2008-308, STATE OF NEW HAMPSHIRE v. GARY DODDS

The defendant, Gary Dodds, appeals his convictions

Schulman on the brief and orally), for the defendant. Getman, Stacey, Schulthess & Steere, P.A., of Bedford (Andrew R.

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Thomas E. Bocian, assistant attorney to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. THE STATE OF NEW HAMPSHIRE

No. 2008-308 editorial errors in order that corrections may be made before the opinion goes Strafford Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as gray and his feet were discolored, swollen and cold to the touch. p. 2 headed south again. could not recall why he backtracked northbound on a non-toll road and then

after he was found, was 96.8 but later dropped to 96.4 degrees. His face was very wet. His oral temperature, taken in the ambulance about fifty minutes khakis and a fleece pullover. He had on dress socks and one shoe, which were driving southbound on the stretch of Route 16 he had already traversed. He

was. He was wearing casual business attire, including a button down shirt, of the toll plaza approximately one half hour later, as the defendant was again 7:39 p.m. on the night of the accident. However, the accident occurred north records reflect that his car passed through the Dover toll plaza southbound at

the defendant was awake and knew who and where he was, but not what day it

his toll when he passed through the toll plaza. The defendant’s EZ pass

whether she knew the whereabouts of the driver. She did not. 2 was inside the car. Peloso then approached the witness’s car and asked her

scene, approximately 550 feet from the Garrison School. When he was found, wooded area west of the Bellamy River, less than a mile from the accident helicopter. He was eventually found by a search and rescue volunteer in a defendant had an EZ pass transponder in his vehicle that automatically paid

passenger side window was down, and that its airbags had deployed. No one

officials searched for him on land, by boat on the Bellamy River, and by Route 16, also known as the Spaulding Turnpike, is a toll road. The

reached the defendant’s car, she noticed that its interior light was on, that its She then walked through a brushy area to the accident scene. When she headlights of the defendant’s car, she ran back into her house and dialed 911. have been on his way to a campaign-related meeting in Somersworth. and she came to the scene. She reported that the defendant was supposed to determining that the car belonged to the defendant, the police called his wife

coverage. Family, friends, emergency personnel and other state and federal seven hours, and his disappearance was the subject of extensive news The defendant’s whereabouts remained a mystery for nearly twenty-

the crash and went out to her driveway to investigate. When she observed the

unsuccessfully searched the area for the driver of the vehicle. After Emergency personnel and firefighters soon arrived at the scene. They

shoulder, stopped and dialed 911. the defendant’s car was on the far side of it. She drove her car onto the where his car left the road, she noticed that the guardrail was bent and that

the Bellamy River. Caren Peloso, who lives on Spur Road, heard the sound of roadway, Spur Road, runs parallel to Route 16. To the west of Spur Road lies A short distance west of where the accident occurred, an adjacent

observed his car swerve left and right and then veer off the road. At the point Portsmouth in a snowstorm. Shortly after 8 p.m., a woman driving behind him omitted.)

p. 3 anything that could be used in a proceeding or investigation.” (Quotation guilty of falsifying physical evidence by injuring his feet because [they] were not 641:6, I. With respect to this charge, the defendant argues that he “is not

accident.

impair its verity or availability in such proceeding or investigation . . . .” RSA

(4) the trial court should have admitted the computer animation of the

he . . . [a]lters, destroys, conceals or removes any thing with a purpose to an official proceeding . . . or investigation is pending or about to be instituted, 3 evidence statute provides: “A person commits a class B felony if, believing that

court should have excluded the expert opinion of his treating neurologist; and reasonable jury could have found him guilty of any of the charges; (3) the trial false public alarms statute or the falsifying physical evidence statute; (2) no

‘communication’ and never ‘reported’ an emergency.” The falsifying physical

indirectly defendant argues that: (1) his conduct did not fall within the meaning of the swerved off of the road.

opinions were not timely disclosed to him. not guilty of false public alarm because he never made any sort of 644:3, I (emphases added). With respect to this charge, he argues that he “is false regarding a[n] . . . emergency, shall be guilty of a misdemeanor . . . .” RSA count of falsifying physical evidence. He filed a motion emergencies involving danger to life or property a report known by him to be

communicates to any governmental agency that commonly deals with

statute. The false public alarms statute provides: “Any person who directly or trial, the defendant was convicted on all charges. This appeal followed. The meaning of the false public alarms statute or the falsifying physical evidence details of what he was doing or where he was going immediately before his car The defendant first contends that his conduct did not fall within the

he and the State had included on their witness lists, arguing that some of her

and one count of conduct after an accident. He was later indicted on one

animation evidence purportedly depicting the accident. After a sixteen-day jury successfully moved to preclude the defendant from introducing computer line up a steep hill, becoming exhausted and collapsing. He did not recall the Following a hearing, the trial court denied the motion in part. The State He recalled swimming across a river, walking for a long time, following a power he left the scene because he smelled smoke and thought his car was on fire. See Super. Ct. R. 98 (C)(1).

