State of New Hampshire v. Thomas Van Uden

II. Whether the trial court erred in allowing the State to reference the defendant’s opioid use during its closing argument.

III. Whether the trial court erred in sentencing the defendant on five reckless conduct convictions.

The defendant was charged with one class B felony second degree assault, seven class B felony reckless conducts with a deadly weapon, one class A misdemeanor disobeying an officer, and one class B misdemeanor driving while under the influence (DWI) of a controlled drug. M 2 1 4; DA 42-50. All of the charges allegedly occurred on or about August 2, 2021. DA 42-50.

Following a two-day trial, the jury convicted the defendant of five reckless conduct charges and acquitted the defendant of the disobeying an officer charge. T 325-29. After the State rested, two of the seven reckless conduct charges, the second degree assault charge, and the DWI charge were dismissed. T 276-86.

The trial court (Messer, J.) subsequently sentenced the defendant to three years to six years stand committed in the state prison on one reckless conduct conviction, a consecutive two years to four years stand committed in the state prison on a second reckless conduct conviction, three years to six years in the state prison all suspended for ten years upon release on a third reckless conduct conviction, and two concurrent two years to four years in the state prison all suspended for ten years upon release on the remaining convictions. DA 51-65. This appeal followed.

At trial, the defendant was charged with seven class B felony reckless conduct with deadly weapons. SA 3-9. Four of these indictments alleged that the defendant “recklessly engaged in conduct which may have placed [the victim] in danger of serious bodily injury when he operated a motor vehicle, a deadly weapon in the manner it was used, and drove the motor vehicle at high speed towards an intersection where [the victim’s] vehicle was stopped in traffic at a red light, and struck [the victim’s] vehicle.” SA 3, 5, 7, 9. The four victims named in these individual indictments were B.J., N.S., P.R., and J.W. Id.

The fifth indictment alleged that the defendant “recklessly engaged in conduct which may have placed T.W. in danger of serious bodily injury when he operated a motor vehicle, a deadly weapon in the manner it was used, and drove the motor vehicle through an intersection at high speed, where vehicles were stopped at a red light, hit a street sign, struck the median, flipped the car, and struck a motor vehicle operated by D.P., and caused D.P.’s vehicle to strike the vehicle operated by T.W.” SA 8. The sixth indictment alleged that the defendant “recklessly engaged in conduct which may have placed D.P. in danger of serious bodily injury when he operated a motor vehicle, a deadly weapon in the manner it was used, and drove the motor vehicle through an intersection at high speed, where vehicles were stopped at a red light, hit a street sign, struck the median, flipped the car, and struck a motor vehicle operated by D.P.” SA 4.

The seventh indictment alleged that the defendant “recklessly engaged in conduct which may have placed a pedestrian in danger of serious bodily injury, when he operated a motor vehicle, a deadly weapon in the manner it was used, and drove the vehicle at high speed over a curb at the corner of Bridge Street and McGreggor Street and almost struck the pedestrian.” SA 6.

The second degree assault indictment alleged that the defendant “recklessly caused bodily injury to another by means of a deadly weapon when, while operating under the influence of a controlled substance, [the defendant] caused a multiple vehicle motor vehicle crash which seriously injured J.W., one of the operators, said vehicle being a deadly weapon as defined by [] RSA 625:11, V.” SA 10.

The disobeying an officer complaint alleged that the defendant, while driving a motor vehicle that was involved in a motor vehicle crash, knowingly “gave a false name to a law enforcement officer that would hinder the law enforcement officer from properly identifying the person in charge of the motor vehicle, ” when the defendant told Officer Messier his name was Thomas Valliere. SA 11. The DWI complaint alleged that the defendant “knowingly drove a motor vehicle upon Elm Street, a way in Manchester, New Hampshire, while under the influence of a controlled drug, which impaired his ability to drive.” DA 50.

On May 27, 2022, the parties argued the defendant’s motion to exclude an expert witness from testifying about an analysis performed on the defendant’s blood. M 1 2. The defendant moved to exclude this witness because “this person [did not] even appear on the witness list, ” and because the State did not provide the defendant with a CV or expert disclosure for the witness. Id. In response, the State argued that it had provided the defendant with a “lab report” in December 2021 and that the expert witness was a “state police analyst.” M1 5-6. The State conceded that it did not provide the defendant with an expert disclosure and argued that the lab report should still be admitted as an exhibit. M1 15-17. The trial court took the matter under advisement, M1 17-18, and later granted the defendant’s motion to preclude this expert witness from testifying and excluded the lab report from trial. M2 7.

On June 6, 2022, the defendant orally moved to exclude testimony from lay witnesses regarding their observations that the defendant was overdosing when he was pulled from his vehicle immediately following the crash. M2 32-33. The defendant specifically argued that the paramedic who administered Narcan to the defendant could not testify that it appeared that the defendant was overdosing because this would be expert testimony. M2 33. He also argued that the retired trooper’s testimony that the defendant was displaying symptoms of an overdose was inadmissible expert testimony. M2 34. The defendant contended that because there would be evidence at trial of the controlled drug that the defendant was under the influence of during the crash, any witness observations of signs or symptoms of an overdose were irrelevant “for the purpose of proving impairment.” M2 35-36.

The State argued that the paramedic’s and the retired trooper’s testimony regarding the defendant’s suspected overdose was not expert testimony but was lay witness opinion testimony pursuant to Rule of Evidence 701. M2 45-46. The State argued that it was not beyond the understanding of the average juror to know when an individual was under the influence of drugs and to know that Narcan is administered to an individual overdosing on controlled drugs. M2 46. The State also contended that both the paramedic and the retired trooper had sufficient training and experience, given their careers, to conclude that the defendant was overdosing without basing this conclusion on “scientific, technical, or other specialized knowledge” that would qualify as expert testimony. MT 46-47; N.H. R. Evid. 701(c).

