State of New Hampshire v. Christian Cummings

II. Whether the trial court’s answer to the jury’s question was plainly erroneous.

III. Whether the State produced sufficient evidence that the defendant’s criminal negligence caused K.C.’s death.

IV. Whether the defendant’s ineffective assistance of counsel claim is appropriately raised on direct appeal.

The Grand Jury indicted the defendant with two counts of reckless conduct, three counts of endangering the welfare of a child, and two counts of negligent homicide. T 1 at 15-16.1 The jury found him guilty of one count of endangering the welfare of a child, one count of reckless conduct, and one count of negligent homicide. T5 at 768. The trial court (Anderson, J.) sentenced the defendant to one and a half to five years, to run consecutively with two suspended 12 months sentences. (S at 40.) The defendant appealed, but this Court stayed the appeal so the trial court could rule on the defendant’s motion to reduce, amend, or suspend sentence, or in the alternative, for a new trial. A. at 3-16. The trial court denied that motion, and this Court reinstated the appeal. A at 17.

“T1-T5” refers to the trial transcript.

“S” refers to the sentencing hearing transcript.

“Def. Br.” refers to the defendant’s brief.

“A” refers to the appendix to the State’s brief.

The New Hampshire Department of Health and Human Services, Division of Children, Youth, and Services explicitly told the defendant that he was not to allow K.C. to reside at his grandparents’ home in Weare, which was in “a state of squalor.” T2 at 198, T5 at 694. Despite this warning, the defendant moved in with his grandparents in the winter of 2019. On February 14, 2019, K.C. was found dead, with her body covered in a “brown substance” and infested with lice. T2 at 221, 236-40. On that day, the defendant; his younger brother, G.C.; his cousin, J.J.; and his grandparents were all staying at the house in Weare. T1 at 56. Late that night, the family awoke to hear Mikayla screaming that the baby was not breathing. T1 at 63, 104. Someone in the family called 911, and Officers William Lewis, Matthew Belletete, and Ryan Frisbie of the Weare Police Department, along with Christine Houde, a firefighter and paramedic, arrived at the home. T1 at 105. K.C. was taken to the hospital, where she was pronounced dead. T2 at 240.

Doctor Christine James, the Deputy Medical Examiner for the State of New Hampshire, performed K.C.’s autopsy. Dr. James noticed that K.C.’s urine was dark brown, a sign of dehydration. T3 at 319-20, 337-38. She also discovered that K.C. had a urinary tract infection (UTI) and that her sodium levels were abnormally high. T3 at 320-21. Dr. James concluded that K.C.’s cause of death was “probable urosepsis with dehydration.” T3 at 345. Her autopsy report listed anemia attributed to lice infestation as a contributory cause of death. T3 at 345.

[K.C.] succumbing to urosepsis.” T1 at 17. Two years later, the State obtained an additional negligent homicide indictment asserting that the defendant’s neglect caused K.C. to succumb to “urosepsis, dehydration, and/or electrolyte imbalance.” T1 at 17.

T1 at 68-71. The defendant’s grandfather testified that K.C. was vomiting and had a virus days before her death. T2 at 129. Grandfather also claimed that he was not aware of the extent of K.C.’s lice infestation because the baby always wore a knit cap. T2 at 134. Grandfather stated he was “horrified” when he saw the extent of the infestation. T2 at 134. As he explained, “I never knew lice could get that big.” T1 at 134-35. 2. The First Responders’ Testimony The responding police officers and Paramedic Houde also testified about the actions they took after responding to the 911 call on February 19, 2019. Officer Frisbie testified that he interviewed the defendant’s grandfather after K.C.’s death. T2 at 155. Grandfather told Officer Frisbie that he had previously offered to take K.C. to the hospital and tried approaching the defendant and Mikayla about K.C.’s hygiene but found it “hard to bring up anything to either of them.” T2 at 154-55. Officers Lewis and Belletete testified that they stayed at the home in Weare after K.C. was taken to the hospital and investigated the condition of her room. Officer Belletete testified that cigarette butts and open containers of milk were strewn throughout the room. T2 at 197. Officer Lewis described the room as a “disaster” and testified that it contained animals, including a caged chinchilla, and scattered food, as well as flies flying around a trashcan. T2 at 221. To Officer Lewis, the odor inside the room was “just worse than I had ever smelled.” T2 at 221. Paramedic Houde testified that she accompanied K.C. in the ambulance. T2 at 150. While examining K.C., Paramedic Houde saw that her fingernails were “extremely dirty” and that there was a brown substance in her ears and the folds of her neck. T2 at 236-40. Paramedic Houde also saw “filth” on K.C.’s fingers and insider her ears, as well as a “very extreme” number of louses coming from the baby’s head. T2 at 240. There were so many lice coming off K.C. that they were “all over” the ambulance and “covered” Paramedic Houde, who had to change into scrubs and decontaminate. T2 at 248-49.

