2008-826, STATE OF NEW HAMPSHIRE v. JESSICA KELLEY

The defendant, Jessica Kelley, appeals her conviction after

defendant. Timothy P. Gurshin, of Concord, on the brief and orally, for the

assistant attorney general, orally), for the State. assistant attorney general, on the brief, and Susan P. McGinnis, senior Orville B. Fitch II, acting attorney general (Stephen D. Fuller, senior 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. 2008-826 editorial errors in order that corrections may be made before the opinion goes Derry District Court 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

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well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as prove that her ability to operate her vehicle was “impaired to any degree.”

p. 2 that the defendant was guilty of DWI, since the State was required only to remaining evidence presented by the State proved beyond a reasonable doubt walk-and-turn field sobriety tests. Even without the HGN evidence, the

get out, and was unsteady on her feet. She failed the one-leg stand and the

evening. She had difficulty opening her car door, used the door for leverage to strong odor of alcohol and she admitted to having consumed alcohol that stop. Her speech was slurred, her face red and her eyes glassy. She emitted a

with his cruiser. When he pulled her over, she brought her vehicle to a sudden beyond a reasonable doubt.

(holding that evidence of intoxication was sufficient where defendant admitted

double yellow line into the southbound lane, which nearly resulted in a crash Accordingly, the trial court’s failure to exclude the HGN evidence was harmless State v. MacDonald, 156 N.H. 803, 804 (2008) (quotation omitted).

that any error was harmless. The State concedes that the test results were improperly admitted, but argues

State’s evidence.

inconsequential. Lee initially pulled over the defendant for crossing over the overwhelming nature, and the HGN test evidence was merely cumulative or determined that the defendant failed all three tests. Here, other evidence of the defendant’s intoxication was of an

inconsequential in relation to the State’s evidence of guilt.” Id. admitting evidence of the HGN test because Lee failed to administer it correctly. quantity, or weight and if the inadmissible evidence is merely cumulative or the alternative evidence of the defendant’s guilt is of an overwhelming nature,

Id. “An error may be harmless beyond a reasonable doubt if

evidence, including whether the evidence was inconsequential in relation to the the State’s evidence presented at trial, as well as the character of the excluded it was inadmissible because Lee testified that he did not administer it correctly. In deciding whether the State has met its burden, we consider the strength of doubt that it did not affect the verdict. State v. Rogers, 159 N.H. 50, 60 (2009). An error is not harmless unless the State proves beyond a reasonable

nystagmus (HGN), “one-leg stand” and walk-and-turn field sobriety tests. He signs that she was intoxicated. He administered the horizontal gaze defendant. She admitted to having consumed alcohol, and he observed several On appeal, the defendant first argues that the trial court erred in

denied the motion and admitted the evidence. See State v. Dahood, 148 N.H. 723, 735 (2002). The trial court impliedly

At trial, the defendant moved to strike evidence of the HGN test, arguing

cruiser. Making a U-turn, Lee turned on his emergency lights and stopped the southbound lane, nearly side-swiping Londonderry Police Officer Keith Lee’s impaired to any degree. p. 3 the State need only prove beyond a reasonable doubt that the defendant was

I. To prove that the defendant was “under the influence of intoxicating liquor,”

support of this contention, she cites

behavior, constitutes circumstantial evidence of impairment. The State

The defendant essentially argues that a way while she was “under the influence of intoxicating liquor.” RSA 265-A:2,

reasonable doubt, to the exclusion of all rational conclusions except guilt.” In

was sufficient to convict. tests.

the evidence under the plain error doctrine.

other than chemical test results, including direct observations of a defendant’s

(2003), in which we reversed a DWI conviction for lack of sufficient evidence. reasonable doubt that the defendant drove or attempted to drive a vehicle upon State v. Lorton, 149 N.H. 732, 733-35

“[c]onsequently, the State’s evidence had to establish impairment beyond a chemical evidence renders the State’s case a circumstantial case,” and that, defendant’s sufficiency claim. The defendant contends that “the lack of any of the evidence in the trial court, but we agree with the State that the evidence or glassy eyes, did not sway, and was not asked to complete any field sobriety The parties disagree about the applicable standard of review for the

review it for plain error because the defendant did not analyze the sufficiency of MacDonald, 156 N.H. at 804.