On June 8, 2022, the morning of jury selection, held that the paramedic could testify that she “thought [the defendant] was overdosing and she gave him Narcan and he was responsive to that. But she cannot testify to the scientific or technical information purposes – the medical purpose. She can testify to what she did, her training and experience. And you’ll see with regard to the trooper, what he can testify to.” T 3. A written order subsequently issued on June 13, 2022 2. DA 39-41.

The defendant orally moved to reconsider the trial court’s ruling regarding the paramedic because defense counsel did not realize that the Narcan administered to the defendant was administered intravenously and not nasally. T 6-10. The defendant asserted that the paramedic should be precluded from testifying that she provided Narcan and should be limited in her testimony to saying only that she provided the defendant with a medication. Id. The State objected, arguing that the paramedic could testify as to what she did and why she did it and that testimony about administering Narcan was lay testimony. T 10. The trial court denied the defendant’s motion to reconsider. T 11. The trial court also denied the defendant’s motion to preclude the paramedic from saying “Narcan” during her testimony. Id.

In the June 13, 2022 order, the trial court found that the paramedic, as a lay witness, could testify that she thought that the defendant was overdosing based on what she observed, administered Narcan, and could explain the effects she observed of Narcan on the defendant. DA 40. The trial court found that the paramedic could not “testify as to how opioids affect the body, how Narcan actually works, or other detailed scientific information.” Id. To support its conclusion, the trial court cited a Massachusetts case which held that a paramedic, as a lay witness, could testify to what he “observed, heard, and did at the scene, including medical treatment administered, ” but could not testify to the “medical purposes, properties, and pharmacologic mechanism or action of Narcan, ” because that required expert testimony. Id. (citing Com. v. Herlihy, No. 07-P-2002, 2009 WL 2044816, at *1 (Mass. App. Ct. Jul. 16, 2009)). The trial court also found that the retired state trooper could testify that “the defendant was under the influence of drugs, and testify to his training and experience as an officer to lay the foundation.” DA 40. The trial court cited to People v. Souva, 141 P.3d 845 (Colo. 2005) to support its conclusion that, “as long as the witnesses are both able to lay foundation for their knowledge, and their testimony does not veer into the area of scientific or technical processes which an average lay person would not be able to comprehend, they may testify” regarding their opinions that the defendant was overdosing. DA 41 (emphasis in original).

At trial, the State presented testimony from each victim named in the individual indictments, except B.J. The State also presented testimony from the paramedic, Officer Messier, and other witnesses who either responded to the crash scene or investigated the cause of the crash. That testimony established the following: On August 2, 2021, at approximately 4:34 p.m., Manchester police responded to a seven-car crash at the intersection of Elm and Bridge Streets. T 153-54, 157. Once on scene, police interviewed several witnesses, some of whom were the named victims in the indictments. T 169. Based on these victims’ testimonies and surveillance video obtained from a local resident, the State established that the defendant drove a green BMW at a high rate of speed over the bridge on Bridge Street toward four lanes of traffic that were stopped at a red light. T 147-55, 165. The defendant tried to drive in between two lanes of vehicles, and, in doing so, hit three of the vehicles. T 169, 174-77. Victims N.S., P.R., and J.W. each occupied one of these vehicles. J.W.’s vehicle, a black Audi, was hit so hard that it was pushed into the center of the intersection. T 181-84. The defendant’s vehicle then “popped up in the air” and flew across the intersection, landing on top of D.P.’s vehicle stopped at the red light on Bridge Street on the opposite side of the intersection, causing D.P.’s vehicle to slide into T.W.’s vehicle next to it. T 183, 198-200, 205-06. The defendant’s vehicle then landed on its side and rolled onto its roof. T 183, 199-200.

The defendant was partially ejected from the driver’s side window. T 157. Natalya Risher, a paramedic who responded to the crash, had been a paramedic for approximately eleven years in August 2021. T 238. When she arrived, she saw the defendant partially ejected from an upside down car. Id. Risher began treating the defendant and observed that he was unconscious, pale, sweaty, and cool to the touch. T 238-39. Risher also observed that his pupils were pinpointed and gave him 0.5 milligrams of Narcan intravenously. T 241.

Officer Messier followed the ambulance transporting the defendant to the hospital. T 210. At the hospital, the officer asked the defendant what his name was, and the defendant told the officer his name was “Tom.” T 213. The officer told the defendant that the registered owner of the car he was driving was Thomas Valliere and asked the defendant if that was his full name. Id. The defendant said “yes.” T 213-14. While they spoke, the defendant used one-word answers, appeared lethargic, and had slurred speech. T 217. The officer also observed that the defendant’s pupils were pinpointed, which from his training and experience he knew to be a side effect of being under the influence of an opiate. T 220. In addition to interviewing witnesses and victims, police investigated the crash by photographing the scene and inspecting the defendant’s vehicle. T 245-49, 259-62, 267-68.

After the State rested, the defendant moved to dismiss all of the charges against him. T 272. The State did not object to the motion to dismiss the reckless conduct charge alleging that the defendant “jump[ed]” a curb and almost struck a pedestrian. T 275. The State objected to the defendant’s motion to dismiss the remaining charges. T 277-82. The trial court dismissed the reckless conduct charge listing B.J. as the victim because B.J. had not testified. T 285-86. The trial court dismissed the DWI and the second degree assault charges because the State did not elicit any testimony that an opiate is a controlled drug and because the jury could not infer that an opiate is a controlled drug. T 285. The trial court denied the defendant’s motion to dismiss the remaining five reckless conduct charges. T 286.

