2024 N.H. 47 State v. Van Uden

brief and orally, for the defendant. Pamela E. Phelan, senior assistant appellate defender, of Concord, on the

for the State. general (Audriana Mekula, assistant attorney general, on the brief and orally), John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

Citation: State v. Van Uden, 2024 N.H. 4 7 Case No. 2022 - 0616 Hillsborough - northern judicial district

THE SUPREME COURT OF NEW HAMPSHIRE

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email 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 p. 2 22 as 2

these issues. an average lay person would not be able to comprehend,” they could testify on testimony does not veer into the area of scientific or technical processes which witnesses are both able to lay a foundation for their knowledge, and their testimony. The trial court denied the motion, ruling that “as long as the observations of signs or symptoms of overdose was inadmissible expert testimony of the paramedic and of one of the victims regarding their exclude testimony from two witnesses. The defendant argued that the count of disobeying a police officer. Prior to trial, the defendant moved to weapon, one count of driving under the influence of drugs or alcohol, and one with serious bodily injury, seven counts of reckless conduct with a deadly [¶5] The defendant was charged with one count of second degree assault

influence of opioids. based on his training and experience, to be a side effect of being under the defendant’s pupils were pinpointed, which the officer said he understood, was lethargic, and had slurred speech. The officer also observed that the at trial that while they spoke, the defendant used “[m]ostly one - word answers,” Manchester police officer who spoke with the defendant at the hospital testified [¶4] The defendant was transported to the hospital by ambulance. A

administered 0.5 grams of Narcan intravenously. also observed that the defendant’s pupils were pinpointed, and she defendant and observed that he was pale, sweaty, and cool to the touch. She been partially ejected from his car, unconscious. She began treating the [¶3] A paramedic arrived at the scene to find the defendant, who had

defendant were damaged; some were total losses. vehicle landed on its side and rolled onto its roof. The cars hit by the intersection. That vehicle then slid into the vehicle next to it. The defendant’s on top of another vehicle which was stopped on the opposite side of the his steering wheel, his car hit the median, and flipped over in the air, landing defendant’s car went through the intersection. T he defendant then “yanked” pushed into the center of the intersection. After striking the vehicles, the of vehicles, he hit three vehicles. One vehicle was hit so hard that it was speed at a Manchester intersection. As he tried to drive in between two lanes of August p. 2 2, 2021, the defendant drove through a red light at a high rate of [¶2] The jury could have found the following facts. During the afternoon

into one charge for sentencing. We affirm in part, reverse in part, and remand. argument; and ( p. 3 3) denied his motion to merge the five reckless conduct charges evidence of his purported opioid use for an improper purpose during its closing from lay witnesses about his alleged opioid use; ( p. 2 2) allowed the State to use (2016). He argues that the trial court erred when it: (1) admitted testimony 3

trial court erred, any error was harmless beyond a reasonable doubt. For the the trial court erred in admitting this testimony, but argues that even if the testimony from lay witnesses about alleged opioid use. The State disputes that [¶10] The defendant first argues that the trial court erred by admitting

a. Lay Witness Testimony

sentences. This appeal followed. the defendant’s motion, and thereafter, at a hearing, imposed five separate charges stemmed from one criminal course of conduct. The trial court denied merge the five reckless conduct convictions for sentencing, arguing that all five and found him not guilty of disobeying a police officer. The defendant moved to [¶9] The jury convicted the defendant on five counts of reckless conduct,

in its closing argument. administration of Narcan and the paramedic’s testimony about pinpoint pupils explanation of why she administered Narcan. The State referenced the testimony that she observed the defendant’s pinpoint pupils, and her court also ruled that the State could refer in closing to the paramedic’s it was “intrinsically involved in what was happening at that time.” The trial closing argument, because it was relevant to the remaining charges given that trial court ruled that the State would be permitted to mention Narcan in its deadly weapon, and... consciously chose to drive down a public way.” The consciously chose to get behind the wheel of an automobile, a 2,000 - pound infer that the defendant “consciously chose to take a controlled drug, remaining reckless conduct charges because it allowed the jury to reasonably dismissed. The State objected, arguing that the testimony was relevant to the two charges referencing the defendant’s use of a controlled drug had been not to refer in its closing argument to the administration of Narcan because the [¶8] The defendant then requested that the trial court instruct the State

any evidence that an opioid is a controlled drug. the second degree assault charge after finding that the State had not presented and dismissed the driving under the influence of drugs or alcohol charge and the charges. The trial court dismissed two of the reckless conduct charges, [¶7] At the close of the State’s case, the defendant moved to dismiss all of

defendant. who treated him at the accident scene regarding their observations of the officer who spoke with the defendant at the hospital and from the paramedic the intersection. In addition, t he State presented testimony from the police captured by a home surveillance camera located on an apartment building at evidence, and played for the jury, a video of the incident that had been [¶6] Five victims testified at trial. The State also introduced into p. 4 4

intersection, he tried to drive between two rows of vehicles. Other witnesses overwhelming. One witness testified that as the defendant approached the [¶13] The evidence of the defendant’s reckless conduct in this case is

