2025 N.H. 15, State v. Cummings

defendant. Matthew McNicoll, assistant appellate defender, of Concord, orally, for the Rothstein Law LLC, of Exeter (David M. Rothstein on the brief), and

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

Citation: State v. Cummings, 2025 N.H. 15 Case No. 2023 - 0166 Hillsborough - north ern 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, 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

defendant does not challenge these verdicts on appeal. The jury also returned guilty verdicts of reckless conduct and child endangerment. The 1

on her” and a “brown substance in her ears.” The paramedics took K.C. to the limp, lifeless, and very pale with bluish lips. He also noted that K.C. had “bugs responding police officer, perform ed CPR. A paramedic observ ed that K.C. was screamed that K.C. was not breathing. K.C.’s grandmother, and later a first - [¶4] In the middle of the night on February 14, p. 2 2019, K.C.’s mother

“shut up.” express ed his concern about K.C.’s condition, the defendant t old his brother to brothers observed her breath ing rapidly for a few hours. When the brother screaming” for weeks. Shortly before K.C. ’s death, one of the defendant’s vomit. Another family member described K.C. coughing “[l]ike a mountain lion also had a serious lice infestation and a stomach virus that caused her to defendant’s family members observed that she seemed “a little sluggish.” She [¶3] Once K.C. began residing in the primary house, one of the

infested with flies, and a caged chinchilla was also kept in the room. place and the defendant did not know how to clean it. The bedroom was a dirty baby bouncer in the bedroom because she had vomited in her play eight people and numerous pets lived, “was in a state of squalor.” K.C. slept in heat, rendering it uninhabitable in the winter. The primary house, in which moved into a bedroom in the primary house because the mobile home had no grand parents. However, in early p. 2 2019, the defendant, K.C., and K.C.’s mother K.C. from living in the primary house on the property owned by the defendant’s Ne w Hampshire Division for Children, Youth and Families (DCYF) prohibited in a mobile home on property owned by the defendant’s grand parents. The with his partner and their daughter, K.C., who was born with just one kidney, [¶2] The jury could have found the following facts. The defendant lived

affirm. defendant of negligent homicide beyond a reasonable doubt. Accordingly, we to dismiss because the State introduced sufficient evidence to convict the the court’s answer, and the trial court properly denied the defendant’s motion counsel did not render ineffective as sistance of counsel by failing to object to trial court did not commit plain error in responding to the jury ’s question, trial dismiss based upon the insufficiency of the evidence. We conclude that the assistance of coun sel; and ( p. 3 3) the trial court erred by denying his motion to counsel’s failure to object to the court’s response constituted ineffective that urosepsis was the sole cause of K.C.’s death; ( p. 2 2) alternatively, his trial informing the jury that it could convict him of negligent homicide by finding appeal, t he defendant argues that: (1) the trial court committed plain err or by death of his 1 7 - month - old daughter, K.C. See RSA 630:3, I (2016). On 1 3

and/or electrolyte imbalance, all three, or any of the three?” The court court asking: “Does the cause of death have to be urosepsis, dehydration, [¶8] During its deliberations, the jury submitted a question to the trial

an extrinsic factor but not causative or contributory” to death. (SUDC). Dr. Andrew also stated that he would have listed a UTI with E. coli “as have listed K.C.’s cause of death as sudden unexplained death in childhood sepsis. Instead, he opined that had he conducted K.C.’s autopsy, he would that he and Dr. James reviewed were sufficient to conclude that K.C. had contain bacteria. Dr. Andrew also disagreed that a UTI and the tissue slides disagreed with the diagnosis of probable urosepsis because K.C.’s blood did not the State’s expert regarding K.C.’s cause of death. More specifically, he forensic medicine and forensic pathology. He disagreed with the conclusion of Andrew, a former New Hampshire Chief Medical Examiner and an expert in [¶7] The defense ’s case consisted solely of testimony from Dr. Thomas

denied the motion seeking to dismiss the second count. dismissed the count that alleged that urosepsis w as the sole cause of death but to support a conviction on either charge beyond a reasonable doubt. The court homicide indictment s, arguing that the State introduced insufficient evidence [¶6] After the State rested, the defendant moved to dismiss both negligent

dehydration and iron deficiency anemia, caused her death. James opined that K.C.’s UTI and probable uro sepsis, together with only be made in living people based on very specific criteria. Ultimately, Dr. had probable urosepsis, explaining that a conclusive sepsis diagnosis could spread from K.C.’s urinary tract to other organs. Dr. James t estified that K.C. hygiene, such as sitting in a dirty diaper. She also testified that K.C.’s UTI According to Dr. James, K.C.’s UTI could have been caused by improper for E. coli, demonstrating that she had a urinary tract infection (UTI). and consistent with dehydration. K.C. ’s dark brown urine also tested positive electrolytes, such as her sodium, chloride, and urea nitrogen, were all elevated “feeling run - down, lethargic, tired, [and] drained.” She also testified that K.C.’s “copious” number of lice caused iron deficiency anemia, which result e d in K.C. and clinical pathology, who conducted K.C.’s autopsy. She explained how the Hampshire Associate Medical Examiner and an expert in forensic, anatomical, and a paramedic. It also presented Dr. Christine James, a former New multiple witnesses, including the defendant’s family members, police officers, electrolyte imbalance” caused her death. During trial, the State presented second count alleged that a combination of “urosepsis, dehydration, and/or homicide count alleged that urosepsis was the cause of K.C.’s death. The indicted the defendant on two counts of negligent homicide. The first negligent [¶5] As relevant to this appeal, a Hillsborough C ounty Grand Jury