Following this ruling, the defendant objected to the State saying that the defendant was given Narcan at the crash in its closing argument because the two charges referencing the defendant’s use of a controlled drug had been dismissed. T 286-87. The State objected, arguing that the Narcan testimony was relevant to the reckless mens rea for the remaining charges because it allowed the jury to reasonably infer that the defendant “consciously chose to take a controlled drug, consciously chose to get behind the wheel of an automobile, a 2, 000-pound deadly weapon, and drive – consciously chose to drive down a public way.” T 287. The defendant responded that the reckless conduct charges alleged that the defendant was reckless because of his speed, not because of his opioid use, so it was irrelevant that the defendant was given Narcan by a paramedic. T 288. The trial court ruled that the Narcan testimony was relevant because it was “intrinsically involved in what was happening at that time....” Id.

The defendant did not call any witnesses. T 292. During his closing argument, the defendant argued that the State had not presented any evidence that the defendant had used opiates on the day of the crash. T 295. The defendant also argued that the remaining charges only required the jury to consider whether the defendant was speeding and “whether he consciously disregarded the risk that his speed would harm somebody.” T 296. In its closing, the State argued, in part, that the defendant was reckless because he “consciously chose to take opiates” or “consciously chose to take drugs” and drive down a public way at a high rate of speed. T 299, 303. The jury subsequently convicted the defendant of all five reckless conduct charges. T 325-29.

On August 24, 2022, the defendant filed a motion to merge the defendant’s five reckless conduct convictions for sentencing. DA 66-69. The defendant argued that the five reckless conduct convictions all criminalized the same conduct; driving recklessly. DA 67-68. Because all five charges stemmed from one criminal course of conduct, the defendant contended they should be merged into one charge for sentencing. Id. The State objected to the defendant’s motion, arguing that the five reckless conduct convictions should be treated as separate and distinct convictions because each required different evidence and because each alleged a separate “set of circumstances.” SA 13-14. More specifically, each charge required that a specific victim be placed in danger of serious bodily injury and required individual victim testimony to that effect.

The trial court denied the defendant’s motion to merge the charges for sentencing. DA 69. Citing State v. Ramsey, 166 N.H. 45 (2014), DA 69, the trial court found that a unit of prosecution can be based upon each individual harmed by the defendant’s conduct. Id. The trial court also held that because each of the defendant’s convictions required different evidence to prove beyond a reasonable doubt and each charge named a different individual who was harmed, the convictions could be considered five distinct crimes for sentencing. Id.

The trial court subsequently held a sentencing hearing, at which it sentenced the defendant to five separate sentences on each of the convictions. ST 30-34.

The trial court sustainably exercised its discretion in allowing the State to admit evidence of the defendant’s pinpointed pupils and that pinpointed pupils indicate opioid overdose through lay witness testimony. Neither the paramedic nor the officer testified to the scientific reasons why an opioid overdose causes pinpointed pupils or how Narcan counteracts an opioid overdose. Instead, the witnesses permissibly testified that they observed that the defendant had pinpointed pupils and that, in their training and experience, T 220, 238-41, pinpointed pupils indicate an opioid overdose.

The trial court also sustainably admitted this testimony because it was relevant to essential elements of the charges. Both the reckless conduct and second degree assault charges alleged that the defendant acted recklessly, all of the reckless conduct charges alleged that the manner in which the defendant used the vehicle made the vehicle a deadly weapon, and the DWI charge alleged that the defendant was impaired by a controlled drug. The probative value of this testimony was not outweighed by any prejudicial effect because it would not have caused the jury to find the defendant guilty based on an emotional response to his pinpointed pupils, nor was this evidence cumulative or offered by stipulation or other inference.

Even if the trial court erred in admitting this evidence, however, the error was harmless beyond a reasonable doubt because there was strong and overwhelming evidence of the defendant’s guilt, including a video of the crash and multiple witnesses who testified as to what they saw, heard, and felt before, during, and after the crash. Moreover, the evidence was minimal, straightforward, and was not inflammatory. The trial court also sustainably exercised its discretion in allowing the State to argue in its closing argument that the defendant consciously used opioids before he chose to drive his vehicle. At trial, the State was permitted to introduce evidence from lay witnesses that they believed the defendant had opioids or drugs in his system at the time of the crash, based on their training and experience. This evidence was intrinsic to the charged conduct, established why the defendant drove at a high rate of speed into an intersection full of vehicles, and established that the way the defendant operated the vehicle rendered it a deadly weapon. The State therefore permissibly referenced this evidence in its closing argument. The State’s closing argument also did not constructively amend the reckless conduct indictments for the same reasons. Evidence that the defendant used opioids prior to the crash was relevant to explain why the defendant drove at a high rate of speed into stopped traffic and was relevant to show that the manner in which the defendant operated the vehicle made it a deadly weapon.

Even if this Court finds that the State’s closing argument did impermissibly amend the reckless conduct indictments to require the State to prove that the defendant was reckless both in driving at high speeds and while impaired, he has not alleged on appeal any actual prejudice due to this amendment. He has not established that his defense strategy would have changed had the State charged him with reckless conduct for driving while impaired, especially considering he was already charged at trial with DWI and second degree assault, both of which alleged that he was impaired by a controlled drug. As such, even if the State impermissibly amended the indictments with its closing argument, the defendant was not prejudiced by this amendment at trial.

The trial court sustainably exercised its discretion in sentencing the defendant on the five felony reckless conduct convictions after trial. Each conviction was a separate and distinct conviction because each required the State to prove that a different victim was placed in danger of serious bodily injury by the defendant’s conduct. Because reckless conduct is a crime against a person akin to an assault, each victim had to testify to facts showing he or she was placed in danger of serious bodily injury. The unit of prosecution can therefore be based on each individual who was in danger of serious bodily injury and not based solely on the defendant’s reckless conduct. As such, the defendant was sustainably sentenced on five separate reckless conduct convictions.