3. Dr. James’s Testimony A key dispute at trial was whether K.C.’s death was caused by a combination of urosepsis, dehydration, and electrolyte imbalance, as Dr. James stated in her autopsy report, or sudden unexplained death in childhood. As a result, Dr. James testified extensively about her training, each step in K.C.’s autopsy, and the findings and conclusions in her report. Dr. James explained that she was board certified in anatomic, clinical, and forensic pathology. T3 at 273. Turning to the steps in the autopsy, Dr. James noted that a stain from K.C.’s liver was “completely negative” for iron, leading Dr. James to diagnose iron deficiency anemia. T3 at 306-07. Dr. James also testified that a sample of K.C.’s vitreous fluid contained elevated levels of sodium, chloride, and urea nitrogen. T3 at 320- 21. These electrolyte levels, along with K.C.’s dark brown urine, were consistent with dehydration and possible renal failure. T3 at 320-21, 336- 38. K.C.’s sodium level was measured at 173 milligrams per deciliter, which Dr. James diagnosed as “severe hypernatremia.” T3 at 322-23. She also explained that sodium levels above 150 millimoles have a 60 percent chance of mortality. T3 at 323.

In K.C.’s lungs, Dr. James found hemorrhage, edema, and an “abundance” of neutrophils, inflammatory cells that respond to acute infection. T3 at 298-300. K.C.’s blood tested negative for bacteria, which was inconsistent with sepsis. T3 at 316. Dr. James opined that this result was a “false negative” because toddlers do not have “a lot of blood to work with” and she “could only send one culture [for testing].” T3 at 310-11, 316-17.

K.C.’s urine tested positive for E.coli, leading Dr. James to conclude that K.C. developed a UTI and the infection spread. T3 at 320. As she explained, “the positive E. coli in her urine showed that she had a urinary tract infection. The other findings were suggestive of a more systematic process. So I found the source of infection and it looked like that process had started to spread to other organs.” T3 at 320. Based on these findings, Dr. James concluded that K.C.’s UTI became sepsis because a “urinary tract infection is a localized infection” but “[u]rosepsis implies that the infection has now spread through the body to other organs.” T at 330. Dr. James further explained that her autopsy report listed “probable urosepsis” as a cause of death, instead of just “urosepsis, ” because sepsis is “a diagnosis that’s made in living people based on very certain criteria, and those are criteria that I don’t have in a decedent.” T3 at 330. This was referred to as the “SIRS” criteria, which requires the presence of an infection and two of the following: elevated respiration, fever, changes in blood pressure, and elevated white blood cell count. T3 at 332-33, 413. Nevertheless, Dr. James was “certain” K.C. had urosepsis, based on the source of the infection and the “evidence of systemic spread of that infection[.]” T3 at 421. Dr. James further opined that the anemia was caused by the “severe infestation” of lice feeding on K.C.’s blood rather than a nutritional deficiency because the child appeared to be well feed. T3 at 342-44.

Dr. James also explained how K.C.’s anemia, poor hygiene, sepsis, dehydration, and electrolyte imbalance were interrelated: And then she [K.C.] gets this UTI on top of it, which then goes untreated, unrecognized, and progresses to probable sepsis. Again, I can ’t make that definitive diagnosis, because that can only be made in a living person based on the SIRS criteria which is only applicable to living people.

That urinary tract infection also caused her to be dehydrated, because she’s urinating more than she should be and maybe not drinking as much as she normally does because sh e’s, again, not feeling well. So all three kind of go hand in hand.

The sodium level is exceptionally high. So that urosepsis with the dehydration is her cause of death. And I contributed the microcytic -- or the iron deficiency anemia due to the lice because she was already at a weakened state because of that infestation.

T3 at 345.

Dr. James testified that improper hygiene, such as sitting in a dirty diaper, could lead to a UTI. T4 at 346. Although K.C.’s anemia left her further weakened, Dr. James did not believe it was severe enough on its own to be fatal. T3 at 349. Asked if electrolyte imbalance could cause death, Dr. James answered, “It could have. And again, it is part of my cause of death statement, urosepsis with dehydration, because the urosepsis is related to the dehydration because of the polyuria.” T3 at 350. On cross-examination, Dr. James was asked if UTI alone caused K.C.’s death, and she testified that the cause of death was UTI “in conjunction with other factors... not alone.” T3 at 371. She also agreed with defense counsel that sepsis was “very deadly if it gets to the blood[.]” T3 at 378. During redirect examination, Dr. James reiterated her conclusion that K.C.’s cause of death was “probable urosepsis with dehydration” with the “contributory cause as anemia due to lice.” T3 at 421. 4. Dr. Resmive Oral’s Testimony The State also called Dr. Resmive Oral as an expert on pediatrics and pediatric abuse and neglect. Dr. Oral testified that K.C.’s medical records showed that she was examined by a nephrologist before her death, who told her parents that, because K.C. had only one kidney, they should call a nephrology clinic if their child experienced a fever, vomiting, or a change in urine color and that they should be aware of the possibility of a UTI. T4 at 480-81. K.C. had also seen a doctor because of a lice infestation on July 11, 2018, and the doctor recommended applying a particular shampoo, which was to be reapplied eight days later. T4 at 534. The patient instructions for this visit warned to “watch closely for changes in your child’s health and make sure to contact your doctor if you see live lice or new nits after you have followed the directions for your medicine, anyone else in your family has lice, [or] your child doesn’t get better as expected.” T4 at 536-37.