was 17 months old. emergency room at a nearby hospital, where she was pronounced dead. She p. 4 4

electrolyte imbalance. K.C. “had elevated sodium, elevated chloride, and caused her to become dehydrated, as evidenced by her dark brown urine and living people based on very specific criteria. According to Dr. James, K.C.’s UTI sepsis,” explaining that a conclusive sepsis diagnosis could only be made in through her body. As a result, Dr. James opined that K.C. developed “probable contracted a UTI that went unrecognized and untreated, ultimately spread ing leaving her feeling “run - down, lethargic, tired, [and] drained.” Then, she imbalance caused K.C.’s death. K.C.’s lice infestation resulted in anemia, deficiency anemia, probable urosepsis, dehydration, and an electrolyte unpersuaded. At trial, Dr. James testified that the combination of iron multiple medical conditions collectively contributed t o K.C.’s death, we are urosepsis as the sole cause of death.” In light of the significant evidence that the answer permitted a “very real prospect” that “at least one juror relied on [¶12] The defendant contends that the answer was prejudicial because

same verdict in the absence of the error.” Id. prong when we cannot confidently state that the jury would have returned the outcome of the proceeding. Id. at 70. “We will find prejudice under the third defendant must show that the error was prejudicial, i.e., that it affected the test. Generally, to prove that an error affected substantial rights, the plain, we conclude that any such error fails to satisfy the third factor of the [¶11] Here, even if we assum e that the trial court erred, and its error was

burden of demonstrating plain error. State v. Mueller, 166 N.H. 65, 70 (201 p. 4 4). reputation of judicial proceedings. Id. at 208 - 09. The defendant bears the fourth criterion: the error must serious ly affect the fairness, integrity, or public may exercise our discretion to correct a forfeited error only if the error meets a State v. Leroux, 175 N.H. 204, 208 (2022). If all three conditions are met, we (2) the error must be plain; and (3) the error must affect substantial rights. v. Rawnsley, 167 N.H. 8, 11 (2014). To find plain error: (1) there must be error; circumstances in which a miscarriage of justice would otherwise result.” State [¶10] The plain error rule is “used sparingly” and is “limited to those

raises this argument as plain error. the defendant’s trial counsel did not object to the court’s answer, the defendant defendant, that answer “revived the previously dismissed indictment.” Because to rely upon urosepsis as the sole cause of K.C.’s death. According to the jury question constitutes reversible error because the response allowed the jury [¶9] On appeal, the defendant argues that the trial court ’s answer to the

defendant, and this appeal followed. dehydration, and electrolyte imbalance].” The jury then convicted the find that the cause of death was “any one or any combination of [urosepsis, consulted with the parties and by agreement informed the jury that it could p. 5 5

opin ed that the various medical conditions combined to cause K.C.’s death. In testimony, she specified that no factor alone caused K.C.’s death. Rather, she same verdict in the absence of counsel’s failure to object. During Dr. James’s medical conditions, we are confident that the jury would have returned the light of the significant evidence concerning the severity of K.C.’s multiple persuaded that any failure to object prejudiced the outcome of the case. I n fell below an objective standard of reasonableness, because we are not [¶1 p. 5 5] Here, we need not decide whether trial counsel’s failure to object

result of the proceeding would have been different. Id. at 213. a reasonable probability that, but for counsel’s unprofessional errors, the (2014). To satisfy the second prong, the defendant must establish that there is objective standard of reasonableness. State v. Collins, 166 N.H. 210, 212 prong, the defendant must show that counsel’s representation fell below an the outcome of the case.” Id. at p. 5 528 (quotation omitted). To satisfy the first deficient and, second, that counsel’s deficient performance actually prejudiced defendant must show, “first, that counsel’s representation was constitutionally amends. VI, XIV. To prevail upon a claim of ineffective assistance of counsel, a criminal defendant reasonably effective assistance of counsel. U.S. CONST. Fourteenth Amendments to the United States Constitution guarantee a under the Federal Constitution and not the State Constit ut ion. The Sixth and [¶14] The defendant raises his ineffective assistance of counsel claim

ineffective assistance of counsel argument as reviewable on direct appeal. defendant argues that this case presents this very scenario, we will treat his include the “failure to object to an instruction.” I d. at p. 5 526 - 27. Because the Thompson, 161 N.H. 507, 527 (2011) (quotation omitted). Such cases may basis of the claim appears indisputably on the trial record.” State v. we permit direct appellate review in the “extraordinary case” where “the factual “we maintain a strong preference for collateral review of ineffectiveness claims,” and expanded the grounds on which the jury could convict [him].” Although or requesting a specific instruction, his trial counsel “revived the allegation, specifically, he contends that by not objecting to the court’s proposed answer to the court’s answer constituted ineffective assistance of counsel. More [¶13] Next, the defendant asserts that his trial counsel’s failure to object