Accordingly, this Court should uphold the defendant’s convictions and sentences below.

“The admissibility of evidence is a matter left to the sound discretion of the trial court.” State v. White, 155 N.H. 119, 123 (2007). “[This Court] will not reverse the trial court’s decision to admit [or exclude] evidence absent an unsustainable exercise of discretion.” State v. Lopez, 156 N.H. 416, 420 (2007). “To sustain his burden, the defendant must show that the trial court’s decision was unreasonable to the prejudice of his case.” White 155 N.H. at 123. “[In determining] whether a ruling made by a judge is a proper exercise of judicial discretion, [this Court considers] whether the record establishes an objective basis sufficient to sustain the discretionary decision made.” State v. Lambert, 147 N.H. 295, 296 (2001). The defendant argues that the paramedic’s and Officer Messier’s testimony regarding the defendant’s overdose was improperly admitted pursuant to Rule of Evidence 701 and that this testimony was both irrelevant and unfairly prejudicial. DB 17, 22. The trial court sustainably exercised its discretion in admitting this testimony because it was proper lay witness testimony, it was relevant to the charges brought against the defendant, and its probative value outweighed any prejudicial effect.

Pursuant to Rule of Evidence 701, if a lay witness provides opinion testimony, that opinion is “limited to one that is (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” N.H. R. Evid. 701.

“Testimony based upon a witness’s personal knowledge gained through employment is admissible as lay testimony, so long as the witness does not testify to scientific or technical processes which an average lay person would not be able to comprehend.” State v. Boulton, 174 N.H. 470, 478 (2021). “Personal observations made through a witness’s employment may well be observations that any lay person would be capable of making, at least with some training.” Id. (citations and quotation omitted). “Even if the witness’s testimony incorporates some degree of professional knowledge, what is material is whether the testimony encompasses highly technical or specialized … information, or simply elementary concepts that an average juror would be able to understand.” Id. (citations and quotations omitted).

Here, the testimony regarding the defendant’s pinpointed pupils amounted only to personal observations made by Paramedic Risher and Officer Messier. Risher testified that, at the time of trial, she had been a paramedic for twelve years. She also testified that when she treated the defendant on the day of the crash, he was pale, cool to the touch, sweaty, unconscious, and had pinpointed pupils. T 239-40. Based on her observations of him, she testified that she gave him Narcan intravenously. T 240. She also testified that to her, pinpointed pupils indicate opioid overdose. T 241. She could not remember if the defendant reacted to the Narcan. T 241-42.

Risher’s testimony constituted permissible lay witness testimony. Risher testified regarding her observations of the defendant and what she did to treat the defendant before his hospital transport. While she testified that she administered Narcan to the defendant, she did not explain how Narcan works or explain any of the pharmacological properties of Narcan. While she testified that pinpointed pupils could indicate opioid overdose, and while she testified that she administered Narcan to the defendant, she did not testify that, in her opinion, the defendant was in fact, or even likely to be, overdosing on opioids.

Likewise, while Risher did not testify as to why she concluded pinpointed pupils indicate opioid overdose, she did testify that she had been a paramedic for twelve years, allowing the jury to infer that pinpointed pupils could indicate opioid overdose, from both her training and experience. Additionally, the defendant did not cross-examine Risher at all, including about her training, her experience, or the veracity of her observation that the defendant’s pinpointed pupils indicated to her an overdose.

Similarly, Officer Messier’s testimony did not include any information gleaned from highly technical or specialized training. Officer Messier testified that he had been a Manchester police officer since November 2019. T 207-08. He also testified that, during his time as a police officer, he had “interact[ed] with other vehicle accidents” and had “interact[ed] with other vehicle accidents that involved driving under the influence of alcohol or controlled drugs.” T 219. He also explained that, in his training and experience, pinpointed pupils are “typically [] a side effect of being under the influence of opiates.” T 219-20. Officer Messier responded to the scene of the crash and identified the driver of the BMW as the defendant. T 209-10. He later followed the ambulance that transported the defendant from the crash scene to the hospital. T 210-11. At the hospital, Officer Messier testified that he spoke with the defendant and observed that he was lethargic, had slurred speech, and offered mostly one-word answers to the officer’s questions. T 217. Officer Messier also testified that he checked the defendant’s pupils and observed that they “were very pinpointed.” T 218. Officer Messier did not offer any expert testimony that the defendant’s pinpointed pupils meant that he was under the influence of a controlled drug. On cross-examination, the officer said that he “was with [the defendant] through a CT scan at the hospital. They determined he didn’t have any serious bodily injury.” T 222. The officer’s testimony that, to him, pinpointed pupils are an indicator of opioid overdose, was not highly technical or scientific testimony. Like the paramedic, the officer did not provide any scientific explanation for why opioid overdose causes pinpointed pupils. Instead, he simply testified that, based on his training and experience as a police officer, he knew that pinpointed pupils indicate opioid overdose and that he had observed that the defendant had pinpointed pupils at the hospital. This was not highly technical testimony, but was an unchallenged, “elementary concept” that an average juror could understand. Boulton, 174 N.H. at 478.

Notably, on cross-examination, the defendant did not ask the officer, or any other witness, if a head injury could also cause pinpointed pupils, as the defendant now argues on appeal, DB 21, nor did the defendant cross- examine the officer regarding his testimony that pinpointed pupils indicate opioid overdose. As such, the average juror could understand the basic concept that, based on a police officer’s training and experience, pinpointed pupils could indicate opioid overdose.