Dr. Oral testified that keeping a child with one kidney hygienic was “extremely important” but within the ability of even an “unsophisticated parent, ” and the treatment for head lice was “something anybody can accomplish.” T4 at 478, 487. Dr. Oral also explained that a child suffering from a UTI would cry excessively. T4 at 489. Further, Dr. Oral testified that a dehydrated child’s urine would not turn dark brown suddenly but would grow darker over time. T4 at 489. Based on her review of Dr.

James’s autopsy report, K.C.’s medical records, and photographs of the home in Weare, Dr. Oral opined that K.C. experienced medical neglect from lack of parental care and control. T4 at 496. Dr. Oral was the State’s final witness. After the State rested, the trial court asked the defendant to “hold off” on his motion to dismiss until the scheduled afternoon break. T4 at 564.

James also explained what happens to a person “in the late stages” of urosepsis:

pressure, so they have temperature instability, blood pressure instability, they have very poor circulation; the skin becomes kind of mottled.

They get lethargic and there may or may not have other skin -- skin reactions like petechiae or purpura or whatever.

But ultimately, their blood pressure drops below a threshold that can support life... and they die of sepsis.

T4 at 595.

However, Dr. Andrew did not believe that there was sufficient evidence that K.C.’s UTI entered her blood stream in light of the negative result from her blood culture. T4 at 594-98. Although Dr. Andrew was “absolutely positively” certain K.C. had a UTI, he did not believe she had urosepsis. T4 at 600 At this point in Dr. Andrew’s testimony, the afternoon break occurred.

2. The Defendant’s Motion to Dismiss During the break, the defendant moved to dismiss both counts of negligent homicide. He contended that Dr. James’s opinion that K.C. had “probable” urosepsis was insufficient to prove beyond a reasonable doubt that his neglect caused K.C. to succumb to urosepsis, as alleged in the indictments. T4 at 603-04. The defendant also argued that there was insufficient proof of criminal negligence and causation. T4 at 604-606. The State responded that there was sufficient evidence of criminal negligence and causation given the “filthy conditions of the home” and evidence that K.C. was experiencing urosepsis, which would have been “open and apparent” to the defendant. T4 at 609. The State further argued there was sufficient evidence that K.C. died of urosepsis despite Dr. James’s use of the word “probable.” T4 at 612-13. The trial court found that the State produced sufficient evidence for the charge alleging the defendant’s criminal negligence caused K.C. to succumb to urosepsis, dehydration, and/or electrolyte imbalance. T4 at 613. However, the trial court dismissed the earlier indictment alleging the defendant’s negligence caused K.C. to succumb to urosepsis. It reasoned that: I thought it was clear she could not testify that urosepsis caused the death in the absence of the other two factors. I thought you asked her plainly to do that and she wouldn ’t do that.

That’s how I read her testimony on that. So for that reason, I’m going to - 2020 is out, but 2022 remains[.] T4 at 613.

The trial court also dismissed for lack of evidence the charges alleging reckless conduct and child endangerment for allowing K.C. to be malnourished and exposed to inclement weather. T4 at 619. The trial court denied the defendant’s motion to dismiss the charges alleging the defendant committed reckless conduct and child endangerment by allowing K.C. to be exposed to lice. T4 at 619-23.

3. Dr. Andrew’s Testimony Resumed

Following the break, Dr. Andrew’s testimony resumed. He testified there was “rock solid” evidence K.C. was dehydrated but opined she was not so “severely dehydrated to the point where it caused or contributed to her death.” T5 at 628-29. He believed K.C. may have been “a little anemic.” T4 at 630. Based on his review of Dr. James’s autopsy report, he testified that he would have certified K.C.’s death as sudden unexplained death in childhood, with the UTI as an “intrinsic factor” not as a “causative or contributory factor.” T4 at 632.

Although he criticized Dr. James for diagnosing “probable urosepsis, ” Dr. Andrew admitted on cross-examination that he was not board certified in clinical pathology and was not familiar with the SIRS criteria. T4 at 651, 656. He also conceded that dehydration, even when not fatal, stresses the body and can contribute to a fatality. T4 at 660. Dr. Andrew also agreed that K.C.’s sodium level, 173 milliequivalents per liter, was abnormally high and potentially fatal. T4 at 658-59. Dr. Andrew described an electrolyte imbalance as “certainly” a “stress on the system” that “can contribute to death by being part of an infectious process.” T4 at 661. The defendant then rested.

4. The Defendant’s Renewed Motion to Dismiss and Closing Arguments

The defendant renewed his motion to dismiss at the close of the evidence, incorporating the arguments already raised in his previous motion. T5 at 683. He also contended that dismissing the remaining negligent homicide charge was appropriate based on what he characterized as Dr. Andrew’s “vastly greater experience.” T5 at 683-84. The State argued the persuasiveness of Dr. Andrew’s testimony was an issue for the jury. T5 at 684. The trial court agreed and denied the motion. T5 at 684.