portion of the expert testimony of one of his treating neurologists, whom both

The defendant was initially charged with one count of false public alarms

events leading up to it. He recalled that his car swerved and crashed, and that The defendant claimed to have little memory either of the accident or the communicated a report of an emergency that he knew was false.

otherwise result. Thus, to fall within the plain error rule: (1) there must be an indirectly communicate to a governmental agency (2) a report of an emergency

appeal requires a contemporaneous and specific objection.”

to consider errors either not brought to the attention of the trial court or not Indeed, the defendant concedes that these arguments may have been asserted only that the evidence was insufficient to support a conviction. under the plain error rule. See Sup. Ct. R. 16-A. The plain error rule allows us interpretations of RSA 644:3, I, and RSA 641:6, I, whereas in the trial court he The defendant nonetheless argues that we ought to review these issues

interpretation arguments he now advances; thus they are deemed waived. By his own admission, the defendant did not raise at trial the statutory N.H. 587, 588 (1992). “Any objection not raised at trial is deemed waived.” Id.

prove either a ‘report’ or a ‘communication.’” “[P]reservation of an issue for

review. We agree. The defendant’s arguments on appeal concern The State asserts that these arguments have not been preserved for our trial.

p. 6 defendant upon his arrival at the hospital indicated that he did not suffer any accident occurred. Notes from emergency room personnel who treated the signs of a head injury, the bump to his head may not have occurred when the

the paramedic who treated the defendant at the scene did not observe any read colder than the more accurate rectal temperature. A reasonable inference degrees. The State presented expert testimony that oral temperatures often

him wander off from the scene of the accident. She also opined that because was “unusual” if he indeed suffered a head injury significant enough to make accident. Based upon his responses, she testified that his pattern of memory Shortly after the defendant was found, his oral temperature was above 95

State and examine each evidentiary item in context, not in isolation. 6 we still consider the evidence in the light most favorable to the what happened. Credibility determinations are best left to jurors. even though he testified that he hit his head and did not remember much of

a bump with swelling. She asked the defendant to describe his memory of the a core body temperature below 95 degrees would constitute mild hypothermia.

all rational conclusions except guilt. Under this standard, however,

any brain injury, but that he had a moderate closed head injury in the form of The defendant’s own witness, one of his treating physicians, testified that

doubt. When the evidence is solely circumstantial, it must exclude favorable to the State, could have found guilt beyond a reasonable failed to communicate his location, thereby evading search and rescue evidence and all reasonable inferences from it in the light most have found that the defendant failed to return from an undisclosed location and

hospital the day after he was found. She concluded that he had not suffered particular, a neurologist, Dr. Karen Lauze, examined the defendant in the the defendant that cast doubt upon the nature of his claimed memory loss. In The State presented testimony from medical professionals who treated

defendant must prove that no rational trier of fact, viewing all of the We first consider the charge of false public alarms. A rational juror could

To prevail upon his challenge to the sufficiency of the evidence, the

State is that the defendant did not suffer from hypothermia, which would to be drawn from this evidence when taken in the light most favorable to the injuries. The following day, the State gave the letter to the defendant, and he

p. 8 that the defendant had fabricated his memory loss and the cause of his

defendant shortly after he was found. Her letter indicated that she believed reports from the various medical professionals who had examined the her. In the letter, Dr. Lauze described several inconsistencies in the medical

seven days before the start of trial, the State received an unsolicited letter from

the trial . . . .” defendant with . . . all statements of witnesses the state anticipates calling at

would testify regarding what she observed and memorialized in her reports, but

(20) calendar days prior to jury selection . . . the state shall provide the

respect to alleged discovery violations.”

unsustainable exercise of discretion.”

Both parties included Dr. Lauze on their witness lists as someone who

nondisclosure.” State v. Stickney, 148 N.H. 232, 236 (2002). prejudice exists if the defense has been impeded to a significant degree by the decision was clearly unreasonable to the prejudice of his case.” Id. “Actual Superior Court Rule 98(C)(1) provides, in relevant part: “Not less than twenty exercise of discretion is unsustainable, the defendant must show that the

his motion (2003). “This same standard applies to review of the trial court’s decision with

“We will not reverse the trial court’s admission of evidence absent an the woods, this presented an issue of fact for the jury to resolve. testify and a summary of the grounds for each opinion.” Id. deemed waived.”). “state a summary of the facts and opinions to which the expert is expected to

Super. Ct. R. 98(C)(1). Under the rule, the State must also

that her expert opinions were not timely disclosed, causing him prejudice.