To convict the defendant, the State was required to prove beyond a

without deciding that the defendant preserved her challenge to the sufficiency drinking and driving and emitted a strong odor of alcohol, but did not have red See Sup. Ct. R. 16-A. We assume,

contemporaneous and specific objection or motion at trial and that we cannot her conviction. The State argues that this issue was not preserved by a The defendant next argues that the evidence was insufficient to support error, it would not have been harmless. director’s testimony about the defendant’s blood test results, had there been intoxication. See RSA 265-A:11 (Supp. 2008); Dahood, 148 N.H. at 734. alcohol evidence is sufficient, on its own, to constitute prima facie evidence of was not merely cumulative. Id. Moreover, in contrast to HGN evidence, blood Id. Thus, in O’Maley, evidence of the defendant’s blood alcohol content

defendant was involved in a single-car accident, admitted to having been defendant’s guilt was not of an overwhelming nature. Id. at 130. The O’Maley significantly from that at issue here, and the alternative evidence of the O’Maley, the strength and character of the excluded evidence differed

there was no error in admitting a blood sample collection form and a laboratory (2007), cert. denied, 129 S. Ct. 2856 (2009). In that case, we held that, while This case is distinguishable from State v. O’Maley, 156 N.H. 125, 128-30

shot eyes, swayed while standing, and performed poorly on field sobriety tests). having consumed three beers, smelled of alcohol, had slurred speech, blood laymen have always been permitted to testify as to intoxication on

p. 4 and no special skill or learning is requisite to discern it. Untrained

that[ ] [i]ntoxication is a fact open to the observation of every man;

impairment. We noted, however, that:

light of a defendant’s constitutional right not to incriminate himself.

blood content by a breathalyzer or other such methods.” In the same degree of certitude attributed to the chemical analysis of the alcoholic

It has been the law in this jurisdiction for more than a century

defendant’s intoxication or impairment. not discuss whether it constituted direct or circumstantial evidence of We held that the evidence is competent and admissible. Id. at 112-13. We did

despite its lack of scientific basis and whether such evidence was admissible in issues were whether evidence obtained from field sobriety tests is competent

the results of the field sobriety tests do not possess the scientific reliability or in State v. Arsenault, 115 N.H. 109, 111 (1975), where we stated: “Admittedly his eyes were red and glassy and his face was flushed. In reaching our holding in Lorton, however, we relied in part upon dicta

direct observations to be circumstantial, as opposed to direct, evidence of the guilty.” Id. This statement indeed suggests that we considered the trooper’s than direct evidence, and, in some instances, is even more reliable.”). this case excluded all rational conclusions except that the defendant was convict, we stated: “[W]e cannot say . . . that the circumstantial evidence in take a breath test. Id. In holding that there was insufficient evidence to at 733. The defendant admitted to having consumed alcohol but refused to tests; however, the roadway edge where the tests were conducted was wet. Id. performed poorly on the walk-and-turn and the one-leg stand field sobriety

149 N.H at 732. The trooper observed that the defendant smelled of alcohol, stopped the defendant for making a right hand turn without a signal. Lorton, In Lorton, the following evidence was supported by the record. A trooper

F.2d 1373, 1378 (9th Cir. 1974) (“Circumstantial evidence is not less probative evidence can suffice to sustain a verdict . . . .”); United States v. Andrino, 501 Evidence § 11:7, at 270 (7th ed. 1994) (“It is axiomatic that circumstantial State v. Kelley, 120 N.H. 14, 16 (1980); see also 2 C. p. 5 Fishman, Jones on evidence of circumstances from which the existence of a fact may be inferred.” that “[t]he law makes no distinction between direct evidence of a fact and circumstantial evidence of intoxication. In doing so, however, we emphasize clarify Lorton’s implied characterization of all non-chemical evidence as being ambiguities in our holding in Lorton. We, therefore, take this opportunity to impairment,” it “should be clarified or overruled.” Both parties analyze impaired based on such observations is always circumstantial evidence of observations of intoxicated behavior or a witness’s opinion that a defendant is counters that if “Lorton can be said to hold that either a witness’s direct Fishman,