He asserted, “Is it really and/or? Dr. James seemed to make clear in her testimony that she was pushing you to endorse it as all three [urosepsis, dehydration, and electrolyte imbalance]; that the three things worked together. That’s this burden that the State has taken on in terms of what witness they actually presented.” T5 at 696. He then conceded that K.C. was dehydrated and had an electrolyte imbalance but argued “the State has not provided any kind of a convincing case for severe dehydration[.]” T5 at 696-97. Defense counsel opined that “when you come down to it, everything in this case hinges on urosepsis.” T5 at 697. Defense counsel then attacked the persuasiveness of Dr. James’s opinion and urged the jury to place greater weight on Dr. Andrew’s testimony. T5 at 697-02; 708-20. The State used its closing to vigorously defend the persuasiveness of Dr. James’s opinion. T5 at 722-25. It also highlighted the testimony explaining that K.C.’s environment contributed to her poor health and emphasized the evidence showing the defendant should have been aware of her worsening condition. T5 at 727-30. It characterized the trial as “a case of profound neglect ultimately resulting in the death of [K.C.] by some combination of urosepsis, dehydration, and an electrolyte imbalance.” T5 at 721.

T5 at 762. The trial court asked defense counsel if he was “excluding any, ” and defense counsel responded, “It could be one, is what you’re saying.” T5 at 762. The trial court suggested that it answer that the jury could return a guilty verdict if it found the cause of death was “[a]ny one or combination of the three.” T5 at 763. The trial court asked defense counsel if he was “okay with that?” T5 at 763. Defense counsel responded, “that’s fine.” T5 at 763. The jury found the defendant guilty of negligent homicide, reckless conduct, and child endangerment. T5 at 768.

The defendant contends that the trial court’s answer to the jury’s question was plainly erroneous because “[t]he answer permitted a guilty verdict based on urosepsis as the sole cause of death, but the court had dismissed the negligent homicide indictment grounded solely on urosepsis as the cause.” Def. Br. at 15-16. However, the trial court’s answer was induced by the defendant, and this Court should invoke the invited error doctrine and refuse to consider the defendant’s claim the answer was plainly erroneous. Regardless, this argument is not persuasive. The trial court erroneously granted the motion to dismiss the urosepsis indictment mid-trial. It was not required to replicate that error through its answer to the jury’s question. Dr. James’s testimony sufficiently established that, but for urosepsis, K.C. would not have died. The trial court therefore correctly answered the jury’s question. But even if there was any doubt about whether urosepsis alone could have caused K.C.’s death, the defendant still could not show plain error. The defendant has not cited to any precedent showing the trial court’s answer was an obvious error under existing law. The cause of K.C.’s death also was not an element of negligent homicide. Further, there is no reason to suspect that any juror relied on urosepsis as the sole cause of K.C.’s death given the undisputed evidence that that K.C. was dehydrated with abnormally high sodium levels.

There is no merit to the argument that the State introduced insufficient evidence that the defendant’s negligence caused K.C.’s death. There was an abundance of proof that K.C.’s anemia and her UTI, which progressed to urosepsis, were caused by the defendant’s neglect of her hygiene and medical care. The State also introduced a myriad of evidence showing that the defendant should have known that K.C. needed medical assistance as these conditions worsened but neglected to obtain it for her. The defendant’s ineffective assistance of counsel claim is more appropriately raised on collateral review. It also fails on the merits. Trial counsel’s decision not to object to the trial court’s answer to the jury’s question was not constitutionally deficient performance or prejudicial because the trial evidence showed that, absent urosepsis, K.C. would not have died.

“Under the invited error doctrine, a party may not avail himself of error into which he has led the trial court, intentionally or unintentionally.” State v. Goodale, 144 N.H. 224, 227 (1999) (internal quotations omitted). The doctrine is designed to deter “a party from inducing an erroneous ruling and later seeking to profit from the legal consequences by having the verdict vacated.” State v. Richard, 160 N.H. 780, 785 (2010) (quoting United States v. Barrow, 118 F.3d 482, 490 (6th Cir. 1997)). Otherwise, a court would “place a premium on agreeable acquiescence to perceivable error as a weapon of appellate advocacy.” Merchant v. Ruhle, 740 F.2d 86, 92 (1st Cir. 1984). The invited error doctrine does not necessarily preclude plain error review because doing so “removes any discretionary remedy from the appellate court’s panoply of options[.]” Richard, 160 N.H. at 788. The jury asked, “Does the cause of death have to be urosepsis, dehydration, and/or an electrolyte imbalance, all three, or any of the three?” T5 at 761. The trial court then discussed with counsel for both parties the proper answer to this question. T5 at 761-62. Although defense counsel initially suggested that the trial court should answer the jury that it could return a guilty verdict if the cause of death was “all or any combination” of urosepsis, dehydration, and an electrolyte imbalance, he then stated that it “could be one.” T5 at 762-63.

In other words, trial counsel expressly recommended that the trial court do what the defendant now claims on appeal was plainly erroneous: instructing the jury that it could find that K.C. succumbed to urosepsis alone. Defense counsel then eliminated any reason to suspect the trial court’s proposed response would become an issue on appeal by stating he was “fine” with the answer. T5 at 763. The defendant is attempting to appeal an alleged error that he not only induced, but agreed to and is now converting his “agreeable acquiescence to perceivable error as a weapon of appellate advocacy.” Merchant, 740 F.2d at 92. Accordingly, the invited error doctrine applies to this argument.

