2008-272, STATE OF NH v. JOSHUA SHEPARD

The defendant, Joshua Shepard, appeals his conviction for

and orally, for the defendant. Paul Borchardt, assistant appellate defender, of Concord, on the brief

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Michael S. Lewis, 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. 2008-272 editorial errors in order that corrections may be made before the opinion goes Grafton 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 negligent.

p. 2 to the center of the westbound lane.

failed to prove beyond a reasonable doubt that his conduct was criminally

Huffman motorcycle positioned fifty feet behind the Varden motorcycle, closer bodily injuries. Huffman later died. Both Rick Huffman and the defendant suffered serious evidence was insufficient to support the verdicts and that the verdicts were

unsuccessfully to dismiss the indictments on the ground that the State had Huffman. At the conclusion of the State’s case, the defendant moved alleging that the defendant negligently caused serious bodily injury to Rick

with the Varden motorcycle positioned closer to the double yellow line and the motorcycles were traveling behind Vaughan’s vehicle in staggered positions the scene. The Huffmans were transported to a hospital where Claudia Claudia Huffman, and a car containing Christopher and Kristin Caplice. The charged offenses, the defendant moved for JNOV on the grounds that the

motorcycle then collided with the Huffman motorcycle. The Vardens died at motorcycle carrying Gary and Joyce Varden, a motorcycle carrying Rick and traffic when it hit the Varden motorcycle in the westbound lane. The Varden under the influence of alcohol or drugs at the time. proof of criminal negligence). After the jury returned guilty verdicts on all double yellow line and was a quarter to halfway into the lane of oncoming

negligently caused the death of Gary Varden, Joyce Varden and Claudia

opposite direction included, in order, a car driven by Carleton Vaughan, a involved were speeding. Nor was there any evidence that the defendant was 341 (2003) (holding that vehicular assault statute, RSA 265:79-a, requires highway populated by residences and businesses. Traffic traveling in the to the right to avoid the defendant. The defendant’s car continued across the See RSA 630:3, I; see also State v. Rollins-Ercolino, 149 N.H. 336, accident occurred in Thornton, where Route 49 is a narrow, winding two-lane

The grand jury returned three indictments alleging that the defendant

after he drove into their lane. There was no evidence that any of the vehicles double yellow line in the direction of Vaughan’s car. Vaughan steered his car evidence that the defendant took any evasive action to avoid the motorcycles Waterville Valley, a road that he had traveled hundreds of times before. The approximately two seconds before hitting the Varden motorcycle. There was no At most, the defendant’s car strayed over the yellow line for

Just before the collision, the defendant’s car headed toward the center driving his car eastbound on Route 49 from Interstate 93 to his job in relatively warm and comfortable day, with good visibility. The defendant was Laconia’s Motorcycle Week, Sunday, June 11, 2006, which was a partly cloudy,

three others. The accident happened at approximately noon on the first day of vehicle accident that seriously injured him and another motorist and killed reference to the defendant’s subjective perception. p. 3 “substantial and unjustifiable risk” is determined by an objective test, not by determination.”

observe in the situation.” Whether the defendant failed to become aware of a sufficiency of the evidence and we review the entire trial record to make that

is the risk of death,

negligently as defined in RSA 626:2, II(d) (2004). and . . . its seriousness [must] be apparent to anyone who shares the negligence is appreciably more serious than that for ordinary civil negligence, Littlefield, 152 N.H. 331, 350 (2005). “[T]he carelessness required for criminal constitutes a gross deviation from the conduct that a reasonable person would moving to dismiss, however, the issue on appeal as to both motions is the convicted on evidence that establishes only ordinary negligence. See State v. negligent. “Because the defendant chose to present a case after unsuccessfully negligence, however, and a person charged with criminal negligence may not be that the evidence was insufficient to establish that his conduct was criminally carelessness that results in a death or serious bodily injury entails criminal charge is the risk of serious bodily injury, see RSA 265:79-A. Not every act of could have found guilt beyond a reasonable doubt. see RSA 630:3, I; the risk at issue for the vehicular assault and all reasonable inferences from it in the light most favorable to the State, In the instant matter, the risk at issue for the negligent homicide charges

