, was based on error, mistake, conviction will stand. Before a court could determine which of two support a determination of guilt beyond a reasonable doubt, the concludes that sufficient evidence was introduced at trial to verdict bas ed on insufficient evidence. If the appellate court arrived at its guilty finding, because he or she can appeal the position to determine whether the jury irrationally or erroneously based upon jury error. The defendant, however, is in a superior Constitution's do uble jeopardy clause from appealing an acquittal circumstances, the government is prevented by the United States verdict on a different count of the same offense. Under these count, and through leniency or mistake arrived at the not guilty likely that the ju ry correctly reached the guilty verdict on one assumed that they necessarily aid the government. It is just as even if inconsistent verdicts reflect jury error, it should not be As [United States v. Powell, 469 U.S. 57 (1984)] explains, p. 24 24

the defendant on the first indictment, but convicted him on the second. The operating the boat, thereby causing the death of another. The jury acquitted that he failed to pay due attention and failed to see a person in the water while at excessive speed and excessively close to shore; the second indictment alleged homicide. The first indictment alleged negligence, based upon operating a boat indictments, pursuant to RSA 630:3, alleg ing alternative theories for negligent who was swimming in the lake. The defendant was charged in two Suncook Lake when the boat and its propeller struck and killed a young boy In State v. Pittera, the defendant was operating his motorboat on Lower

Id. at 266 - 6 7.

defendant's alcoholic intake and its effect upon his behavior. acknowledged . . . , the jury was properly permitted to consider the the defendant was criminally negligent. As the defendant factoring eviden ce of alcoholic consumption into its conclusion that defendant on the first count, however, did not preclude it from guilt beyond a reasonable doubt. The jury's inability to convict the evidence of the defendant's intoxication insufficient to establish his indicates that one or more of the jurors may have considered the The jury's failure to reach a verdict on the first count

Id. at 265 - 66 (quotation and brackets omitted). We concluded:

that a reasonable person would observe in the situation. aware of the risk constituted a gross deviation from the conduct the accident to conclude that the defendant's failure to become the evidence that the defendant had been drinking on the day of her. Furthermore, the jury could have combined this finding with defendant's place, would have seen [the victim] and avoided hitting the jury could have found that a reasonable person, in the

unjustifiable risk that death would result from his conduct, that in finding that the defendant failed to become aware of a substantial and grounds of sufficiency of the evidence. We aff irmed the conviction and stated reach a decision on the intoxication count. The defendant appealed on the The jury convicted the defendant on the second count, but was unable to

causing the death of another. See Ebinger, 135 N.H. at 265. negligently crossed over the white fog line into the breakdown lane, thereby alcohol and caused the death of another; the second count alleged that he 630:3. The first count alleged that he was driving while under the influence of charged in a two - count indictment for negligent ho micide, pursuant to RSA bicyclist, who had been riding in the breakdown lane. The defendant was p. 25 25

Constitution and the Fourteenth Amendment to the United States “due process” within the context of Part I, Article 15 of the New Hampshire introducing this argument in his brief, the defendant made passing reference to flight as an aggravating factor i n his sentencing. We again note that while Finally, the defendant contends that the trial court erred when it utilized

insufficient evidence. see no error in the trial court’s denial of the defendant’s motions to dismiss for trier of fact could have found guilt beyond a r easonable doubt. Accordingly, we proper lookout while operating a boat. Further, we cannot say that no rational that he was consequently guilty of negligent homicide for failure to keep a person would observe in th e situation,” id.; see Ebinger, 135 N.H. at 265; and failure constituted a “gross deviation from the conduct that a reasonable risk” that death would result from his conduct, see RSA 626:2, II(d); that his t hat the defendant failed to become aware of a “substantial and unjustifiable Given all of the evidence in the instant case, t he jury could have found Id. at 261 (citation, quotation and brackets omitted). indictment. the defendant was criminally negligent under the second evide nce regarding the defendant's speed in determining whether acquittal, however, did not preclude the jury from considering insufficient to establish his guilt beyond a reasonable doubt. The that the evidence of the defendant's excessive speed alone was

