2011-786, State of New Hampshire v. Lynn Dion

The defendant, Lynn Dion, appeals her conviction for

on the brief and orally), for the defendant. Wescott, Dyer, Fitzgerald & Nichols, P.A., of Laconia (Allison M. Ambrose

assistant attorney general, on the brief and orally), for the State.

to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 22 as conclusion that, rather than experiencing a momentary distraction such as

p. 2 Based upon these findings, the officers’ accident report reflected their

the road ahead, either by applying her brakes or by turning her steering wheel. would have taken the defendant 1.5 seconds, at most, to react to someone in Gonnella stepped off the curb until the impact. They also determined that it

officers concluded that 13.5 seconds elapsed from the time that Bassett and

per hour. Based upon an average walking speed of four feet per second, the at the time of the collision, the defendant’s vehicle was travelling at 30 miles forward, and the statement of the defendant all supported the conclusion that

collision. The skid marks on the road, the distance that the victim was thrown

Law enforcement officers conducted reconstruction analysis of the

she was on the phone at the time of the collision.

which is on North Main Street at the west end of the bridge. She denied that

the defendant said that she made the last call while passing Benson’s Auto,

admitting that she made several calls on her cell phone throughout her trip, bridge, she heard a loud “pop” and felt glass coming into her car. Although Gonnella in the crosswalk. She stated that just before reaching the end of the

completely dark. The defendant told Carlson that she did not see Bassett and

arrived at the scene, the street lights were on, though the sky was not When Sergeant Richard Carlson of the Franklin Police Department

defendant’s car, resulting in a fatal brain injury.

unresponsive. Bassett had been hit by the right front bumper of the wearing white pants and a light-colored denim jacket, in the road nearby, sidewalk with a cell phone in her hand. Gonnella discovered Bassett, who was

regained consciousness a few minutes later, she saw the defendant on the

eastbound lane. Gonnella then heard a “bang” and “went down.” When she

four feet, crossing the westbound lane of Central Street and most of the view of the crosswalk from the traffic on the bridge. They walked about fiftywestbound lane. The bridge was level, with no trees or leaves obstructing the

just stepping off the curb on Central Street at the other end of the bridge in the

the eastbound lane at the west end of the bridge, Bassett and Gonnella were Franklin. As she turned the corner of North Main Street onto Central Street in In the meantime, the defendant was driving from Sutton to her home in

cross Central Street. crossing sign. After checking both ways for oncoming traffic, they began to was well lit by streetlights, and was marked with a yellow and black pedestrian

Street, they stopped at a crosswalk, which had recently been repainted white,

umbrella for support while she walked. After crossing the bridge on Central They walked slowly, and Gonnella, who was about sixty years old, used an Franklin. Shortly before 9:00 p.m., they began walking to Gonnella’s home.

victim, Genny Bassett, and her friend, Elsa Gonnella, were at Bassett’s home in The jury could have found the following facts. On June 28, 2009, the establish criminal negligence.

p. 3 and of itself, does not rise to the level of blameworthy conduct required to

that using a cell phone while driving is not illegal in New Hampshire and, in insufficient evidence of any wrongful or blameworthy conduct. She contends motion to dismiss and motion to set aside the verdict because there was

The defendant first argues that the trial court erred in denying her

guilt. The trial court denied the motion. This appeal followed. the verdict, arguing that the evidence was insufficient to support a finding of The jury returned a verdict of guilty. The defendant moved to set aside

the phone in her hand, and called the police. realized there was “somebody in the street,” she stopped, got out of the car with

of her eye, and heard the windshield pop. When she looked in the mirror and

the bridge, did not see anybody walking, saw a “flash of blue” out of the corner

passenger seat when she turned onto the bridge. She stated that she crossed from the bridge” when she called McIntire and that the phone was on the defendant. She testified that she was “probably an eighth to a quarter of a mile

trial court denied the motion. The defense then called its sole witness, the

of her cell phone while she was driving and that such use is not illegal. The that the only blameworthy conduct the jury could attribute to her was the use At the close of the State’s case, the defendant moved to dismiss, arguing

half minutes later. that the defendant placed was to the Franklin police at 9:05:52 – one and oneunusual for the defendant to call her and fail to leave a message. The next call

four seconds later, without leaving a message. McIntire testified that it was

9:04:17 p.m., McIntire’s voice mail picked up the call. The defendant hung up

other people, the defendant called Judy McIntire, who did not answer. At feature to switch back and forth between conversations. Following calls to made and received a number of calls, sometimes using the “call waiting”

Franklin. The records revealed that during the thirty-seven minute trip, she

defendant’s cell phone records for the time that she drove from Sutton to At trial, over the defendant’s objection, the State introduced the

things that you would pay attention to as the driver in a vehicle.”

visibility, and to “take a look down Central Street and pay attention to the to the lighting in the area, to note whether there were any obstacles to accident scene. The prosecutor instructed the jury to pay particular attention