Moreover, Officer Messier’s testimony that pinpointed pupils could indicate opioid overdose is indistinguishable from an officer testifying that, in his training and experience, he understands “that alcohol consumption can cause nystagmus, which can be detected by a trained police officer through observing the defendant during the administration of an HGN test.” State v. Cochrane, 153 N.H. 420, 423 (2006). As this Court held in Cochrane, an officer testifying regarding the administration and results of an HGN test does not require expert witness testimony. Id. at 423-24. Likewise, as this Court held in Boulton, an officer testifying that it was “preferable to allow a witness to ‘process’ an event before interviewing the witness” about traumatic events was not expert testimony because it was based on her training and experience and was not highly technical testimony, “but rather provide[d] general background information that the average lay person [was] able to understand.” Boulton, 174 N.H. at 479. Given Officer Messier’s testimony that in his training and experience, pinpointed pupils indicate opioid overdose, and because this testimony is similar in nature to an officer testifying that, based on his training and experience, alcohol consumption causes nystagmus, or that it is preferable in an investigation to allow a victim processing time before an interview, Officer Messier did not need to be certified as an expert to offer his testimony.

Accordingly, neither Paramedic Risher nor Officer Messier needed to be certified as expert witnesses to testify that pinpointed pupils could indicate opioid overdose.

Rule of Evidence 401 provides that evidence is relevant if “(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” N.H. R. Evid. 401(a), (b). A trial court “may exclude relevant evidence if its probative value is substantially outweighed by a danger of... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” N.H. R. Evid. 403. “Unfair prejudice is not, of course, mere detriment to a defendant from the tendency of the evidence to prove guilt, in which sense all evidence offered by the prosecution is meant to be prejudicial.” State v. Palermo, 168 N.H. 387, 395 (2015) (citation and quotations omitted). “Rather, the prejudice required to predicate reversible error is an undue tendency to induce a decision against the defendant on some improper basis, commonly one that is emotionally charged.” Id. “Among the factors [this Court] consider[s] in weighing the evidence are: (1) whether the evidence would have a great emotional impact upon a jury; (2) its potential for appealing to a juror’s sense of resentment or outrage; and (3) the extent to which the issue upon which it is offered is established by other evidence, stipulation or inference.” State v. Nightingale, 160 N.H. 569, 574-75 (2010).

Because the trial court is in “the best position to gauge the prejudicial impact of particular testimony, and what steps, if any, are necessary to remedy that prejudice, ” this Court affords “considerable deference to the trial court’s determination in balancing prejudicial impact and probative worth.” Palermo, 168 N.H. at 395-96 (citation and quotations omitted).

Here, Paramedic Risher’s testimony regarding Narcan and that pinpointed pupils indicate an opioid overdose, and Officer Messier’s testimony that the defendant had pinpointed pupils, and that pinpointed pupils indicate opioid overdose, was relevant to proving the defendant’s mental state relative to the second-degree assault and reckless conduct charges, as well as to proving that the defendant was impaired by a controlled drug, relative to the DWI charge.

The defendant’s main theory of his defense, based on his opening statement, was that the State could not prove beyond a reasonable doubt that he acted recklessly. T 146. As such, the defendant’s mental state was a fact of consequence that was in dispute throughout the trial. Thus, it was relevant whether the defendant chose to use opioids prior to driving a vehicle at high speeds towards an intersection with vehicles stopped at a red light because this evidence would assist the jury in determining whether the State proved that the defendant acted recklessly beyond a reasonable doubt. See RSA 626:2 (“A person acts recklessly with respect to a material element of an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the circumstances known to him, its disregard constitutes a gross deviation from the conduct that a law-abiding person would observe in the situation”).

Likewise, the challenged testimony was also relevant to whether the defendant was impaired to any degree by a controlled drug when he was driving a vehicle on Bridge Street, one of the elements of the DWI charge, and whether he was impaired by a controlled drug when he assaulted J.W., an element of the second-degree assault charge. SA 10. It was also relevant to establish that the manner in which the defendant operated the motor vehicle, specifically driving the vehicle at a high speed toward traffic stopped at a red light after using opioids, made the vehicle a deadly weapon. Accordingly, the challenged testimony was relevant to admit at trial.

The potential prejudice of the paramedic’s and the officer’s challenged testimony did not outweigh its probative value. Testimony that the defendant was given Narcan, that he had pinpointed pupils, and that pinpointed pupils indicate opioid overdose would not have induced the jury to decide whether the State met its burden based on emotion. The testimony regarding the defendant’s potential opioid use was relatively short and nonjudgmental, meaning the jury did not hear from either the paramedic or the police officer about any emotional impact the defendant’s opioid use had on them, or any emotional impact the paramedic’s administration of Narcan to the defendant had on her. Likewise, the testimony about the defendant’s pinpointed pupils and the Narcan administration was not particularly gruesome, but instead was delivered by a paramedic, who is trained to determine if someone is overdosing so that she can determine whether Narcan administration is appropriate, and by a police officer, who had encountered individuals under the influence of controlled drugs prior to the day of the crash, and who only testified to observing the defendant’s pinpointed pupils. Their testimony was no more emotional than the other witnesses who testified about the defendant’s vehicle striking theirs as he plowed through the intersection, or the other witnesses who observed the defendant after the crash.

Additionally, this testimony was not cumulative or established by other evidence. The paramedic testified as to her observations and treatment of the defendant at the crash site while the officer testified as to his observations of the defendant sometime later at the hospital. No other paramedics testified about their treatment of the defendant and no other witness testified about the defendant’s appearance or treatment at the hospital.

Accordingly, the challenged testimony was relevant to the charges brought against the defendant and any prejudice was outweighed by its probative value.

Even if the trial court erred in allowing the State to admit evidence of the defendant’s pinpointed pupils, this error was harmless beyond a reasonable doubt.