The acquittal of the defendant on the first count indicates . . . . in the situation. deviation from the conduct that a reasonable person would observe defendant's failure to become aware of the risk constituted a gross swimming area while watching the shoreline, to conclude that the cove area containing numerous do cks and adjacent to a known the evidence that the defendant was traveling rapidly through a him. Furthermore, the jury could have combined this finding with place, would have seen [the victim] in the water and avoided hitting could have found that a reasonable pe rson, in the defendant's

from his conduct, the jury to become aware of a substantial and unjustifiable risk that death would result We affirmed the conviction and stated that in finding the defendant failed

Pittera, 139 N.H. at p. 25 259 - 60. defendant appealed his conviction, arguing insufficiency of the evidence. See p. 26 26

. . . .

aggravating factor. I have to consider that an aggravating factor. being punished for that separately, but that’s certainly an your counsel that that’s not a separate crime . . . . You’re not your own testimony with respect to leaving the scene. I agree with indicate by my sentence I’m not agreeing with you r counsel or even accident, not civil negligence, and in that sense . . . I don’t want to engage in under the same or similar circumstances. It’s not an gross deviation from the conduct that a reasonable person would that’s the nature of the crime, which is . . . criminal neglige nce, a But I also have to consider the aggravating factors, and

judge stated, in part: In addition, and in explaining the reasons for the sentence, the trial

this evidence in imposing the sent ence. See Lambert, 147 N.H. at 295 - 96. determination that the defendant had fled. The trial judge could also rely upon err in giving the jury a flight instruction, as this evidence could support a attempted to avoid detection. We have already held that the trial court did not individuals on that other vessel required assistance, and that the defendant must have been aware that he had collided with another vessel, that the indicating that the collision of the two boats was not minor, that the defendant We have previously detailed that the State presented significant e vidence

requirements of RSA 270:1 - a and did not flee.” We disagree. “review of the record clearly demonstrates that the defendant complied with the defendant contends it was error f or the trial court to consider flight because a discretion of the trial court to determine the duration of a sentence, the one - half to seven years in the State Prison. While acknowledging the broad hi s determination of the sentence, and sentenced the defendant to two and The trial judge included flight as one of the aggravating circumstances in

necessary to that exercise. State v. Stone, 122 N.H. 987, 989 (1982). discretion will occur if the trial judge fails to consider all the relevant factors State v. Lambert, 147 N.H. 295, 295 - 96 (2001). An uns ustainable exercise of sentencing decision under our unsustainable exercise of discretion standard. evidence upon which to rely in imposing sentence, and we review that A trial judge h as broad discretion to choose the sources and types of

brief, we decline to address them. See, e.g., Shepard, 144 N.H. at p. 26 264. notice of appeal or in the questions presented in his brief, nor developed in his Constitution. As these constitutional arguments were neither included in his p. 27 27

NADEAU, DALIANIS, DUGGAN and GALWAY, JJ., concurred.

408. sentence, we find no error in its sentencing order. See Hammond, 144 N.H. at sentence, and as it considered all of the relevant factors in determining the As the trial court could rely upon the evidence of flight in imposing the health needs, and lack of prior criminal involvement in determining sentence). discretion where, among other things, trial court considered defendant’s age, the sentence. See State v. Stearns, 130 N.H. 475, 493 (1988) (n o abuse of defendant and his family, as relevant mitigating factors in his determination of trial, and the tremendous impact of the trial and sentence on both the his lack of any criminal record, hi s demeanor throughout the length of the 401, 408 (1999). The trial judge clearly considered the defendant’s life history, rehabilitation — in crafting the sentence. See State v. Hammond, 144 N.H. considered the traditional goals of sentencing — punishment, deterrence, and A review of the trial judge’s complete remarks reveals that he properly

warranted. in the totality of the circumstances a State Prison sentence is conduct occurring and immediately after the accident . . . I think serious nature of the accident, giv en the fact that — of your those circumstances, given the death of Mr. Hartman, given the that an aggravating factor. I have to consider it. . . . [U]nder all nothing — there was nothing until the next day, and I do consider another boat. I want to make sure everythi ng is okay or there’s the cell phone and saying I was just involved in a collision with other boat to assume everyone was okay. There was no picking up Your instinct was not that. There was no going over to the

. . . was to go over to th e other boat . . . . night on Lake Winnipesaukee. . . . Kevin Hartman’s first instinct not hear the cries for help after you had powered down on a quiet Even if I assume and accept your testimony . . . that you did