Prior to opening statements, the jury travelled by bus to view the

avoiding the collision, negligently causing Bassett’s death. vehicle to a stop” and, therefore, the defendant failed to exercise due care in

had “a large amount of time and distance to see the pedestrian[s] and bring her may be caused by “a sneeze” or “changing of the radio station,” the defendant evidence that establishes only ordinary negligence.” Littlefield, 152 N.H. at p. 4 “[A] person charged with criminal negligence may not be convicted on

RSA 626:2, II(d) (2007).

situation.

from the conduct that a reasonable person would observe in the that his failure to become aware of it constitutes a gross deviation communications device for the purpose of making a phone call.” Id. Contrary from his conduct. The risk must be of such a nature and degree “read[ing], select[ing], or enter[ing] a phone number or name in a wireless

sense of right and wrong.” Id. (quotation omitted). As we have clarified,

unjustifiable risk that the material element exists or will result conduct. Indeed, that statute specifically excludes from its prohibition

blameworthy conduct when such use results in inattention or distraction.

seriousness would be apparent to anyone who shares the community’s general

offense when he fails to become aware of a substantial and not prohibited and, therefore, cannot constitute the requisite blameworthy while driving, the defendant asserts that talking on a cell phone while driving is Citing RSA 265:105-a (Supp. 2012), which prohibits “text messaging”

including use of a cell phone while driving, may constitute the requisite to the defendant’s argument, however, conduct that is, itself, not prohibited,

serious than that for ordinary civil negligence, and . . . must be such that its State’s case. State v. Littlefield, 152 N.H. 331, 350 (2005) (quotation omitted). [a] person acts negligently with respect to a material element of an

Criminal Code further provides that:

caused it.” Shepard, 158 N.H. at 746 (quotation omitted). ordinary risk, but also some serious blameworthiness in the conduct that “[c]riminal negligence requires not only the failure to perceive a more than the State, could have found guilt beyond a reasonable doubt. Shepard, 158

350. “[T]he carelessness required for criminal negligence is appreciably more takes the chance that evidence presented in her case may assist in proving the

of a class B felony when he causes the death of another negligently.” The set aside the verdict is the sufficiency of the evidence. State v. Shepard, 158

the evidence and all reasonable inferences from it in the light most favorable to

the defendant is not required to present a case, if she chooses to do so, she

The negligent homicide statute, RSA 630:3, I, states: “A person is guilty The issue on appeal as to both the motion to dismiss and the motion to

N.H. at 746.

To prevail, the defendant must prove that no rational trier of fact, viewing all of

N.H. 743, 745 (2009). We review the entire trial record because, even though circumstances.” Com. v. McGrath, 805 N.E. 2d 508, 513 (Mass. App. Ct. 2004)

p. 5 safety that an ordinarily prudent person would exercise under similar

demonstrated that she failed to “exercise that degree of care, diligence and could have inferred that the defendant’s inattention to the road in front of her car struck Bassett. The jury, which had taken a view of the accident scene,

passing directly in front of the defendant before the front passenger side of her

Gonnella crossed the entire westbound lane and most of the eastbound lane, visibility as she drove across the bridge, during which time Bassett and been “very visible at night time.” The defendant had 13.5 seconds of clear swerve, indicating that the defendant had completely failed to see them. This

pedestrian crossing sign. Bassett was wearing white pants that would have time before striking Bassett did the defendant slow down, apply her brakes, or

the street in a well lit, newly painted crosswalk that was marked with a within a crosswalk.” RSA 265:35 (2004). Bassett and Gonnella were crossing her, at most, 1.5 seconds to react upon seeing the women. Nevertheless, at no down or stopping if need be to so yield, to a pedestrian crossing the roadway drove across the bridge, her view was unobstructed, and it would have taken had 13.5 seconds in which to see Bassett and Gonnella in the crosswalk as she Under New Hampshire law, a driver must “yield the right of way, slowing criminal negligence as a matter of law. Id. Here, by contrast, the defendant the defendant’s two-second failure to keep his car in its lane did not constitute oncoming traffic for no more than two seconds.” Id. at 747. We concluded that defendant’s car “inexplicably drifted over the double yellow line and into contrary, we find the facts here readily distinguishable. In Shepard, the The defendant argues that this case is controlled by Shepard. To the

(quotation omitted).

negligence.

Cloutier v. A. & P. Tea Co., Inc., 121 N.H. 915, 924 (1981) (quotation omitted), unjustifiable risk, only that [the defendant’s] use of a cell phone in this case right and wrong.” Shepard, 158 N.H. at 746 (quotation omitted). Here, the should be “apparent to anyone who shares the community’s general sense of a crosswalk, demonstrates a level of carelessness the seriousness of which

ability to maintain a proper lookout for [pedestrians].” Montgomery v. State, unanimously determined that the defendant’s conduct constituted criminal

jury, whose judgment best reflects “the prevalent sense of the community,” is always risky or dangerous, or that it, of itself, creates a substantial and Indeed, “the state had no burden to show that driving while using a cell phone

use or any other “legal” activity, resulting in the failure to avoid a pedestrian in blameworthy. Rather, the issue is whether inattention caused by cell phone The issue here is not whether cell phone use while driving is per se