Although this Court could review this argument for plain error, the more prudent course of action would be for the Court to decline to exercise this discretion. The defendant could have stayed his appeal to argue before the trial court in his motion for a new trial that defense counsel’s proposed answer to the jury’s question amounted to ineffective assistance. State v. Thompson, 161 N.H. 507, 527 (2011). This would have given the trial court an opportunity to address the issue in the first instance. Although it is unclear why the defendant did not do so, despite having different counsel on appeal, he can still raise this issue in the trial court through a petition for a writ of habeas corpus. Id. Subsequent appellate review could then be obtained later if it is required. This mode of operating ensures this Court’s role remains one principally of review, not of first view. Cf. Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005) Further, the defendant’s argument that the trial court plainly erred depends on his assertion that K.C. could not have succumbed to urosepsis alone. As explain in Part II, subpart a of this brief, that is an erroneous argument because the State did produce sufficient proof that absent urosepsis, K.C. would not have died. At the very least, providing the trial court with the opportunity to address this claim with the benefit of further briefing would ensure the matter is resolved without any possible issues being overlooked or trial evidence being misconstrued or misinterpreted. The defendant should not be permitted to invite an error, decline his option to raise the issue through an ineffective assistance claim in the Superior Court, and then insist the issue be litigated on appeal for the first time. This Court should hold that the error alleged in the trial court’s answer to the jury’s question was invited by the defendant, decline to review for plain error, and instruct the defendant that he can seek relief by filing a petition for writ of habeas corpus in the Superior Court alleging trial counsel provided ineffective assistance in this regard.

“The response to a jury question is left to the sound discretion of the trial court.” State v. Poole, 150 N.H. 299, 301 (2003). “To show that the trial court’s decision is not sustainable, the defendant must demonstrate that the court’s ruling was clearly untenable or unreasonable to the prejudice of his case.” State v. Lambert, 147 N.H. 295, 296 (2001). Additionally, the trial court’s answer to a jury’s question “must be evaluated in the context of the entire charge and all of the evidence.” State v. Hammell, 139 N.H. 404, 406 (1995). The defendant concedes he did not preserve his argument that the trial court’s answer to the jury’s question was erroneous and requests the Court review for plain error. Def. Br. at 16.

The plain error rule allows the Court to exercise its discretion to correct errors not raised before the trial court. State v. Mueller, 166 N.H. 65, 68 (2014). For an appellate court to find plain error: “(1) there must be error; (2) the error must be plain; and (3) the error must affect substantial rights[.]” Id. A “plain” error is synonymous with “clear” or “obvious.” State v. Lopez, 156 N.H. 416, 424 (2007). “Generally, when the law is not clear at the time of trial, and remains unsettled at the time of appeal, a decision by the trial court cannot be plain error.” Id. Even when all three criteria are met reversal is appropriate only if a fourth criteria is satisfied: the error “must seriously affect the fairness, integrity or public reputation of judicial proceedings.” Id. at 423. This rule is used sparingly, however, and is “limited to those circumstances in which a miscarriage of justice would otherwise result.” Id.

diagnosis of “probable urosepsis, ” T5 at 613, without considering that Dr. James stated that urosepsis caused the dehydration and that she was “certain” of her diagnosis even though the criteria for SIRS could not be met because the toddler was dead. T3 at 332, 421. Further, Dr. James’s testimony was not that urosepsis did not cause K.C.’s death. Dr. James testified that the cause of death was “probable urosepsis with dehydration” or UTI in “conjunction with other factors.” T3 at 371, 421. But this was testimony opining that K.C.’s other conditions would not have occurred absent urosepsis. As she explained, the UTI was both the cause of the urosepsis and a factor that contributed to K.C.’s dehydration, which would have weakened her and created a potentially fatal electrolyte imbalance. T3 at 335-37, 346-50. Testimony explaining that K.C. succumbed after experiencing multiple ailments that were all caused by the UTI does not compel the conclusion that K.C. would have survived urosepsis but for dehydration or electrolyte imbalance. Indeed, Dr. James agreed with defense counsel’s characterization of sepsis as “very deadly.” T4 at 378. Dr. James’s testimony, considered in total and in proper context, could have allowed a jury to conclude that, absent urosepsis, the toddler would not have died.

The trial court compounded its error by waiting to hear the motion to dismiss until Dr. Andrew criticized Dr. James’s diagnosis of “probable sepsis, ” as akin to “probable pregnant.” T4 at 593. Although the trial court stated that it would not be influenced by Dr. Andrew’s dismissive view of Dr. James’s testimony, T4 at 611, its decision might have been different had it heard Dr. Andrew admit that he was not familiar with the SIRS standards because he was not a clinician. That admission may have affected the trial court’s later decision regarding the jury instructions. Regardless, Dr. James’s testimony allowed a jury to conclude that, absent urosepsis, K.C. would not have died. Thus, the first negligent homicide indictment should not have been dismissed, and the trial court correctly instructed the jury that it could find the defendant guilty of negligent homicide if it found that the defendant’s negligence resulted in K.C. succumbing to “any one of the three [urosepsis, dehydration, or electrolyte imbalance] or any combination of the three.” There was no error in the trial court’s answer to the jury’s question, let alone one rising to an unsustainable exercise of discretion.