264, 265-66 (1992). assault, the jury must have found, beyond a reasonable doubt, that he acted State v. Ebinger, 135 N.H.

evidentiary item in context, not in isolation. must be of such a nature and degree that his failure to become aware of it exists or will result from his conduct.” RSA 626:2, II(d) specifies that “[t]he risk become aware of a substantial and unjustifiable risk that the material element aside the jury’s verdict based upon sufficiency of the evidence. He contends “negligently with respect to a material element of an offense when he fails to Rollins-Ercolino, 149 N.H. at 341. Under RSA 626:2, II(d), a person acts guilty of a class B felony when he causes the death of another negligently”); defendant must prove that no rational trier of fact, viewing all of the evidence

To have convicted the defendant either of negligent homicide or vehicular

consider the evidence in the light most favorable to the State and examine each all rational conclusions except guilt. Id. Under this standard, however, we still 416, 424 (2003). When the evidence is solely circumstantial, it must exclude motions to dismiss the indictments at the close of the State’s case and to set State v. Evans, 150 N.H.

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

State v. Hull, 149 N.H. 706, 711-12 (2003).

The defendant first argues that the trial court erred when it denied his

grounds, and this appeal followed. against the weight of the evidence. The trial court denied the motion on both p. 4 4

failing to perceive the risk, but also in causing it.

observe in the situation. constituted a gross deviation from the conduct that a reasonable person would watching the shoreline, to conclude that his failure to become aware of the risk

him. defendant’s place, would have seen the victim in the water and avoided hitting defendant’s consumption of alcohol; in Pittera, it was his speeding. caused it. In Littlefield and Ebinger, the conduct that caused the risk was the defendant failed to perceive the risk, but also that his conduct wrongfully In all three of these cases, the proof established not only that the affirming his conviction, we emphasized the defendant’s conduct, not only in propeller struck and killed a young boy who was swimming in the lake. In Id.

breakdown lane. containing numerous docks and adjacent to a known swimming area while influence of alcohol and that he drove across the white fog line into the the evidence that the defendant was traveling rapidly through a cove area Id. at 261. Furthermore, the jury could have combined this finding with

struck and killed a teenaged bicyclist. We concluded that the jury could have found that a reasonable person, in the Pittera, 139 N.H. at 260-61.

operating his motorboat on Lower Suncook Lake when the boat and its failure to see a properly illuminated boat in front of him. In State v. Pittera, 139 N.H. 257, 259 (199 p. 4 4), the defendant was the speed at which he operated his boat on a dark, moonless night, and his

Id. at 266.

conduct, which included evidence that he was driving while under the boat’s owner. we pointed to the evidence of the defendant’s blameworthy, risk-creating the length of the larger boat rode over the smaller boat, killing the smaller

135 N.H. at 267. In that case, the defendant was driving his truck when it the evidence was insufficient to convict him of negligent homicide. Ebinger, Similarly, in has not engaged in criminally negligent conduct. Ebinger, we likewise rejected the defendant’s assertion that

creating conduct: his intoxication, his lack of attention while piloting the boat, homicide, we pointed to the substantial evidence of his blameworthy, risk-

Id. at 333. In upholding the defendant’s conviction for negligent

performance boat collided with the stern of a twenty-foot motorboat and then For example, in Littlefield, the bow of the defendant’s thirty-six foot

to a substantial and unjustifiable risk of death [or serious bodily injury],” he defendant has engaged in some blameworthy conduct creating or contributing conduct that caused it.” Id. (quotation omitted). Accordingly, “unless a more than ordinary risk, “but also some serious blameworthiness in the ellipsis omitted). Criminal negligence requires not only the failure to perceive a community’s general sense of right and wrong.” Id. at 351 (quotation and the collision.

p. 5 however, is whether this was the result of an affirmative act.