“To determine whether the State has proven beyond a reasonable doubt that an error did not affect the verdict, [this Court] must evaluate the totality of the circumstances at trial.” State v. Boudreau, No. 2021-0350, 2023 N.H. LEXIS 107, at *9 (N.H. Jun. 7, 2023). This Court considers the following factors in determining whether an error did not affect the verdict: “(1) the strength of the State’s case; (2) whether the evidence was cumulative or inconsequential in relation to the State’s case; (3) the frequency of the error; (4) the presence or absence of evidence corroborating or contradicting the erroneously admitted or excluded evidence; (5) the nature of the defense; (6) the circumstances in which the evidence was introduced at trial; (7) whether the trial court took any curative steps; (8) whether the evidence is of an inflammatory nature; and (9) whether the other evidence of the defendant’s guilt is overwhelming.” Id. at *10 (citations omitted). No one factor is dispositive, and this Court may consider other factors not listed above. Id.

The State’s evidence against the defendant at trial was both strong and overwhelming. The State admitted a video of the defendant crashing into the victims’ vehicles as they were stopped at the red light. Multiple witnesses at the intersection testified as to the speed with which the defendant crashed into the stopped vehicles. T 178, 180, 205-06. The witnesses also testified about what happened to the defendant’s vehicle after he crashed into the stopped vehicles, including hitting a black Audi so hard that it flew into the middle of the intersection. The witnesses also saw the defendant’s vehicle flip in the air and land on the other side of the intersection, striking two vehicles. Thus, there was both overwhelming and strong evidence that the defendant recklessly placed multiple, specific victims in danger of serious bodily injury by driving at a high speed into an intersection at which vehicles were stopped, crashing into multiple vehicles as he tried to drive in between them, striking a median, flipping the vehicle into the air, and hitting other vehicles as it landed. Moreover, the testimony regarding the defendant’s pinpointed pupils was not lengthy or comprehensive. See State v. Thibedau, 142 N.H. 325, 330 (1997). Two of the State’s thirteen witnesses, a police officer and a paramedic, testified that they observed the defendant’s pinpointed pupils. Only the paramedic testified that this could indicate that the defendant was overdosing on opioids. The officer only testified that, based on his training and experience, pinpointed pupils are an indicator of opioid overdose, but did not testify at trial that the defendant had overdosed on opioids. Likewise, the paramedic also testified that she gave the defendant Narcan intravenously at the crash scene. Combined, their testimony regarding pinpointed pupils only covered approximately eight pages of a 208-page trial transcript. T 217-20, 239-42. As such, testimony about the defendant’s pinpointed pupils was minimal and straightforward. Additionally, the circumstances under which the testimony was admitted shows that any error was harmless. During the State’s case, the State was attempting to prove a DWI charge. The paramedic’s and officer’s testimony was relevant to that charge. The evidence was also relevant as intrinsic evidence of the reckless conduct charges. Specifically, the jury could infer from the paramedic’s and the officer’s observations of the defendant that the defendant used opioids prior to the crash, which caused him to drive at a high rate of speed towards the intersection where many vehicles were stopped at a red light. The evidence was also relevant to prove that the manner in which the defendant operated the vehicle made it a deadly weapon.

Finally, the evidence was not inflammatory because it was essential to proving the DWI and the second-degree assault charges beyond a reasonable doubt. To prove both charges, the State was required to prove that the defendant was impaired by a controlled drug. Admitting evidence of the paramedic’s and officer’s observations that the defendant had pinpointed pupils, which could indicate opioid use, was essential to the State’s case and was not established by other less inflammatory evidence. See State v. Dustin, 122 N.H. 544, 547 (1982) (finding that the victim’s testimony about her subjective fear “of rape and bodily injury” at the hands of the defendant was inflammatory and nonessential to the State’s criminal restraint case, especially given there was “other less inflammatory evidence” establishing the elements of criminal restraint). Accordingly, if the trial court erred in admitting the challenged evidence, the error was harmless beyond a reasonable doubt.

“A prosecutor may draw reasonable inferences from the facts proven and has great latitude in closing argument to both summarize and discuss the evidence presented to the jury and to urge them to draw inferences of guilt from the evidence.” State v. Gaudet, 166 N.H. 390, 399 (2014) (quotations and citation omitted). “The trial court is in the best position to determine what remedy will adequately correct the prejudice crated by a prosecutor’s remarks, and absent an unsustainable exercise of discretion, [this Court] will not overturn its decision.” Id. (quotations and citation omitted).

This Court has held that “failure of proof as to an allegation can be considered a constructive amendment of the indictment.” State v. French, 146 N.H. 97, 101 (2001). This Court reasoned that, “while the elements of the charged offense must, of course, be proved beyond a reasonable doubt, immaterial or superfluous allegations contained in an indictment... need not be proved at trial.” Id. (quotations and citations omitted). “With respect to allegations not obviously falling within the category of element or surplusage, [this Court] look[s] to whether the defendant has been prejudiced to determine if there has been an improper variance between the indictment and the proof offered at trial.” Id.

This Court also held in State v. Kilgus that “[a] variance between facts proved at trial and those alleged in the indictment constitutes grounds for reversing a conviction only when it affects the defendant’s substantial rights, that is, when the variance deprives a defendant of sufficiently specific information to prepare a defense and to be protected against surprise at trial, and prevents him from asserting his constitutional protection against double jeopardy.” 128 N.H. 577, 585 (1986) (quotations and citation omitted).