Even if it was debatable whether there was sufficient evidence that urosepsis alone could have caused K.C.’s death, the evidence did not tilt so heavily in the defendant’s favor that the trial court’s answer amounted to a “clear” or “obvious” error. Further, the defendant is not arguing on appeal that the jury instruction itself was erroneous or that the trial court’s answer did not accurately explain the law or the instruction. Instead, he argues the answer was erroneous in light of the trial court’s decision to dismiss the earlier negligent homicide charge. Def. Br. at 16-17. The defendant does not cite any authority holding that a trial court’s answer to a jury question must be consistent with the reasoning expressed in an order dismissing a different charge. Indeed, if the dismissal decision itself was erroneous, no law exist compelling the trial court to replicate the same erroneous decision. Accordingly, the trial court did not act in conflict with law that was “clear at the time of the trial” and its answer to the jury’s question “cannot be plain error.” Lopez, 156 N.H. at 424.

The defendant contends that neither urosepsis, dehydration, nor an electrolyte imbalance could have caused death on their own. Def. Br. at 22 n.5. Therefore, he argues that the trial court’s answer to the jury’s question affected his substantial rights by making it possible that the jury did not unanimously agree that K.C. died from some combination of urosepsis, dehydration, and an electrolyte imbalance. Def. Br. at 21-22. This argument fails because the State did not have to prove K.C.’s cause of death. “[W]hile 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 proven at trial[.]” State v. French, 146 N.H. 97, 101 (2001) (internal citations omitted). The elements for negligent homicide are simply that the defendant (1) caused the death of another person; and (2) acted negligently. RSA 630:3; State v. Sanborn, 168 N.H. 400, 418 (2015). But for a homicide, “the State need not prove an exact time of death, nor the medically precise cause of death[.]” State v. Thresher, 122 N.H. 63, 70 (1982) (citations omitted). The indictment does not need to state “the exact cause of death provided that all the elements of the crime charged are alleged with sufficient specificity that the defendant can prepare his defense[.]” Id. (internal citation omitted). Thus, the language in the indictment alleging that K.C. succumbed to “urosepsis, dehydration, and/or electrolyte imbalance” was necessary, if at all, only to ensure the defendant could prepare a defense. Thresher, 122 N.H. at 70. It was not an element the jury had to agree the State had proven beyond a reasonable doubt. Because the State did not have to prove the medically precise cause of death, an instruction about the combination of conditions that caused K.C.’s death could not have impacted the defendant’s substantial rights.

The defendant contends the final criteria of the plain error standard is satisfied because of the “very real prospect... that at least one juror relied on urosepsis as the sole cause of death.” Def. Br. at 22. However, the defendant’s own expert testified that he had no doubt that K.C. was dehydrated, with sodium levels that were abnormally high and potentially fatal. T4 at 658-660. Although Dr. Andrew initially testified that he did not believe K.C.’s dehydration was severe enough to contribute to her death, he acknowledged on cross-examination that both dehydration and electrolyte imbalances stress the body and can contribute to a fatality. T4 at 658-661. In other words, there was no dispute that K.C. was dehydrated with abnormally high sodium levels, which, even if non-fatal, would have weakened her and made her more susceptible to succumbing to urosepsis. Defense counsel acknowledged during closing argument that the State’s theory was that “the three things worked together.” T5 at 696. Although defense counsel attacked the severity, he conceded in his closing that K.C. was dehydrated and had an electrolyte imbalance and opined that “when you come down to it, everything in this case hinges on urosepsis.” T5 at 697. The State’s closing also characterized the trial evidence as “a case of profound neglect ultimately resulting in the death of [K.C.] by some combination of urosepsis, dehydration, and an electrolyte imbalance.” T5 at 721.

Even if there was not sufficient evidence that urosepsis could have caused death without dehydration or an electrolyte imbalance, a finding that it was the sole cause of K.C.’s death would have been inconsistent with all the trial evidence and highly unlikely. There was not a “very real prospect” that the jury relied on urosepsis as the sole cause of death. Accordingly, the defendant cannot show a “miscarriage of justice” affecting the fairness, integrity, or reputation of his trial. Lopez, 156 N.H. at 424.

A challenge to the sufficiency of the evidence raises a claim of legal error that is reviewed de novo. State v. Collins, 166 N.H. 514, 517 (2014). However, “the defendant has the burden to demonstrate that no rational trier of fact, viewing the evidence in the light most favorable to the State, could have found guilt beyond a reasonable doubt.” State v. McCue, 134 N.H. 94, 104 (1991). When reviewing the sufficiency of the evidence, each evidentiary item must be examined “in the context of all the evidence, not in isolation.” State v. Young, 159 N.H. 332, 338 (2009). A person is guilty of negligent homicide “when he causes the death of another negligently.” RSA 630:3, I. “A person acts negligently with respect to a material element of an offense when he fails to become aware of 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 his failure to become aware of it constitutes a gross deviation from the conduct that a reasonable person would observe in the situation.” RSA 626:2, II(d).