not give rise to criminal liability.” that their motorcycle was traveling within a foot of the yellow line at the time of

two and one-half and three feet from the centerline. What we do not know,

everyday driving. Many dangerous actions that inattentive drivers engage in do kill someone in that car.” dissenting). Moreover, gouge marks made by the Vardens’ motorcycle show

give rise to criminal liability. criminal negligence as a matter of law. testified that, based upon tire marks, the defendant’s car was likely between quarter to halfway into the lane of oncoming traffic, while a State trooper dissenting). All we know is that some witnesses said that he drove his car a driver. drove over the centerline remains entirely unknown.” Id. (Hannah, C.J., Although the defendant was convicted of negligent homicide, “why he

standard of care that a reasonable person would observe in his situation. Id. at 31 (Hannah, C.J., dissenting).

dangerous, it is an occurrence that, unfortunately, is commonly witnessed in dissent observed: “While wandering over the centerline is certainly very unjustifiable risk that he might hit a car traveling in the opposite direction and

evidence in Utley showed, at best, that the defendant had been inattentive, and See id. at 30-32 (Hannah, C.J., dissenting). As in the instant case, the because it blurs the lines between civil and criminal liability for negligence. As the dissent cogently argued, however, the majority’s opinion is flawed truck, the truck collided with a pickup truck, which then exploded, killing its

garbage truck, which he drove across the centerline. Id. defendant’s failure to perceive that risk constituted a gross deviation from the

aware that driving on the wrong side of the road presents a substantial and person driving a garbage truck around a curve and on a bridge should be two seconds. The defendant’s two-second failure to keep his car in its lane negligent homicide conviction. Id. at 30. The majority concluded that “[a] drifted over the double yellow line and into oncoming traffic for no more than majority concluded that substantial evidence existed to support the defendant’s that he was speeding. At most, the evidence shows that his car inexplicably Id. Viewing the evidence in the light most favorable to the State, the

After the driver of the car in the other lane swerved to avoid the defendant’s

S.W.3d 27 (Ark. 2006). In that case, the defendant was driving a loaded In arguing for a contrary result, the State relies upon Utley v. State, 237

consumed any alcohol or drugs before driving. Nor was there was any evidence In the instant case, there is no evidence that the defendant had proof beyond a reasonable doubt. That turns criminal law on its head,

who crosses the centerline, regardless of the circumstances. defendant] to offer a reasonable hypothesis that does not lead to guilt is not those circumstances are unknown. “Defaulting to an alleged failure by [the circumstances of the defendant’s conduct that control the outcome. Here,

as a matter of law whenever a person dies in an accident caused by a driver

court in not.” person would observe in the situation”? RSA p. 6 626:2, II(d). “It would appear degree of negligence required. consequences of the defendant’s act, no matter how tragic. Rather, it is the demonstrate, however, criminal negligence does not depend upon the virtually any vehicular fatality. As Ebinger, Littlefield and Pitterra culpability is even higher than in cases, and could expand the scope of criminal negligence to encompass Adopting the State’s position here would go well beyond our established

S.W.3d at 32 (Hannah, C.J., dissenting).

to impose criminal liability. Were it otherwise, criminal liability would attach

Krovvidi, we conclude that, without more, such conduct is insufficient

defendant’s violation of a traffic law due to momentary inattention. Like the case, gross negligence is mandated. Yet, as in negligent, constitute a “gross deviation from the conduct that a reasonable ordinance, through inattention, without more, was insufficient to constitute the Krovvidi, there was only the degree of negligence was less than gross negligence, id. at p. 6 694, in the instant negligence but less than gross and wanton negligence. Krovvidi. Whereas in Krovvidi, the required In the instant matter, the degree of negligence required for criminal another person. culpable under the vehicular homicide statute. vehicular homicide after running a red light and causing an accident that killed Id. Id. Under these circumstances, the court ruled that his conduct was not drinking and was not under the influence of any drug and was not speeding. Krovvidi, there were no aggravating factors. The defendant had not been under Kansas law, additional aggravating factors were required. Id. In