The defendant’s argument on appeal that the State impermissibly amended the indictments by arguing that the defendant used opioids prior to the crash was not preserved for appellate review because he did not raise this argument before the trial court. This Court has held that it requires that “counsel take contemporaneous objections and exceptions to preserve issues for [the Court’s] consideration.” State v. Glidden, 122 N.H. 41, 48 (1982). While the defendant objected to the State referencing in its closing argument that the defendant was given Narcan, the defendant did not object to the State’s mention of the defendant’s opioid use in its closing argument. T 286-87. Likewise, the defendant did not argue to the trial court that the State’s mention of Narcan or the defendant’s opioid use in its closing would impermissibly amend the indictments. The trial court did not have an opportunity to rule on this issue before it was presented to this Court, and therefore, the issue is not preserved. See State v. Batista-Salva, 171 N.H. 818, 822 (2019) (“This preservation requirement... reflects the general policy that trial forums should have an opportunity to rule on issues and correct errors before they are presented to the appellate court”).

If this Court finds that the defendant’s argument is preserved for appellate review, his argument still fails because the State did not amend the indictments through its closing argument. A prosecutor is given “great latitude” to argue that the jury can draw inferences from the facts presented at trial. Gaudet, 166 N.H. at 399. When the prosecutor argued that the defendant acted recklessly by choosing to use opioids and then choosing to drive a vehicle down a busy street during a busy part of the day at a high rate of speed, this did not amend the reckless conduct charges to require the State to prove that the defendant was impaired by a controlled drug as he drove.

Based on the evidence elicited at trial, the defendant’s opioid use was intrinsic to the charged conduct. See State v. Papillon, 173 N.H. 13, 24-25 (2020) (holding that evidence is intrinsic to the charged crime “when the evidence of the other act and the evidence of the crime charged are ‘inextricably intertwined’ or both acts are part of a ‘single criminal episode’ or the acts were ‘necessary preliminaries’ to the crime charged.”); State v. Wells, 166 N.H. 73, 78 (2014) (“This type of evidence is admissible under the rationale that events do not occur in a vacuum, and the jury has a right to hear what occurred immediately prior to and subsequent to the commission of [the charged] act so that it may realistically evaluate the evidence.” (quotations and citation omitted)).

Here, because the opioid evidence was intrinsic, the State could permissibly argue in its closing that the defendant acted recklessly when he chose to use opioids and then drive a vehicle at a high rate of speed. Likewise, the State could permissibly argue that his use of opioids is likely what caused the defendant to speed through the intersection of stopped vehicles. When considered together, the defendant’s actions on the day of the crash, specifically his choice to use opioids, drive a vehicle, and speed through an intersection when his lanes of travel had a red light, were all evidence of the defendant’s reckless mens rea, which the State had to prove beyond a reasonable doubt at trial.

Additionally, the defendant’s choice to use opioids prior to driving a vehicle was evidence that the defendant used his vehicle as a deadly weapon, which the State also had to prove beyond a reasonable doubt. “Whether the defendant operated his vehicle in a manner that rendered the vehicle a deadly weapon is a question of fact for the jury to decide based on the totality of the circumstances.” State v. Carvenale, 172 N.H. 700, 706 (2019). As such, arguing that the defendant’s choice to use opioids, drive a vehicle, and speed that vehicle through an intersection at which other vehicles were stopped at a red light was permissible because, under this set of circumstances, the jury could find beyond a reasonable doubt that the defendant used his vehicle as a deadly weapon.

Referencing the defendant’s opioid use as part of the defendant’s criminal episode on the day of the crash allowed the jury to evaluate the evidence and determine whether the State proved its case beyond a reasonable doubt. Accordingly, the State’s closing did not amend the indictments.

Even if this Court finds that the prosecutor’s closing argument constructively amended the indictments to require the State to prove that the defendant’s reckless conduct was both driving while impaired and driving at a high speed, the defendant’s argument still fails because he was not prejudiced by this amendment. For an amendment to be prejudicial, it must have affected the defendant’s substantial rights by preventing him from preparing a defense. Kilgus, 128 N.H. at 585. Despite arguing in his brief that the prosecutor’s closing argument impermissibly amended the indictment, the defendant has not argued how this alleged amendment prejudiced him at trial. DB 29-31. The defendant was prepared to defend against a claim that he was driving while impaired on the day of the crash because the State had charged him with two crimes alleging that he was impaired by a controlled drug; a DWI and a second degree assault. Both charges were dismissed after the State rested because the State had not proven whether opioids were controlled drugs, T 285-86; they were not dismissed because the State failed to put on evidence of impairment.

Given that the defendant was prepared to defend against the State’s allegation that he was driving while impaired, he cannot claim now that an amendment to the reckless conduct charges requiring the State to prove that he was driving at a high rate of speed while impaired prejudiced him in preparing for trial. Moreover, he has not alleged in his brief how his defense strategy would have changed had the reckless conduct indictments accused him of driving at a high rate of speed while impaired. Accordingly, any amendment the prosecutor made through his closing argument to the reckless conduct indictments did not affect the defendant’s substantial rights.

“The Double Jeopardy provisions of the State and Federal Constitutions provide protection against: (1) subsequent prosecution for the same offense after acquittal; (2) subsequent prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.” State v. Woodbury, 172 N.H. 358, 368 (2019). To determine whether the defendant has received multiple punishments for the same offense, this Court “examine[s] whether proof of the elements of the crimes as charged will require a difference in evidence.” Id. The Court “address[es] the defendant’s double jeopardy claim under the State Constitution and rel[ies] upon federal law only to aid [its] analysis.” State v. Glenn, 167 N.H. 171, 178 (2014). This Court reviews “questions of constitutional law de novo.” State v. Leavitt, 165 N.H. 32, 33 (2013). “Multiple punishment cases … come in two varieties.” Ramsey, 166 N.H. at 51 (quotations and citation omitted). “First, there are the so-called double-description cases, in which the issue is whether two statutes describe two separate offenses or are merely different descriptions of the same offense.” Id. (quotations and citation omitted). “Second, there are unit of prosecution cases [in which] the problem is not that the same course of conduct is proscribed by more than one statute but that a defendant’s continuing course of conduct is fragmented into more than one violation of a single statutory provision.” Id. (quotations and citation omitted). “In both ‘double description’ and ‘unit of prosecution’ cases, [this Court] examine[s] whether proof of the elements of the crimes as charged will require a difference in evidence.” Id.