State, could have found guilt beyond a reasonable doubt. rational trier of fact, viewing the evidence in the light most favorable to the context of the statute. 5 alcohol. These facts together constitute direct evidence of impairment in the unsteady movements. She admitted to him that she had been drinking

impairment, “without the need for the factfinder to draw any inferences.” C.

sufficiency of the evidence, the defendant bears the burden of proving that no

line, brought her vehicle to a sudden stop, and that she displayed slow and they can be reasonably drawn therefrom. Id. and also inferences from facts found as a result of other inferences, provided doubt. Id. The trier of fact may draw reasonable inferences from facts proved evidence may be sufficient to support a finding of guilty beyond a reasonable present any type of “evidence which, if accepted as true, directly proves” evidence of intoxication (quotation omitted)); item in the context of all the evidence, not in isolation. Id. Circumstantial defendant drinking and thought he was “obviously intoxicated” was direct N.H. 403, 406 (2006). In reviewing the evidence, we examine each evidentiary

was sufficient to convict in this case. To prevail in a challenge to the Having clarified the scope of Lorton, we now turn to whether the evidence example, Lee observed directly that the defendant crossed the double yellow inferences.” C. p. 5 Fishman, this holding, it is overruled. direct evidence of intoxication). To the extent, if any, that Lorton conflicts with 137 (Ind. 1992) (holding that officers’ observations of the defendant constituted

08 (Miss. Ct. App. 2001) (holding that testimony of a waitress who saw the

constitute the sole form of direct evidence of impairment. In this case, for fact for which it is offered, without the need for the factfinder to draw any supra § 11:6, at 268 n.33. It follows that chemical evidence does not

opinion runs contrary to these definitions of direct evidence. Where a Though the issue was not before the Arsenault court, nothing in that coordination, judgment and alertness. eyewitness.” State v. Newcomb, 140 N.H. 72, 80 (1995) (quotation omitted). have personal knowledge of facts about the crime charged such as an evidence has been defined to include “the testimony of a person who claims to

Direct evidence “is evidence which, if accepted as true, directly proves the

Gowen, 150 N.H. 286, 289 (2003). Id. at 111 (citation, quotations, brackets and ellipsis omitted); see State v.

commonly recognized fact that the consumption of alcohol impairs the basis of sight, smell, speech and locomotion. It is also a p. 6 6

field sobriety tests. she was doing.” In having consumed alcohol and failed the one-leg stand and the walk-and-turn

BRODERICK, C.J., and DUGGAN, HICKS and CONBOY, JJ., concurred. through the different papers, very slow, almost like she . . . didn’t know what stopped her, he observed several signs that she was impaired. She admitted to Affirmed.

sudden stop upon being pulled over. While the defendant in (2004). appeal. Accordingly, we deem it waived. State v. Hofland, 151 N.H. 322, 327 The defendant did not brief the remaining question in her notice of

unremarkable,” id. at 735, whereas here, the defendant failed. at 734. The Lorton defendant’s walk-and-turn test results were “essentially and “walked with a normal gait without stumbling or faltering in any way.” Id.

difficulty producing her registration. While searching for it, she “fiddl[ed] southbound lane, which nearly resulted in a crash with his cruiser. When he immediately produce his license and registration, id., the defendant here had initially stopped the defendant for crossing over the double yellow line into the Lorton was able to doubt that the defendant was guilty of DWI. As previously discussed, Lee over the double yellow line and nearly crashed into his cruiser. She came to a Lorton, 149 N.H. at 734. Here, Lee stopped the defendant because she crossed signal while making a right turn, but “stopped in a safe and prudent manner.” distinguishable from Lorton. In Lorton, the defendant failed to use a turn Contrary to the defendant’s argument, this case is factually

that it was sufficient for a rational trier of fact to find beyond a reasonable Viewing the evidence in the light most favorable to the State, we conclude