Were his tires unevenly worn or balanced? Do these acts, which are not even reversed his conviction, ruling that the defendant’s mere violation of a traffic

negligence, but are they acts of criminal negligence?” jury must have found that his conduct was more than ordinary or simple

Krovvidi, 58 P.3d at p. 6 688. To convict him of this offense, the

(Kan. 2002), persuasive. The defendant in that case had been convicted of Although it is not binding upon us, we find State v. Krovvidi, 58 P.3d p. 6 687

Utley, 237 S.W.3d at 32 (Hannah, C.J., dissenting).

dissenting). Or, did he sneeze? Did he hit a pothole or an object in the road?

CD or the radio? Did his mind wander? All of these acts are certainly acts of “What happened to [the defendant]? Did he doze off? Was he changing a motorcycle.

p. 7 apply his brakes prior to hitting the motorcycles. As a result of the

positioned fifty feet behind and to the right of the Varden motorcycle. motorcycle positioned in the center of its lane and the Huffman motorcycle Varden motorcycle and the defendant’s car then collided with the Huffman traveling behind Vaughan’s vehicle in staggered positions with the Varden

avoid either Vaughan or the motorcycles behind him. Nor did the defendant

the lane of oncoming traffic, at which time it hit the Varden motorcycle. The a car containing Christopher and Kristin Caplice. The motorcycles were car then crossed the double yellow line and continued until it was halfway into because I thought he was going to come over the yellow line.”’ The defendant’s the right to avoid the defendant’s car, the defendant took no evasive action to it actually crossing the line. Despite the fact that Vaughan steered his car to defendant’s car heading towards the centerline for some period of time prior to

Gary and Joyce Varden, a motorcycle carrying Rick and Claudia Huffman, and included, in order, a car driven by Carleton Vaughan, a motorcycle carrying yellow line,” requiring Vaughan to “crowd[] myself over to the right to avoid it at approximately 40 miles per hour. Traffic traveling in the opposite direction

before hitting the Varden motorcycle. In addition, Vaughan noticed the

yellow line. Carleton Vaughan described it as “coming kind of – way toward the eastbound on Route 49, a road that he had traveled hundreds of times before,

The defendant’s car was in the wrong lane for approximately two seconds

motorcycles, Rick Huffman noticed that it began to come across the double comfortable day, with good visibility, the defendant was driving his car when the defendant’s car was approximately 250 feet in front of the upon the weight of the evidence. In Thornton, where Route 49 is a narrow, winding, two-lane highway,

we are obligated to apply,

noon on Sunday, June 11, 2006, a partly cloudy, relatively warm and argument that the trial court erred when it denied his motion for JNOV based favorable to the State, the evidence supports findings that at approximately case, although tragic, is, in my view, not close. Viewed in the light most

BRODERICK, C.J., dissenting. Based upon the standard of review that

DUGGAN and HICKS, JJ., concurred; BRODERICK, C.J., dissented.

In light of our ruling, we need not address the defendant’s alternative

himself innocent.” Utley, 237 S.W.3d at 32 (Hannah, C.J., dissenting). essentially placing [the defendant] in the position of being guilty until he proves situation. p. 8 deviation from the conduct that a reasonable person would observe in the conclude that his failure to become aware of the risk constituted a gross

oncoming traffic for “no more than two seconds,” a reasonable jury could have

defendant’s subjective perception. unjustifiable risk” is determined by an objective test, not by reference to the defendant’s car “inexplicably” drifted over the double yellow line and into

also in causing it.

the defendant was traveling rapidly through a cove area containing numerous

judge to set aside even a verdict supported by sufficient evidence, have seen the victim in the water and avoided hitting him. Whether the defendant failed to become aware of a “substantial and aside the verdict in his role as the “thirteenth juror,” which permits a trial them. While the majority contends that “at most,” the evidence shows that the satisfies the test for criminal negligence. The trial judge, who was asked to set the defendant’s place, would have seen the motorcycles and avoided hitting emphasized the defendant’s conduct, not only in failing to perceive the risk, but Similarly, here the jury could have found that a reasonable person, in swimming in the lake. In affirming his conviction for negligent homicide, we when the boat and its propeller struck and killed a young boy who was Id.