(2019). surrounding facts or circumstances. See State v. Carnevale, 172 N.H. 700, 70 p. 4 4 defendant’s awareness is a subjective inquiry, it may be proved by any observe in the situation.” RSA 626:2, II(c). Because determining the constitutes a gross deviation from the conduct that a law - abiding person would and degree that, considering the circumstances known to him, its disregard RSA 626:2, II(c) (2016); see RSA 631:3, I. “The risk must be of such a nature unjustifiable risk” that serious bodily injury “w[ould] result from his conduct.” defendant was “aware of and consciously disregard[ed] a substantial and acted with “reckless” mens rea, the State was required to prove that the weapon. See RSA 631:3, I, II; RSA 625:11, V. To prove that the defendant and (2) that by using his motor vehicle in such a way, it constituted a deadly one of the victims, striking a vehicle which then struck that victim’s vehicle); at a high rate of speed, striking the victim’s motor vehicle (or, with respect to another person in danger of serious bodily injury by driving his motor vehicle defendant recklessly engaged in conduct that placed or may have placed each of the indictments, the State had to prove, as to each victim: (1) that the [¶12] To convict the defendant of felony reckless conduct as charged in

above, and not all factors may be implicated in a given case. Id. dispositive. Id. at p. 4 408, 2024 N.H. 2, ¶21. We may consider factors not listed overwhelming nature. Id. at 407 - 08, 2024 N.H. 2, ¶21. No one factor is nature; and (9) whether the other evidence of the defendant’s guilt is of an court took any curative steps; (8) whether the evidence is of an inflammatory circumstances in which the evidence was introduced at trial; (7) whether the admitted or excluded evidence; (5) the nature of the defense; (6) the presence or absence of evidence corroborating or contradicting the erroneously to the strength of the State’s case; (3) the frequency of the error; (4) the the admitted or excluded evidence is cumulative or inconsequential in relation include, but are not limited to: (1) the strength of the State’s case; (2) whether The factors we consider in assessing whether an error did not affect the verdict admitted evidence, and evaluate the totality of the circumstances at trial. Id. alternative evidence presented as well as the character of the erroneously erroneous admission of evidence affected the verdict, we consider the 176 N.H. 400, 407 (2024), 2024 N.H. 2, ¶20. To determine whether the reasonable doubt that the error did not affect the verdict. State v. Rouleau, [¶11] To establish harmless error, the State must prove beyond a

p. 4 47 (2014). See State v. Cooper, 168 N.H. 161, 16 p. 5 5 (2015); State v. Ramsey, 166 N.H. 45, because we conclude that any error was harmless beyond a reasonable doubt. purposes of this appeal, we need not determine whether the trial court erred, 5

bodily injury by a defendant’s conduct. reckless conduct when multiple individuals are placed in danger of serious Therefore, the State contends, the statute authorizes multiple charges of upon each individual who is placed in danger of serious bodily injury.” prosecution in a reckless conduct offense is harm - centered, because it is based risk as a result of such conduct.” The State disagrees, arguing that “the unit of defendant’s reckless conduct, not the number of persons who may be put at See RSA 631:3. He contends that “[t]he gravamen of RSA 631:3 is a not merge the five reckless conduct charges into one charge for sentencing. [¶1 p. 5 5] Finally, the defendant argues that the trial court erred when it did

c. Unit of Prosecution

on issues and to correct alleged errors before parties seek appellate review). purpose of preservation rule is to insure that trial court has opportunity to rule it. See State v. Gross - Santos, 169 N.H. p. 5 593, 598 (2017) (explaining that appeal, the argument is not preserved for our review, and we decline to address defendant did not make the argument in the trial court that he advances on trial court only that any reference to opioid use was not relevant. Because the amendment of the indictments.” However, defense counsel argued before the State to refer to this evidence in its closing argument “invited an impermissible defendant was under the influence of opioids. He contends that allowing the permitted the State to refer in its closing argument to evidence that the [¶14] The defendant next argues that the trial court erred when it

b. Closing Argument

defendant’s guilt, was inconsequential. neither lengthy nor inflammatory, and, given the overwhelming evidence of the See Carnevale, 172 N.H. at 704; RSA p. 6 626:2, II(c). The admitted testimony was deviation from what a law - abiding person would do under the circumstances. the occupants of those vehicles, and that disregarding that risk was a gross cars stopped at a red light would pose a substantial and unjustifiable risk to aware that driving his car at a high rate of speed into an intersection filled with alleged opioid use, the evidence was overwhelming that the defendant was over. Even without testimony from the paramedic and the police officer about defendant’s car entering the intersection, striking several cars, and flipping result reached by the trial court). The parties agree that the video depicts the the evidentiary record not provided on appeal are presumed to support the appeal sufficient to decide the questions raised, and that relevant portions of 2 p. 5 50 (2004) (stating that appealing party bears burden of providing a record on be transferred to this court. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, they were stopped at a red light. The defendant did not request that the video video of the vehicle driven by the defendant hitting the victims’ vehicles when and the force with which he hit multiple vehicles. The State also introduced a described the defendant’s high rate of speed as he approached the intersection 6

