2012-572, State of New Hampshire v. Chad Belleville

9:15 p. m. on Route 28 near Pittsfield. The section of Route 28 where the of another motorist, which occurred on December 23, 2010, at approximately conviction stems fro m a motor vehicle accident that seriously injured the child The court could have found the following facts. The defendant’s

recklessly. See RSA 631:2 (2007) (amended 2010). We affirm. a rguing that the State presented insufficient evidence to prove that he acted second degree assault following a bench trial in Superior Court (O’Neill, J.), CONBOY, J. The defendant, Chad Belleville, appeals his conviction for

brief and orally, for the defendant. David M. Rothstein, deputy chief appellate defender, of Concord, on the

attorney general, on the brief and orally), for the State. Michael A. Delaney, attorney general (Diana E. Fenton, assistant

No. 2012 - 572 Merrimack

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. Opinions are available on the Internet by 9:00 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, Concor d, 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 p. 2 22 as 2

as ked the defendant about the history of calls that had occurred prior to the were shown as having been made before the accident. Shapiro testified that he defendant showed Shapir o his call history and Shapiro noticed that n o calls cellular tele phone to ascertain what time that call had been made. The to tell her what had happened. Shapiro asked to look at the defendant’s defendant told Shapiro that he had telephoned his girlfriend after the collision telephone calls “either just prior to the collision or just after the collision.” The arrived at the scene, he asked the defendant whether he had made any When Sergeant Matthew Shapiro of the New Hampshire State Police

fracture of his jawbone. a traumatic brain injury, los s of “his left eye socket,” and dislocation and him lying “in a cradled position.” As a result of the accident, her son sustained husband were not seriously injured, and then looked for her son. S he located vehicle. She climbed out of the vehicle, made sure that her dau ghters and her of the Subaru on the driver’s side and noticed that her son was no longer in the Immediately after the collision, Flanders “saw a gaping hole” i n the back

the road. the road. T he SUV “traveled across a small field” and came to rest alongside passenger side of the Subaru and both vehicles came to a stop on the side of within a couple of seconds, t he SUV hit his vehicle. Welch skidded into the into a lot of pieces.” He then saw “headlights coming straight at [him]” and Welch saw the Subaru “fishtail[] really suddenly” and saw its back end “explode avoid being hit, but the oncoming vehicle hit the driver’s side of their car. and yelled to her husband to “w atch out.” Her husband tried to swerve to Prior to the collision, Flanders saw headlights from an oncoming vehicle

that the SUV hit the Flanders es ’ Subaru. swerve his vehicle to avoid being hit. Pickering then saw in his rearview mirror came within inches of Pickering’s driver’s side mirror and Pickering had t o trave ling in the opposite direction, drifting into the median lane. T he SUV Just before the accident, Pickering observed the defendant’s SUV,

Evan Welch. It was dark and the weather was dry, clear, and cold. were in the back seat. B ehind the Flanderses’ vehicle was a Honda driven by husband, who was driving, and their son (the victim) and two daughters, who Tressa Flanders (Flanders), who was in the front passenger seat, Flanders’ opposite direction, in the northbound lane, followed by a Subaru occupied by Explorer, a sport utility vehicle (SUV). Corey Pickering was driving in the southbound travel lane. T he defendant was driving southbound in a Ford off from the travel lanes by two sets of solid double yellow lines; and ( p. 3 3) a a median turning lane measuring approximately the width of two lanes and set accident occurred contains three travel lanes: (1) a northbound travel l ane; ( p. 2 2) 3

motion and found him guilty of both charges. This appeal followed. conduct was either criminally negligent or reckless. The court denied the charges on the ground that the evidence was insufficient to prove that h is At the close of all of the evidence, the defendant moved to dismiss the

the time of the accident, he was checking a text message. p.m.; thus, the records were consistent with the defendant’s admission that, at records showed no calling or messaging activity between 9:05 p.m. a nd 9:18 the defendant made and received ca ll s between 8:5 p. 3 3 p.m. and 9:05 p.m. The two text message s between 8:51 p.m. and 9:04 p.m. The y also established that p.m. to 9:25 p.m. The records disclosed that the defendant received at least introduced the records of the defendant’s cell ular telephone activity from 8: 50 The accident occurred at approximately 9:15 p.m. At trial, th e State

unconstitutional by State v. Rollins - Ercolino, 149 N.H. p. 3 336, 343 (2003). collision with oncoming vehicles.” S ee RSA 265:79 - a (2004), stricken in part as operating a motor vehicle and crossing “double solid yellow line s, causing a bodily injury to another based upon his failure “to pay due attention” while also charged with one count of vehicular assault for negligently caus ing serious causing a collision with oncoming motor v ehicles.” S ee RSA 631:2. He was of double solid lines through a turning lane and into the northbound lane, recklessly causing serious bodily injury to another by “cross[ing] over two sets The defenda nt was charged with one count of second degree assault for