Furthermore, the jury could have combined this finding with the evidence that

could have found that a reasonable person, in the defendant’s place, would from the conduct that a reasonable person would observe in the situation.” Pittera, 139 N.H. at 260-61. We concluded that the jury and degree that his failure to become aware of it constitutes a gross deviation jury of twelve has unanimously determined that the defendant’s conduct conduct.” RSA 626:2, II(d) specifies that “[t]he risk must be of such a nature community’s general sense of right and wrong.” (1994), the defendant was operating his motorboat on Lower Suncook Lake and . . . its seriousness [must] be apparent to anyone who shares the Our case law supports the verdict. In State v. Pittera, 139 N.H. 257

the wisdom of their collective judgment in this case. Spinale, 156 N.H. 456, 465 (2007), declined to do so. I see no reason to doubt

(quotation and ellipsis omitted). In this case, the community has spoken – a and unjustifiable risk that the material element exists or will result from his Littlefield, 152 N.H. at 351

negligence is appreciably more serious than that for ordinary civil negligence, The majority correctly states that “t

material element of an offense when he fails to become aware of a substantial Under RSA 626:2, II(d), a person acts “negligently with respect to a

and Rick Huffman suffered serious bodily injury. defendant’s actions, Gary Varden, Joyce Varden and Claudia Huffman died, unjustifiable risk of death or serious bodily injury.

p. 9 engaged in blameworthy conduct creating or contributing to a substantial and a narrow, winding, two-lane road with oncoming traffic. Thus, the defendant substantially longer than two seconds, despite driving at 40 miles per hour on

respectfully dissent. drivers have not witnessed, and hope never to witness, in their lives. the light most favorable to the State, supports this jury’s determination, I

the defendant was paying no attention to where his car was going for

wrong lane in the face of oncoming traffic, is an occurrence that I venture most reasonable person would observe. Because the evidence in this case, viewed in defendant’s sustained inattention, leading to his car crossing halfway into the such as might be caused by changing the radio or by a sneeze. The

defendant to keep his car in his lane. A rational jury could easily conclude that this case involves far more than an inexplicable two-second failure by the 40 yards) would not support the verdict in this case, the evidence shows that

determining whether defendants have grossly deviated from the conduct that a circumstances” is unfounded. Juries will continue to perform their function of witnessed in everyday driving. This was not a case of momentary inattention, accident caused by a driver who crosses the centerline, regardless of the 9

at 40 miles per hour would mean traveling in the wrong lane for approximately

halfway into the wrong lane into oncoming traffic is not something commonly in “criminal liability [attaching] as a matter of law whenever a person dies in an everyday driving.” As the jury in this case undoubtedly concluded, driving dangerous, it is an occurrence that, unfortunately, is commonly witnessed in

driving in the wrong lane in the face of oncoming traffic for two seconds (which defendant take any evasive action or apply his brakes. Even assuming that oncoming lane until he collided with the motorcycles. At no point did the

momentary inattention,” and its fear that affirming the jury’s verdict will result characterizes this case as “only the defendant’s violation of a traffic law due to dissent’s statement that “[w]hile wandering over the centerline is certainly very Thus, in my judgment, the majority is simply incorrect when it

defendant continued to cross the double yellow line and drive halfway into the

237 S.W.3d 27 (Ark. 2006), is misplaced. The majority quotes approvingly the Respectfully, the majority’s reliance upon the dissent in Utley v. State,

351.

avoid the defendant. Despite forcing Vaughan’s car to move out of his way, the the line at a sufficient rate to require Vaughan to drive his car to the right to defendant’s car actually crossed the double yellow line, it was moving towards

seconds and caused the accident. The evidence showed that before the found that the defendant’s inattention lasted substantially longer than two