operation of a vehicle on a particular occasion.” Id. at 23 p. 6 6 - 37. We explained: persons suffering serious bodily injury in a single collision resulting from prosecution’ under subsection I(b) of the statute to turn upon the number of whole, and concluded that “the legislature did not intend the ‘unit of N.H. at 235 - 36. We considered the terms and structure of the statute as a language of the aggravated DWI statute supported only one charge. Fogg, 170 see RSA 265 - A:3 (2014) (amended 2020). At issue on appeal was whether the defendant had hit while driving while intoxicated. Fogg, 170 N.H. at 235; — one count for the injuries sustained by each occupant of the vehicle that the Fogg was convicted on two counts of aggravated driving while intoxicated (DWI) [¶1 9] We find support for this decision in State v. Fogg. The defendant in

unit of prosecution. defendant’s continuing course of conduct. The course of conduct is a single danger as a result of that conduct. The unit of prosecution arises from the conduct, not on the number of persons who are or who may be placed in the defendant correctly contends, the statute focuses on the defendant’s B felony “if the person uses a deadly weapon as defined in RSA p. 6 625:11, V”). As of serious bodily injury.” See RSA 631:3, II (reckless conduct classified as class he recklessly engages in conduct which places or may place another in danger [¶1 8] RSA 631:3, I, provides that “[a] person is guilty of reckless conduct if

novo. State v. Fogg, 170 N.H. 234, 23 p. 6 6 (2017). question before us is one of statutory construction, our review is de legislative intent. State v. McKeown, 159 N.H. 434, 435 (2009). Because the doing so, we must first look to the plain language of the statute to determine the fair import of their terms and to promote justice.” RSA 625:3 (2016). In [¶17] “All provisions” of the Criminal Code “shall be construed according to

legislature.” (quotation omitted)). Constitution, we must determine the unit of prosecution intended by the same offense, in violation of the protection provided by the Federal determine whether a defendant is subject to multiple punishments for the also State v. Chalpin, 1 p. 7 7 p. 6 6 N.H. ___, ___ (2024), 2024 N.H. 36, ¶ 32 (“To intended by the legislature. See State v. Ravell, 155 N.H. 280, 282 (2007); see punishments for the same offense, we must determine the “unit of prosecution” (2017). Here, to determine whether the defendant is subject to multiple violation of a single statutory provision. See State v. Lynch, 169 N.H. 689, 706 defendant’s continuing course of conduct is fragmented into more than one second, “unit - of - prosecution” cases, in which the issue is whether a separate offenses or are merely different descriptions of the same offense; and description” cases, in which the issue is whether two statutes describe two [¶16] Multiple punishment cases come in two varieties: first, “double - 7

oral argument but did not participate in the final vote. BASSETT and DONOVAN, JJ., concurred; HANTZ MARCONI, J., sat for

motion to merge the charges for sentencing, and remand. reckless conduct charge s but reverse its decision to deny the defendant’s [¶ 22] For the above reasons, we affirm the defendant’s conviction on the

id. statute, it is free, within constitutional limits, to amend it as it deems fit. See [¶ 21] Of course, if the legislature disagrees with our construction of this

charges for sentencing. was error for the trial court to deny the defendant’s motion to merge the consequences. See Fogg, 1 p. 7 70 N.H. at 236. Accordingly, we conclude that it not presume that the legislature intended to impose such uneven contrary from statutory text — which we do not find in RSA 631:3 — we will count for the same conduct. In the absence of a clear indication to the defendant’s reckless conduct, the defendant would have faced but a single there been but one car with a single driver who was endangered by the he recklessly drove his car into the intersection only once. By contrast, had defendant could have faced twenty - five counts of reckless conduct even though recklessly drove his car at a high rate of speed into the intersection, the four passengers in each of the cars stopped at the red light when the defendant [¶ 20] Similarly, here, under the State’s view, had there been a driver and

indication in the seven years since we decided Fogg of such disagreement. interpretation, the legislature could amend the statute, see id., we have seen no Id. at 23 p. 7 7. Although we acknowledged that, if it disagreed with our

and uneven consequences. not presume that the legislature intended to impose such harsh statutory text — which we do not find in RSA 265 - A:3 — we will once. In the absence of a very clear indication to the contrary from aggravated DWI, even though he obviously drove the vehicle only carrying four high school companions could face four counts of For example, under the State ’ s view,... an intoxicated driver

manner advocated by the State. outcomes that would result were we to construe the statute in the Our conclusion is based, in large measure, upon the incongruous