in limine to exclude expert testimony from Dr. Lauze. He argues

The defendant next argues that the trial court erred in partially denying

p. 9 was impeded to a significant degree, and the trial court did not commit an

Accordingly, he has failed to show that he suffered prejudice or that his defense testified that his injuries were consistent with his version of what transpired. cross-examine her. In addition, the defendant called three doctors who

did not testify until February 1, and the defendant had the opportunity to

other than the defendant, and does not know how the damage to the vehicle vehicle first hand, never spoke with anyone who was at the accident scene

examined him and he listed her as one of his own witnesses for trial. Dr. Lauze the court for time to depose her. Moreover, he was aware that Dr. Lauze had the defendant did not rest his case until February 15, 2008. He did not ask

Donovan used in creating the animation, and that “Donovan never saw the

was or was not faking his exposure to the cold.

disclosure of Dr. Lauze’s January 21, 2008 letter occurred on January 22, and

was offered to specifically substantiate the[ ] facts and figures” Dole and computer animator, both testified. The trial court found that “[n]o evidence created the script upon which the animation was based, and Mark Dole, the

testify to an ultimate conclusion regarding whether the defendant regarding the defendant’s head injury. Dr. Lauze, however, cannot court’s admission of the testimony caused him prejudice. The State’s presented. Dr. Lauze may also give her ultimate medical diagnosis 98(C)(1), the defendant has failed to carry his burden of proving that the trial Lauze’s unsolicited letter six days prior to trial failed to comply with Rule

computer animation. Daniel Donovan, the accident reconstruction expert who

a head injury and testify to the injuries that the defendant

We disagree. Assuming, without deciding, that the State’s disclosure of Dr.

presence of the jury, the trial court held a hearing on whether to admit the illustrate the testimony of his traffic reconstruction expert. Outside the computer animation purporting to depict how the accident occurred to

the State lays the proper foundation, to the signs and symptoms of that the defendant presented. Dr. Lauze may also testify, provided her, to retain his own expert or to prepare his cross-examination adequately. symptoms of exposure and her testimony regarding the symptoms

Finally, the defendant argues that the trial court should have admitted a

expert testimony caused him prejudice because he did not have time to depose medical records. Dr. Lauze can further testify as to the signs and

The defendant argues that the State’s late disclosure of Dr. Lauze’s professional and to her practice of reading and interpreting

Dr. Lauze can testify as an expert as to her experience as a medical

disclosure. The trial court denied the motion in part, ruling: moved to exclude the expert opinions it contained based upon the late prejudiced him under the facts of this case.

p. 10 the defendant has failed to carry his burden of proving that excluding it absent an unsustainable exercise of discretion. already provided by the diagrams and testimony. Therefore, we conclude that computer animation would not have provided the jury with any evidence not

State. was not substantially outweighed by the danger of unfair prejudice to the 10 specifically substantiate the[ ] facts and figures” and that its probative value evidence.” We defer to the trial court in determining admissibility of evidence of undue delay, waste of time, or needless presentation of cumulative diagrams and the basis for his opinions and conclusions to the jury. Thus, the prejudice, confusion of the issues, or misleading the jury, or by considerations

animation because it had probative value even without “evidence . . . to the accident. Upon direct and cross-examination, Donovan explained the DALIANIS, DUGGAN and HICKS, JJ., concurred. its probative value is substantially outweighed by the danger of unfair diagrams drawn by Donovan depicting what Donovan believed occurred during other than an illustration of Donovan’s expert testimony. At trial, he presented Affirmed.

State’s motion to exclude the animation. “was clearly untenable or unreasonable to the prejudice of his case.” say that the trial court unsustainably exercised its discretion by granting the

interpret this argument to mean that the trial court erred in precluding the meaning of the expert’s testimony does not make it unduly prejudicial.” We further asserts: “That [the animation] might impress upon the jury the claims.” Rule 403 provides: “Although relevant, evidence may be excluded if sufficient to support a finding that the matter in question is what its proponent The defendant does not argue that the computer animation was anything identification as a condition precedent to admissibility is satisfied by evidence

trial court’s evidentiary ruling unless the defendant can demonstrate that it 746, 758 (2008), cert. denied, 129 S. Ct. 1623 (2009). We will not reverse the

animation was sufficiently authenticated as required by Rule 901(a). He

Rule 901(a) provides that “[t]he requirement of authentication or

and 403. excluded the computer animation under New Hampshire Rules of Evidence 901 fair and accurate representation of the accident.” Accordingly, the trial court

expert opinion.” We interpret this argument to mean that the computer degree of scientific foundation for an animated chalk than for the underlying The defendant argues that “[t]he trial court erred by requiring a greater

burden to prove that Mr. Donovan’s script, and therefore the animation, [was] a occurred.” The trial court ruled that “the defendant ha[d] failed to meet his