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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough

- northern judicial district

Case No. 2022

- 0616

Citation: State v. Van Uden

, 2024 N.H. 4 7

THE STATE OF NEW HAMPSHIRE

v.

THOMAS VAN UDEN

Argued: November 29, 2023

Opinion Issued: August 29, 2024

John M. Formella

, attorney general, and Anthony J. Galdieri

, solicitor

general ( Audriana Mekula

, assistant attorney general, on the brief and orally),

for the State.

Pamela E. Phelan

, senior assistant appellate defender, of Concord, on the

brief and orally, for the defendant.

M AC DONALD

, C.J.

[¶1] The defendant, Thomas Van Uden, appeals his convictions following

a jury trial in Superior Court ( Messer

, J.) on five counts of reckless conduct

with a deadly weapon, see RSA 631:3, I, II (2016 & Supp. 2023); RSA 625:11, V2

(2016). He argues that the trial court erred when it: (1) admitted testimony

from lay witnesses about his alleged opioid use; (2) allowed the State to use

evidence of his purported opioid use for an improper purpose during its closing

argument; and (3) denied his motion to merge the five reckless conduct charges

into one charge for sentencing. We affirm in part, reverse in part, and remand.

I. Background

[¶2] The jury could have found the following facts. During the afternoon

of August 2, 2021, the defendant drove through a red light at a high rate of

speed at a Manchester intersection. As he tried to drive in between two lanes

of vehicles, he hit three vehicles. One vehicle was hit so hard that it was

pushed into the center of the intersection. After striking the vehicles, the

defendant’s car went through the intersection. T he defendant then “yanked”

his steering wheel, his car hit the median, and flipped over in the air, landing

on top of another vehicle which was stopped on the opposite side of the

intersection. That vehicle then slid into the vehicle next to it. The defendant’s

vehicle landed on its side and rolled onto its roof. The cars hit by the

defendant were damaged; some were total losses

.

[¶3] A paramedic arrived at the scene to find the defendant, who had

been partially ejected from his car, unconscious. She began treating the

defendant and observed that he was pale, sweaty, and cool to the touch. She

also observed that the defendant’s pupils were pinpointed, and she

administered 0.5 grams of Narcan intravenously.

[¶4] The defendant was transported to the hospital by ambulance. A

Manchester police officer who spoke with the defendant at the hospital testified

at trial that while they spoke, the defendant used “[m]ostly one

- word answers,”

was lethargic, and had slurred speech. The officer also observed that the

defendant’s pupils were pinpointed, which the officer said he understood,

based on his training and experience, to be a side effect of being under the

influence of opioids.

[¶5] The defendant was charged with one count of second degree assault

with serious bodily injury, seven counts of reckless conduct with a deadly

weapon, one count of driving under the influence of drugs or alcohol, and one

count of disobeying a police officer. Prior to trial, the defendant moved to

exclude testimony from two witnesses. The defendant argued that the

testimony of the paramedic and of one of the victims regarding their

observations of signs or symptoms of overdose was inadmissible expert

testimony. The trial court denied the motion, ruling that “as long as the

witnesses are both able to lay a 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 could testify on

these issues.3

[¶6] Five victims testified at trial. The State also introduced into

evidence, and played for the jury, a video of the incident that had been

captured by a home surveillance camera located on an apartment building at

the intersection. In addition, t he State presented testimony from the police

officer who spoke with the defendant at the hospital and from the paramedic

who treated him at the accident scene regarding their observations of the

defendant.

[¶7] At the close of the State’s case, the defendant moved to dismiss all of

the charges. The trial court dismissed two of the reckless conduct charges,

and dismissed the driving under the influence of drugs or alcohol charge and

the second degree assault charge after finding that the State had not presented

any evidence that an opioid is a controlled drug.

[¶8] The defendant then requested that the trial court instruct the State

not to refer in its closing argument to the administration of Narcan because the

two charges referencing the defendant’s use of a controlled drug had been

dismissed. The State objected, arguing that the testimony was relevant to the

remaining reckless conduct 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

. . . consciously chose to drive down a public way.” The

trial court ruled that the State would be permitted to mention Narcan in its

closing argument, because it was relevant to the remaining charges given that

it was “intrinsically involved in what was happening at that time.” The trial

court also ruled that the State could refer in closing to the paramedic’s

testimony that she observed the defendant’s pinpoint pupils, and her

explanation of why she administered Narcan. The State referenced the

administration of Narcan and the paramedic’s testimony about pinpoint pupils

in its closing argument.

[¶9] The jury convicted the defendant on five counts of reckless conduct,

and found him not guilty of disobeying a police officer. The defendant moved to

merge the five reckless conduct convictions for sentencing

, arguing that all five

charges stemmed from one criminal course of conduct. The trial court denied

the defendant’s motion, and thereafter, at a hearing, imposed five separate

sentences. This appeal followed.