court’s response to the jury question did not prejudice the defendant’s case. same verdict. Accordingly, we conclude that any error associated with the trial we conclude that even if the trial court erred, the jury would have returned the the evidence that all of K.C.’s medical cond itions combined to cause her death, combination of urosepsis, dehydration, and an electrolyte imbalance.” Given argument, the State reiterated the point that K.C.’s death resulted from “some found that urosepsis alone caused K.C.’s death. At the beginning of its closing had probable urosepsis, further demonstrating the improbability that a juror renal failure.” Moreover, Dr. Andrew disagreed with the conclusion that K.C. elevated urea nitrogen, which were consistent with dehydration and possible p. 6 6

her. Good hygiene and avoiding infection w ere particularly important for K.C. the severity of K.C.’s health risks and failed to seek appropriate treatment for [¶19] The evidence demonstrated that the defendant failed to appreciate

Id. (quotation omitted). death, but also some serious blameworthiness in the conduct that caused it.” “[c]riminally negligent homicide requires not only a failure to perceive a risk of right and wrong.” Littlefield, 152 N.H. at 351 (quotation omitted). As a result, would be apparent to anyone who shares the community’s general sense of objective test, the defendant’s “carelessness must be such that its seriousness RSA p. 6 626:2, II(d) (2016). Because the issue of criminal negligence is an

situation. from the conduct that a reasonable person would observe in the that his failure to become aware of it constitutes a gross deviation from his conduct. The risk must be of such a nature and degree unjustifiable risk that the material element exists or will result offense when he fails to become aware of a substantial and A person acts negligently with respect to a material element of an

death. See RSA p. 6 630:3, I. The Criminal Code defines negligence as follows: prove beyond a reasonable doubt that the defendant negligently caused K.C.’s [¶18] To convict the defendant of negligent homicide, the State had to

item in context, not in isolation. Id. evidence in the light most favorable to the State and examine each evidentiary 152 N.H. 331, 350 (2005). Under this standard, however, we still consider the State, could have found guilt beyond a reasonable doubt. State v. Littlefield, evidence and all reasonable inferences from it in the light most favorable to the defendant must demonstrate that no rational trier of fact, viewing all of the [¶17] To prevail on his challenge to the sufficiency of the evidence, the

criminal conduct caused [K.C.’s] death.” He asserts that the State “failed to prove beyond a reasonable doubt that [his] succumbing to death by urosepsis, dehydration, and/or electrolyte imbalance.” alleged that he “allow[ed] for circumstances that resulted in . . . K.C. denied the defendant’s motion to dismiss the negligent homicide charge that [¶1 p. 6 6] Lastly, the defendant argues that the trial court erred when it

verdict would have differed. exists a reasonable probability that, but for the failure to object, the jury’s state because of that infestation.” Therefore, we cannot conclude that there “iron deficiency anemia due to the lice because she was already at a weakened high. So that urosepsis with the dehydration is her cause of death” along with to cause death,” she explained that K.C.’s “sodium level [was] exceptionally response to a question from the State asking how the factors “work[ed] together p. 7 7

BASSETT and COUNTWAY, JJ., concurred.

homicide. Accordingly, we affirm. State presented sufficient evidence that the defen dant committed negligent because the failure did not prejudice the result. Finally, we conclude that the of counsel when he failed to object to the court’s response to the jury’s question conclude that the defendant’s trial counsel did not render ineffective assistance that the court’s response did not affect the outcome of the trial. We also court’s response to the jury’s question was plain error because we conclude [¶21] For the foregoing reasons, we need not decide whether the trial

reasonable doubt. See id. at 350. sufficient evidence to convict the defendant of negligent homicide beyond a light most favorable to the State, we conclude that the State presented daughter. Viewing all the evidence and all reasonable inferences from it in the family members — the defendant did not attempt to seek medical care for his Despite these numerous health concerns — which were apparent to other testified that K.C. coughed “[l] ike a mountain lion screaming” for weeks. breathing to the defendant, the defendant told him to “shut up.” K.C.’s cousin stress of an acute illness. However, when he raised his concern for K.C.’s rapid that K.C. was also breathing quickly, which could have been caused by the K.C. had a stomach virus and vomited. The defendant’s brother also testified contributing to K.C.’s dehydrat ion. Moreover, K.C. ’s grandfather testified that organs and other parts of her body, worsening into probable urosepsis and can cause sluggishness and generally weaken a child. K.C. ’s UTI spread to her testified that K.C. appeared “a little sluggish.” Dr. James explained how lice her death. She had a severe lice infestation, and the defendant’s brother [¶20] K.C. also experienced health problems in the weeks leading up to

substance in her ears and under her neck. K.C., he found that her fingernails were “extremely dirty” with a brown — where s he slept in a dirty baby bouncer. When a first responder examined moved K.C. into his grand parents’ squalid house — despite DCYF’s prohibition because she was bor n with only one kidney. Nonetheless, the defendant