“The carelessness required for criminal negligence is appreciably more serious than that for ordinary civil negligence, and must be such that its seriousness would be apparent to anyone who shares the community’s general sense of right and wrong.” State v. Dion, 164 N.H. 544, 549 (2013) (internal punctuation omitted). Causation for negligent homicide is established when the State proves “not only that the prohibited result would not have occurred but for the conduct of the defendant, but also that the defendant’s conduct was the legal (or proximate) cause of the prohibited result.” State v. Sanborn, 168 N.H. 400, 412 (2015). The indictments alleged that the defendant’s criminal negligence caused K.C. to succumb to urosepsis, dehydration, and/or an electrolyte imbalance. It was undisputed that K.C. was suffering from dehydration and electrolyte imbalance, and Dr. James was “certain” she had urosepsis. T3 at 349-50, 421, T5 at 658-69. Although Dr. James’s autopsy could not satisfy the SIRS criteria, evidence K.C. was experiencing these symptoms— elevated respiration, low blood pressure, fever, and elevated white blood cell count—was provided by the defendant’s family’s testimony. The defendant’s younger brother testified that K.C. appeared “sluggish, ” which was consistent with low blood pressure, T4 at 595, and her breathing was “rapid.” T1 at 64-69. The defendant’s grandfather testified K.C. was vomiting and had a virus before her death, T2 at 129, which supported a reasonable inference that she was experiencing fever and her white blood cell count was elevated.

There was also sufficient evidence that the defendant’s criminal negligence caused K.C. to develop and succumb to these conditions. The trial evidence showed that K.C. became anemic due to a severe lice infestation and died from the effects of a UTI that progressed to urosepsis. The State introduced an abundance of proof that the defendant’s negligence caused K.C. to develop these conditions.

Dr. James testified that poor hygiene could lead to a UTI. T4 at 346. The evidence of the defendant’s neglect of K.C.’s hygiene was immense. The room where they slept was full of flies, open containers of milk and food, and had an odor that was worse than anything Officer Lewis had ever smelled. T1 at 101-03, T2 at 221. Dr. Oral testified that keeping K.C. hygienic was within the ability of even an “unsophisticated parent.” T4 at 487. Nevertheless, she was found covered in lice and with a “brown substance” in her ears and the folds of her neck. T2 at 236-40. Even if poor hygiene did not cause the initial lice infestation, this condition could have been treated by twice applying a particular shampoo. T4 at 534. This was a treatment “anybody [could] accomplish.” T4 at 478. Instead, the defendant allowed K.C.’s lice infestation to become so “extreme, ” T2 at 240, that she became anemic from the number of lice feasting on her blood. T3 at 342-44.

Thus, K.C.’s anemia and UTI can be traced directly to the defendant’s neglect of her lice infestation and hygiene. Caring for both was well within the ability of an ordinary person. This was more than sufficient evidence that the defendant’s neglect of K.C. was “appreciably more serious” than ordinary civil negligence and led to her developing the condition or combination of conditions that caused her death. Further, the trial evidence showed that the defendant should have known that K.C. needed medical assistance as these conditions worsened but neglected to do so. When K.C. was treated for lice, the defendant and Mikayla were advised to contact their doctor if live lice were seen after applying the shampoo or if K.C. did not get better as expected. T4 at 536- 37. There was no evidence further medical assistance was sought, even as K.C.’s lice infestation became extreme. The defendant was also warned of the possibility of a UTI and instructed to contact a nephrology clinic if K.C. experienced fever, vomiting or a change in urine color. T4 at 480-81. However, the defendant never sought this assistance for his daughter even though she was vomiting, breathing rapidly, and experiencing a change in urine color in the days preceding her death. T1 at 68-69, 129, T4 at 489. These conditions should have been readily apparent to the defendant because Dr. Oral testified that K.C.’s change in urine color would have occurred gradually and that a child suffering from a UTI would cry excessively. T4 at 489. Further, K.C.’s declining health was apparent to other family members residing at the same house. The defendant’s brother noticed K.C.’s rapid breathing and expressed concerns about her health directly to the defendant. T1 at 69. The defendant’s grandfather also noticed that K.C. was sick and offered to take her to the hospital. T1 at 154-55. Still, the defendant contends that “the circumstances were not such that Cummings, or anyone else, would have perceived K.C. was about to die if she did not receive emergency care.” Def. Br. at 29. The State was not required to prove the defendant should have known K.C. was about to die, only that he should have been aware that his conduct caused a substantial and unjustifiable risk. RSA 626:2, II(d); RSA 630:3. In this case, the defendant neglected a helpless, medically at-risk child’s hygiene to the point that she became covered in lice and a brown substance; refused to apply the simple treatments her doctors recommended; and failed to seek medical treatment as she cried excessively and developed the very symptoms warned of by her medical providers and observed by her family members. This is the type of negligence that “would be apparent to anyone who shares the community’s general sense of right and wrong.” Dion, 164 N.H. 548-49. The defendant’s conviction for negligent homicide should therefore be affirmed.