II. Analysis

a. Lay Witness Testimony

[¶10] The defendant first argues that the trial court erred by admitting

testimony from lay witnesses about alleged opioid use. The State disputes that

the trial court erred in admitting this testimony, but argues that even if the

trial court erred, any error was harmless beyond a reasonable doubt. For the4

purposes of this appeal, we need not determine whether the trial court erred,

because we conclude that any error was harmless beyond a reasonable doubt.

See State v. Cooper

, 168 N.H. 161, 165 (2015); State v. Ramsey

, 166 N.H. 45,

47 (2014).

[¶11] To establish harmless error, the State must prove beyond a

reasonable doubt that the error did not affect the verdict. State v. Rouleau

, 176 N.H. 400, 407 (2024), 2024 N.H. 2, ¶20. To determine whether the

erroneous admission of evidence affected the verdict, we consider the

alternative evidence presented as well as the character of the erroneously

admitted evidence, and evaluate the totality of the circumstances at trial. Id

. The factors we consider in assessing whether an error did not affect the verdict

include, but are not limited to: (1) the strength of the State’s case; (2) whether

the admitted or excluded evidence is cumulative or inconsequential in relation

to the strength of 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

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 of an

overwhelming nature. Id

. at 407

- 08, 2024 N.H. 2, ¶21. No one factor is

dispositive. Id

. at 408, 2024 N.H. 2, ¶21. We may consider factors not listed

above, and not all factors may be implicated in a given case. Id

.

[¶12] To convict the defendant of felony reckless conduct as charged in

each of the indictments, the State had to prove, as to each victim: (1) that the

defendant recklessly engaged in conduct that placed or may have placed

another person in danger of serious bodily injury by driving his motor vehicle

at a high rate of speed, striking the victim’s motor vehicle (or, with respect to

one of the victims, striking a vehicle which then struck that victim’s vehicle);

and (2) that by using his motor vehicle in such a way, it constituted a deadly

weapon. See RSA 631:3, I, II; RSA 625:11, V. To prove that the defendant

acted with “reckless” mens rea

, the State was required to prove that the

defendant was “aware of and consciously disregard[ed] a substantial and

unjustifiable risk” that serious bodily injury “w[ould] result from his conduct.”

RSA 626:2, II(c) (2016); see RSA 631:3, I. “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.” RSA 626:2, II(c). Because determining the

defendant’s awareness is a subjective inquiry, it may be proved by any surrounding facts or circumstances. See State v. Carnevale

, 172 N.H. 700, 704

(2019).

[¶13] The evidence of the defendant’s reckless conduct in this case is

overwhelming. One witness testified that as the defendant approached the

intersection, he tried to drive between two rows of vehicles. Other witnesses5

described the defendant’s high rate of speed as he approached the intersection

and the force with which he hit multiple vehicles. The State also introduced a

video of the vehicle driven by the defendant hitting the victims’ vehicles when

they were stopped at a red light. The defendant did not request that the video

be transferred to this court. See Bean v. Red Oak Prop. Mgmt.

, 151 N.H. 248,

250 (2004) (stating that appealing party bears burden of providing a record on

appeal sufficient to decide the questions raised, and that relevant portions of

the evidentiary record not provided on appeal are presumed to support the

result reached by the trial court). The parties agree that the video depicts the

defendant’s car entering the intersection, striking several cars

, and flipping

over. Even without testimony from the paramedic and the police officer about

alleged opioid use, the evidence was overwhelming that the defendant was

aware that driving his car at a high rate of speed into an intersection filled with

cars stopped at a red light would pose a substantial and unjustifiable risk to

the occupants of those vehicles, and that disregarding that risk was a gross

deviation from what a law

- abiding person would do under the circumstances.

See Carnevale

, 172 N.H. at 704; RSA 626:2, II(c). The admitted testimony was

neither lengthy nor inflammatory, and, given the overwhelming evidence of the

defendant’s guilt, was inconsequential.

b. Closing Argument

[¶14] The defendant next argues that the trial court erred when it

permitted the State to refer in its closing argument to evidence that the

defendant was under the influence of opioids. He contends that allowing the

State to refer to this evidence in its closing argument “invited an impermissible

amendment of the indictments.” However, defense counsel argued before the

trial court only that any reference to opioid use was not relevant. Because the

defendant did not make the argument in the trial court that he advances on

appeal, the argument is not preserved for our review, and we decline to address

it. See State v. Gross

- Santos

, 169 N.H. 593, 598 (2017) (explaining that

purpose of preservation rule is to insure that trial court has opportunity to rule

on issues and to correct alleged errors before parties seek appellate review).

c. Unit of Prosecution

[¶1 5 ] Finally, the defendant argues that the trial court erred when it did

not merge the five reckless conduct charges into one charge for sentencing.

See RSA 631:3. He contends that “[t]he gravamen of RSA 631:3 is a

defendant’s reckless conduct, not the number of persons who may be put at

risk as a result of such conduct.” The State disagrees, arguing that “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.”