action to avoid the vehicles prior to the collision. was no evidence that the defendant had either braked or taken any evasive vehicle that were operating within their lane northbound.” He noted that there sets of double yellow lines and struck the Flanders es ’ vehicle and the Welch traveling “southbound on Route 28 in a Ford Explorer when he crossed two McCorma ck opined that the cause of the collision was that the defendant was would have le d to the collision. Furthermore, based upon his investigation, was determined that there was no mechanical problem with the vehicle that analysis and a p ost - collision inspection of the defendant’s Ford Explorer. It McCormack and other law enforcement officers conducted reconstruction

Subaru and that, “I just looked down and the next thing you k now I crashed.” accident, he was checking a text message. He stated that he did not see the During their conversation, the defendant admitted that, at the time of the months later, on August 7, 2011, McCormack again spoke with the defendant. told him that he could not recall what had happened. Approximately eight Hampshire State Police arrived at the scene. He spoke with the defendant, who Shortly thereafter, Sergeant David Scott McCormack of the New

or something.” collision and the defendant told him that he thought he had “erased the history p. 4 4

disregarding the risk a “gross deviation” from law - abiding conduct — involves disregarded the risk, and had kno wledge of circumstances that ma d e aware of the risk of serious bodily injury resulting from his actions, consciously A ssessment of criminal recklessness — that is, w hether a defendant was

unjustifiable risk that serious bodily injury would result from his conduct.”). defendant was aware of but consciously disregarded a substantial, the defendant acted in a reckless manner, the State had to show that the December 2 p. 4 4, 2013); see also State v. Hull, 149 N.H. 706, 713 (2003) (“To prove RSA 626:2, II(c) (2007); see State v. Botelho, 165 N.H. ___, ___ (decided

law - abiding person would observe in the situation. disregard constitutes a gross deviation from the conduct that a and degree that, considering the circumstances known to him, its or will result from his conduct. The risk must be of such a nature substantial and unjustifiable risk that the material element exists offense when he is aware of and consciously disregards a A person acts recklessly with respect to a material element of an

cause[d] serious bodily injury to another.” RS A 631:2, I(a). required to p rove, beyond a reaso nable doubt, that the defendant “recklessly To have convicted the defendant of second degree assault, the State was

not in isolation. Shepard, 158 N.H. at 7 p. 4 46. light most favorable to the State and examine each evidentiary item i n context, (2013). Under this standard, however, we still consider the evidence in the reasonable conclusions except guilt. State v. Germain, 165 N.H. 3 50, 360 the elements of the charged off ense is solely circumstantial, it must exclude all (2009) (quotation and ellipsis omitted). When the evidence as to one or more of cases [,] be proven by circumstantial evidence.” State v. Tayag, 159 N.H. 21, 24 of their mind s or mental processes, a culpable mental state must, in most 743, 746 (2009). “Because persons rarely explain to others the inner workings could have found gu ilt beyond a reasonable doubt. State v. Shepard, 158 N.H. and all reasonable inferences from it in the light most favorab le to the State, defendant must prove that no rational trier of fact, viewing all of the evidence To prevail upon his challenge to the sufficiency of the evidence, the

acted recklessly. analysis to whether the evidence was sufficient to prove that the defendant conceded that his conduct was criminally negligent. We, therefore, limit our court erred in finding him guilty of acting negligently, at oral argument, he acted recklessly. Although, in his brie f, the defendant also argues that the trial second degree assault because the evidence was insufficient to prove that he The defendant argues that the trial court erred in finding him guilty of p. 5 5

defendant drove across the median, which was approximately the width of two looking down at a text message, rather than paying attention to the road, th e and stated, “the next thing you know I crashed.” During the time he spent looked down to check a text message on his cellular telephone while driving establish that the defendant acted recklessly. T he defendant admitted that he c annot say that no r ational trier of fact could have found it sufficient to V iewing all of the evidence in the light most favorable to the State, we

erased his telephone ’s call history. See Hull, 149 N.H. at 713. he was reading a text message at the time of the accident, and soon thereafter defendant’s conduct before and af ter the accident, including his admission that be inferred.” Hull, 149 N.H. at 713. Here, t he court could have considered the of the “surrounding facts and circumstances from which such awareness may Id.; Evans, 134 N.H. at 38 p. 5 5. Such an assessment may include an examination upon whether the defendant anticipated the precise risk or injury that resul ted. harm resulting from his conduct. Hull, 149 N.H. at 713. Nor does it depend Whether a defendant acted recklessly does not depend upon the actual