369 S.W.3d 188, 194 (Tex. Crim. App. 2012).

created a substantial and unjustifiable risk because it interfered with her p. 6 “inextricably intertwined” with evidence of the crime charged. State v.

were “necessary preliminaries” to the crime charged.

acts” subject to Rule 404(b) but, rather, constitute evidence of conduct that is we conclude that they do not constitute evidence of “other crimes, wrongs or Although the defendant sought to exclude the records under Rule 404(b), both acts are part of a “single criminal episode” or the other acts

the evidence of the crime charged are “inextricably intertwined” or act” evidence is “intrinsic” when the evidence of the other act and evidence in question is “intrinsic” or “extrinsic” evidence. “Other

noted that it had “some significant concerns . . . as to the timeliness of this

the point of impact.

“similar acts” or “other acts” evidence depends upon whether the

until the second day of trial to raise the issue for the first time. The trial court

404(b). We note at the outset that the defendant never filed a motion in limine 404(b) as circumstantial evidence of the defendant’s state of mind leading up to ultimately concluded that the cell phone records were admissible under Rule driver was not devoting [her] full time and attention to [her] driving, i.e., that in the middle of trial,” the trial court nonetheless considered the motion, and The proper test to apply in deciding the admissibility of

Nightingale, 160 N.H. 569, 574 (2010) (quotation omitted).

referenced the records in its opening statement. Rather, the defendant waited

impermissible character evidence under New Hampshire Rule of Evidence

matter of law, it is at least some evidence from which a jury could infer that the opening). Although stating that it did not “appreciate issues like this that arise “[A]lthough talking on a [cell] phone would not establish negligence as a to prosecutor’s opening statement should be made immediately after State’s observe in the situation.” RSA 626:2, II(d).

favorable to the State, could have found guilt beyond a reasonable doubt. See viewing the evidence and all reasonable inferences from it in the light most seeking to exclude the phone records. Nor did she object when the State

that such records were irrelevant, more prejudicial than probative, and used as phone calls during the thirty-seven minutes prior to the collision. She asserts motion in limine to exclude “prior phone records” – that is, records of her cell The defendant next argues that the trial court erred in denying her

Shepard, 158 N.H. at 746. was “a gross deviation from the conduct that a reasonable person would evidence was sufficient to support a conclusion that the defendant’s inattention

Under all the circumstances of this case, we conclude that a reasonable jury, United States, 822 A.2d 407, 419 (D.C. 2003) (quotation and brackets omitted). she was not exercising reasonable care under the circumstances.” Butts v. affirm if valid alternative grounds support the decision.” Id. at 575-76

p. 7 “[W]here the trial court reaches the correct result on mistaken grounds, we will

admissibility was Rule 403, we nevertheless uphold the court’s determination. defendant’s cell phone records were admissible. Although the proper test for We note that the trial court applied Rule 404(b) in concluding that the

substantially outweigh their probative value.

implicated. See Williams, 900 F.2d at 825. Rather, the applicable test for

unfair prejudice resulting from the admission of the cell phone records did not consideration was not improper. Under the circumstances, any danger of the extent the jury considered the phone records in its determination, such

the conduct charged in the indictment and, consequently, Rule 404(b) is not

defendant’s attentiveness in the minutes leading up to the collision. Thus, to

DALIANIS, C.J., and HICKS, LYNN and BASSETT, JJ., concurred. Bassett’s death. Thus, the cell phone records were evidence of acts intrinsic to walking in the road ahead,” and that such failure resulted in the collision and Franklin that she “failed to pay due attention and failed to avoid Genny Bassett issues, or misleading the jury, or by considerations of undue delay, waste of Rule 403 analysis is part of analysis under Rule 404(b)). is substantially outweighed by the danger of unfair prejudice, confusion of the (quotation omitted); cf. State v. Trainor, 130 N.H. 371, 375 (1988) (noting that Under Rule 403, relevant evidence “may be excluded if its probative value her trip.” Further, the records of the calls bore directly on the issue of the that the defendant admitted to him that she “had made phone calls throughout drivers [who] talk on the cell phone.” We disagree. Sergeant Carlson testified

is emotionally charged. Id. Here, the defendant contends that the records of a decision against the defendant on some improper basis, commonly one that

defendant was so distracted by her cell phone use on the drive from Sutton to

cause the jury to base its decision on its anger and frustration of present day her cell phone use were introduced “to outrage the jury, confuse the issues and

prejudice required to establish reversible error is an undue tendency to induce

“other crimes, wrongs, or acts”). The State’s contention at trial was that the

N.H. at 574. United States v. Williams, 900 F.2d 823, 825 (5th Cir. 1990); see State v. admissibility of the cell phone records is found in Rule 403. Nightingale, 160

instances of defendant’s conduct in days prior to shooting were not evidence of Farrell, 145 N.H. 733, 741-42 (2001) (reversing trial court ruling that specific