Therefore, the State contends, the statute authorizes multiple charges of

reckless conduct when multiple individuals are placed in danger of serious

bodily injury by a defendant’s conduct.6

[¶16] Multiple punishment cases come in two varieties : first, “double

description” cases, in which the issue is whether two statutes describe two

separate offenses or are merely different descriptions of the same offense ; and

second

, “unit

- of

- prosecution” cases

, in which the issue is whether a

defendant’s continuing course of conduct is fragmented into more than one

violation of a single statutory provision. See State v. Lynch

, 169 N.H. 689, 706

(2017). Here, to determine whether the defendant is subject to multiple

punishments for the same offense, we must determine the “unit of prosecution”

intended by the legislature. See State v. Ravell

, 155 N.H. 280, 282 (2007); see

also State v. Chalpin

, 17 6 N.H.

___,

___ (2024), 2024 N.H. 36

, ¶ 32 (“To

determine whether a defendant is subject to multiple punishments for the

same offense, in violation of the protection provided by the Federal

Constitution, we must determine the unit of prosecution intended by the

legislature.” (quotation omitted)).

[¶17] “All provisions” of the Criminal Code “shall be construed according to

the fair import of their terms and to promote justice.” RSA 625:3 (2016). In

doing so, we must first look to the plain language of the statute to determine

legislative intent. State v. McKeown

, 159 N.H. 434, 435 (2009). Because the

question before us is one of statutory construction, our review is de

novo

. State v. Fogg

, 170 N.H. 234, 236 (2017).

[¶1 8 ] RSA 631:3, I, provides that “[a] person is guilty of reckless conduct if

he recklessly engages in conduct which places or may place another in danger

of serious bodily injury.” See RSA 631:3, II (reckless conduct classified as class

B felony “if the person uses a deadly weapon as defined in RSA 625:11, V”). As

the defendant correctly contends, the statute focuses on the defendant’s

conduct

, not on the number of persons who are or who may be placed in

danger as a result of that conduct. The unit of prosecution arises from the

defendant’s continuing course of conduct

. The course of conduct is a single

unit of prosecution.

[¶1 9 ] We find support for this decision in State v. Fogg

. The defendant in

Fogg was convicted on two counts of aggravated driving while intoxicated (DWI)

— one count for the injuries sustained by each occupant of the vehicle that the

defendant had hit while driving while intoxicated. Fogg

, 170 N.H. at 235;

see RSA 265

- A:3 (2014) (amended 2020). At issue on appeal was whether the

language of the aggravated DWI statute supported only one charge. Fogg

, 170

N.H. at 235

- 36. We considered the terms and structure of the statute as a

whole, and concluded that “the legislature did not intend the ‘unit of

prosecution’ under subsection I(b) of the statute to turn upon the number of

persons suffering serious bodily injury in a single collision resulting from

operation of a vehicle on a particular occasion.” Id

. at 236

- 37. We explained:7

Our conclusion is based, in large measure, upon the incongruous

outcomes that would result were we to construe the statute in the

manner advocated by the State.

For example, under the State ’ s view,

. . . an intoxicated driver

carrying four high school companions could face four counts of

aggravated DWI, even though he obviously drove the vehicle only

once

. In the absence of a very clear indication to the contrary from

statutory text

— which we do not find in RSA 265

- A:3

— we will

not presume that the legislature intended to impose such harsh

and uneven consequences.

Id

. at 237. Although we acknowledged that, if it disagreed with our

interpretation, the legislature could amend the statute

, see id

., we have seen no

indication in the seven years since we decided Fogg of such disagreement.

[¶ 20 ] Similarly, here, under the State’s view, had there been a driver and

four passengers in each of the cars stopped at the red light when the defendant

recklessly drove his car at a high rate of speed into the intersection, the

defendant could have faced twenty

- five counts of reckless conduct even though

he recklessly drove his car into the intersection only once. By contrast, had

there been but one car with a single driver who was endangered by the

defendant’s reckless conduct, the defendant would have faced but a single

count for the same conduct. In the absence of a clear indication to the

contrary from statutory text

— which we do not find in RSA 631:3

— we will

not presume that the legislature intended to impose such uneven

consequences. See Fogg

, 170 N.H. at 236. Accordingly, we conclude that it

was error for the trial court to deny the defendant’s motion to merge the

charges for sentencing.

[¶ 21 ] Of course, if the legislature disagrees with our construction of this

statute, it is free, within constitutional limits, to amend it as it deems fit. See

id

.

[¶ 22 ] For the above reasons, we affirm the defendant’s conviction on the

reckless conduct charge s but reverse its decision to deny the defendant’s

motion to merge the charges for sentencing, and remand.

Affirmed in part; reversed in

part; and remanded

.

BASSETT and DONOVAN, JJ., concurred ; HANTZ MARCONI, J., sat for

oral argument but did not participate in the final vote.