In New Hampshire, there is a “strong preference for collateral review of ineffectiveness claims, ” but “in the extraordinary case where the factual basis of the claim appears indisputably on the trial record, direct appellate review is permissible.” State v. Thompson, 161 N.H. 507, 527 (2011) (internal citations omitted). “Examples include the failure to object to an instruction... where the failure is outside the range of reasonable professional judgment and its prejudicial effect is clear.” Id. at 526-27. The defendant is arguing that his trial counsel was constitutionally deficient for failing to object to an answer to a jury question that was allegedly inconsistent with the reasoning behind a ruling dismissing a different charge. But the trial court’s dismissal of that charge was erroneous, and, as explained in Part I of this brief, is an argument that is best raised in a petition for a writ of habeas corpus. The answer to the jury’s question was also given after the defendant had put on his case, which changed the analysis regarding whether there was sufficient proof, based on both sides’ evidence, that urosepsis could have been the sole cause of death. Defense counsel also reviewed and agreed with the trial court’s proposed response to the jury. Defense counsel may have had a strategic reason for accepting this answer, which cannot be explored on direct appeal. Given the novelty of the claim, and the myriad of evidence showing that urosepsis alone could have caused K.C.’s death, this is not a case in which it is “clear” that trial counsel’s performance was both constitutionally deficient and prejudicial. Accordingly, the defendant’s ineffective assistance of counsel claim should not be reviewed on direct appeal.

“To prevail upon a claim of ineffective assistance of counsel, the defendant must demonstrate, first, that counsel’s representation was constitutionally deficient and, second, that counsel’s deficient performance actually prejudiced the outcome of the case.” State v. Marden, 172 N.H. 258, 262 (2019). To show deficient performance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. Id. This requires errors so “egregious” that counsel “failed to function as the counsel the State Constitution guarantees.” Id. Review of counsel’s performance is highly deferential, and the defendant must overcome the presumption that counsel’s actions were a part of a reasonable trial strategy. Id. at 262-63. “Accordingly, a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 263. Further, “[f]ailing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel.” State v. Cable, 168 N.H. 673, 685 (2016). “To satisfy the second prong, the defendant must demonstrate actual prejudice by showing that there is a reasonable probability that the result of the proceeding would have been different had competent legal representation been provided.” Marden, 172 N.H. at 263. This is a probability “sufficient to undermine confidence in the outcome” when considering “the totality of the evidence presented at trial.” Id. If the defendant cannot show prejudice, the Court does not need to consider the performance prong. State v. Collins, 166 N.H. 210, 212 (2014). As previously explained in this brief, the State’s evidence did not compel the conclusion that K.C. would not have succumb to urosepsis but for her dehydration or electrolyte imbalance. But even if it did, the defendant’s decision not to object to the trial court’s answer to the jury’s question must be analyzed in the context of the whole trial. The trial court dismissed the earlier negligent homicide charge because it recalled Dr. James’s testimony on the cause of death as opining that “she couldn’t say it [sic] just urosepsis.” T4 at 613. The trial court stated that the testimony it had already heard from Dr. Andrew would not influence its decision on the defendant’s motion to dismiss. T4 at 611. However, Dr. Andrew explained that “ultimately” in the “late stage of sepsis” a person’s “blood pressure drops below a threshold that can support life... and they die of sepsis.” T4 at 595.

This testimony from Dr. Andrew precluded any argument that K.C.’s urosepsis could not have progressed to the point that it became fatal. As a result, there were no meritorious grounds to object to the trial court instructing the jury that it could return a guilty verdict if K.C.’s death was caused by “any one” or “any combination” of urosepsis, dehydration, or an electrolyte imbalance because “even though the defendant is not required to present a case, if he chooses to do so, he takes the chance that evidence presented in his case may assist in proving the State’s case.” State v. Pittera, 139 N.H. 257, 260 (1994). Under these circumstances, trial counsel’s decision not to object to the trial court’s answer to the jury’s question was not constitutionally deficient performance. Even if trial counsel did provide ineffective assistance, a finding that K.C.’s undisputed dehydration and electrolyte imbalance had no effect on when she succumbed to urosepsis would have been contrary to the evidence, as explained in Part II, subpart d of this brief. Thus, even if the jury had been instructed that urosepsis alone could not have caused K.C.’s death, there is not a reasonable probability that the result of the defendant’s trial would have been different.

For the foregoing reasons, the State respectfully requests that this Honorable Court affirm the judgment below.

The State requests a 15-minute oral argument.

I, Robert L. Baldridge, hereby certify that pursuant to Rule 16(11) of the New Hampshire Supreme Court Rules, this brief contains approximately 8, 800 words. Counsel relied upon the word count of the computer program used to prepare this brief.

October 18, 2024 /s/ Robert L. Baldridge Robert L. Baldridge

I, Robert L. Baldridge, hereby certify that a copy of the State’s brief shall be served on, counsel for the defendant, through the New Hampshire Supreme Court’s electronic filing system.

October 18, 2024 /s/ Robert L. Baldridge Robert L. Baldridge