At trial, the jury convicted the defendant of five felony counts of reckless conduct with a deadly weapon. Three of these indictments alleged that the defendant “recklessly engaged in conduct which may have placed [the victim] in danger of serious bodily injury when he operated a motor vehicle, a deadly weapon in the manner it was used, and drove the motor vehicle at high speed towards an intersection where [the victim’s] vehicle was stopped in traffic at a red light, and struck [the victim’s] vehicle.” DA 44-45, 47.

The fourth indictment alleged that the defendant “recklessly engaged in conduct which may have placed T.W. in danger of serious bodily injury when he operated a motor vehicle, a deadly weapon in the manner it was used, and drove the motor vehicle through an intersection at high speed, where vehicles were stopped at a red light, hit a street sign, struck the median, flipped the car, and struck a motor vehicle operated by D.P., and caused D.P.’s vehicle to strike the vehicle operated by T.W.” DA 43. The fifth indictment alleged that the defendant “recklessly engaged in conduct which may have placed D.P. in danger of serious bodily injury when he operated a motor vehicle, a deadly weapon in the manner it was used, and drove the motor vehicle through an intersection at high speed, where vehicles were stopped at a red light, hit a street sign, struck the median, flipped the car, and struck a motor vehicle operated by D.P.” DA 46. “As charged, each indictment required the State to prove a fact not necessary to the other.” Ramsey, 166 N.H. at 51. As the trial court sustainably found, each charge “was based upon a separate collision with a different vehicle and driver.” DA 69. To prove each indictment beyond a reasonable doubt, the State was required to prove that the defendant’s reckless conduct placed or may have placed five separate individuals in danger of serious bodily injury. RSA 631:3, I. The State had to have the five victims specifically testify about their circumstances to show how each of them was placed in danger of serious bodily injury. The State ultimately proved these five charges beyond a reasonable doubt by proving that the defendant’s reckless behavior placed the five victims in danger of serious bodily injury. As such, the unit of prosecution here is based upon each individual who was placed in danger of serious bodily injury by the defendant’s behavior. See State v. Fogg, 170 N.H. 234, 237 (2017) (“The defendant concedes that, at least with respect to the foregoing assault offenses, the unit of prosecution is based upon each individual who is harmed by the assaultive conduct”). Accordingly, the trial court sustainably sentenced the defendant on five separate reckless conduct convictions. On appeal, the defendant relies on Fogg to argue that these five convictions should have been merged because the “gravamen” of the reckless conduct offense is the defendant’s conduct, not the harm he may cause. DB 32-33. This reliance on Fogg is misplaced. In Fogg, this Court held that a defendant could only be charged with one aggravated DWI for one instance of driving because the “gravamen of the offense [is] the operation of a vehicle while intoxicated.” Fogg, 170 N.H. at 237. This Court also held that “a single aggravated DWI charge arises from operating a vehicle on a particular occasion.” Id. This Court noted, however, that a defendant could commit multiple aggravated DWIs if, “during the course of operation of a vehicle, an intoxicated driver were to cause two or more collisions, each of which resulted in serious bodily injury.” Id. at n.1.

This Court also found that, in addition to charging a defendant with aggravated DWI, the State could also charge a defendant with varying levels of assault because, in assault offenses, the “unit of prosecution is based upon each individual who is harmed by the assaultive conduct.” Id. at 237. This Court likely found this distinction between a DWI charge and an assault charge because a DWI charge is inherently a driving offense that does not have harm to a specific individual as an element of the offense. Rather, the essential elements of the DWI are that the defendant operated a motor vehicle upon a way in the State of New Hampshire while impaired by a controlled drug, which does not include harm to another as an element of the offense. RSA 265-A:2.

In contrast, reckless conduct is inherently an “assault and related offenses” crime. It is housed in the “criminal code” title and the “assault and related offenses” chapter. RSA 631. It requires the State to prove that the defendant’s reckless conduct placed or may have placed “another” in danger of serious bodily injury. Thus, the unit of prosecution in a reckless conduct offense is harm-centered, because it is based upon each individual who is placed in danger of serious bodily injury, much like the unit of prosecution in an assault case is based on each individual harmed by the assaultive conduct. See State v. Castine, 173 N.H. 217, 219-20 (2020) (holding that the unit of prosecution in an assault case is “each act of knowingly or recklessly causing serious bodily injury to a person... not each individual injury”); United States v. Moldonado-Passage, 56 F.4th 830, 841 (10th Cir. 2022) (holding that the unit of prosecution in an use of interstate travel to solicit murder case “focuses on the resulting harm from conduct rather than the means taken to achieve it”). The trial court therefore sustainably exercised its discretion when it sentenced the defendant on the five separate reckless conduct convictions.

For the foregoing reasons, the State respectfully requests that this Honorable Court affirm the defendant’s convictions and sentence below. The State requests a 15-minute oral argument delivered by Audriana Mekula, Esq.

I, Audriana Mekula, hereby certify that pursuant to Rule 16(11) of the New Hampshire Supreme Court Rules, this brief contains approximately 9, 483 words, which is fewer than the words permitted by this Court’s rules. Counsel relied upon the word count of the computer program used to prepare this brief.

September 8, 2023 /s/ Audriana Mekula Audriana Mekula

I, Audriana Mekula, hereby certify that a copy of the State’s brief shall be served on Senior Assistant Appellate Defender Pamela Phelan, Esq., counsel for the defendant, through the New Hampshire Supreme Court’s electronic filing system.

September 8, 2023 /s/ Audriana Mekula Audriana Mekula