crime exists or will result fro m his conduct. I d. at 3 p. 5 50 - 51. fails to become aware of a substantial risk that an essential element of the crime exists or will result from his conduct, whereas one is negligent when he of and cons ciously disregards a substantial risk that a material element of the between recklessness and negligence is that a person is reckless if he is aware person. State v. Cameron, 121 N.H. 348, 351 (1981). However, the difference conduct must constitute a gross deviation from the conduct of a reasonable (quotation omitted)). Under our Criminal Code, both reckless an d negligent but also some serious blameworthiness in the conduct that caused it.” negligence requires not only the failure to perceive a more than ordinary risk, conduct.” RSA 626:2, II(d); see also Shepard, 158 N.H. at 746 (“Criminal unjustifiable risk that the material element exists or will result from his element of an offense when he fails to become aware of a substantial and On the other hand, “[a] person acts negligently with respect to a material

our interpretation of analogous New Hampshire statutes). Model Penal Code and explaining that its commentaries are instructive upon 183 (2003) (recognizing that our Criminal Code is largely derived from the Model Penal Code § 2.02 cmt. 3, at 237; see State v. Donohue, 1 p. 5 50 N.H. 180, conduct that a law - abiding person in the actor’s situation would observe.” given the act o r’s perceptions, involved a gross deviation from the standard of substantiality and unju stifiability of the risk by asking whether its disregard, explains, when assessing recklessness, the fact - finder should “measure the As the comment to the Model Penal Code section defining recklessness Penal Code § 2.02 cmt. 3, at 2 37 (Official Draft and Revised Comments 1985). State v. Evans, 134 N.H. 378, 385 (1991); see also Hull, 149 N.H. at 713; Model comparing the defendant’s conduct with that of a law - abiding person. See p. 6 6

yello w line before hitting motorcyclists was insufficient to impose criminal 158 N.H. at 747 (holding that defendant’s conduct of straying briefly over the double yellow line” into oncoming traffic on a two - lane highway. See Shepard, Shepard, who briefly and “inexplicably drift ed” out of his lane and “over the defendant ’s conduct was not similar to the conduct of the defendant in sufficient to support convi ction for negligent homicide). Moreover, here, the defendant’s inattention caused by her use of a cell ular phone while driving was criminal. See State v. Dion, 1 p. 6 64 N.H. 544, 549 - 50, 552 (2013) (concluding that similar argument that such cond uct is not sufficiently blameworthy to be Analyzing distracted driving in a criminal negligence case, we rejected a

circumstances needed to substantiate” his conviction. reckless . . . operation,” but “this case lacks additional aggravating “the use of a cell phone may be a factor in assessing c riminal liability for recklessness based on inattention plus aggravating factors.” He maintains that would be inconsistent with cases from other jurisdictions “that have found T he defendant suggests that a finding that his conduct was reckless

find defendant’s actions were “anything but innocent”). deny conduct that led to conviction for second degree assault could lead jury to accident. Cf. Evans, 134 N.H. at 387 (stating that defendant’s attempts to attention from the road and to his telephone while driving risked causing an history on his tele phone as demonstrative of his awareness that diverting his could have considered the defendant’s subsequent conduct of erasing the call to disregard that risk. Fin ally, although not dispositive, a ration al t rier of fact check a text message while driving could cause an accident, and that he chose have conclude d that the defendant was aware of the risk t hat looking down to recklessness for second degree assault). Likewise, a rational trier of fact co uld fog line, and caused bicyclist serious bodily injury adequately state d element of indictment stating defendant drove car near fog line, hit bicyclist riding near such a distance. Cf. State v. Pelky, 131 N.H. 715, 719 (1989) (finding that voluntarily remained inattentive for such an appreciable length of time over conduct of a law - abiding citizen, because a law - abiding citizen would not have without braking or attempting to evad e collision, w as a gross deviation from the enter into the oncoming travel lane, nearly hit one vehicle, and hit two others, check a text message for the length of time it took to cross over the median, Mo reover, a rational trier of fact could have found that looking down to

other driver). stop created a substantial, unjustifiab le risk of injury to either polic e office r or N.H. at p. 7 714 (finding that driving too close to a police officer engaged in a traffic situation was “substantial and unjustifiable.” RSA p. 6 626:2, II(c); cf. Hull, 149 conclude d that the risk that another driver would suffer serious injury in this and enter ed into the opposite lane of traffic. A rational trier of fact could have lanes and set off from the travel lanes by two sets of solid double yellow lines, 7

DAL I ANIS, C.J.