State v. Shepard

973 A.2d 318, 158 N.H. 743
CourtSupreme Court of New Hampshire
DecidedMay 29, 2009
Docket2008-272
StatusPublished
Cited by9 cases

This text of 973 A.2d 318 (State v. Shepard) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Shepard, 973 A.2d 318, 158 N.H. 743 (N.H. 2009).

Opinions

Dalianis, J.

The defendant, Joshua Shepard, appeals his conviction for three counts of negligent homicide and one count of vehicular assault following a jury trial. See RSA 630:3, I (2007); RSA 265:79-a (2004). He argues that the Superior Court (O’Neill, J.) erred when it denied his motions to dismiss the indictments against him and for judgment notwithstanding the verdict (JNOV). We reverse.

The jury could have found the following facts, viewed in the light most favorable to the State. The defendant’s convictions stem from a 2006 motor vehicle accident that seriously injured him and another motorist and killed three others. The accident happened at approximately noon on the first day of Laconia’s Motorcycle Week, Sunday, June 11, 2006, which was a partly cloudy, relatively warm and comfortable day, with good visibility. The defendant was driving his car eastbound on Route 49 from Interstate 93 to his job in Waterville Valley, a road that he had traveled hundreds of times before. The accident occurred in Thornton, where Route 49 is a narrow, winding two-lane highway populated by residences and businesses. Traffic traveling in the opposite direction included, in order, a car driven by Carleton Vaughan, a motorcycle carrying Gary and Joyce Varden, a motorcycle carrying Rick and Claudia Huffman, and a car containing Christopher and Kristin Caplice. The motorcycles were traveling behind Vaughan’s vehicle in staggered positions with the Varden motorcycle [745]*745positioned closer to the double yellow line and the Huffman motorcycle positioned fifty feet behind the Varden motorcycle, closer to the center of the westbound lane.

Just before the collision, the defendant’s car headed toward the center double yellow line in the direction of Vaughan’s car. Vaughan steered his car to the right to avoid the defendant. The defendant’s car continued across the double yellow line and was a quarter to halfway into the lane of oncoming traffic when it hit the Varden motorcycle in the westbound lane. The Varden motorcycle then collided with the Huffman motorcycle. The Vardens died at the scene. The Huffmans were transported to a hospital where Claudia Huffman later died. Both Rick Huffman and the defendant suffered serious bodily injuries.

At most, the defendant’s car strayed over the yellow line for approximately two seconds before hitting the Varden motorcycle. There was no evidence that the defendant took any evasive action to avoid the motorcycles after he drove into their lane. There was no evidence that any of the vehicles involved were speeding. Nor was there any evidence that the defendant was under the influence of alcohol or drugs at the time.

The grand jury returned three indictments alleging that the defendant negligently caused the death of Gary Varden, Joyce Varden and Claudia Huffman, respectively. The grand jury also returned a fourth indictment alleging that the defendant negligently caused serious bodily injury to Rick Huffman. At the conclusion of the State’s case, the defendant moved unsuccessfully to dismiss the indictments on the ground that the State had failed to prove beyond a reasonable doubt that his conduct was criminally negligent. See RSA 630:3, I; see also State v. Rollins-Ercolino, 149 N.H. 336, 341 (2003) (holding that vehicular assault statute, RSA 265:79-a, requires proof of criminal negligence). After the jury returned guilty verdicts on all charged offenses, the defendant moved for JNOV on the grounds that the evidence was insufficient to support the verdicts and that the verdicts were against the weight of the evidence. The trial court denied the motion on both grounds, and this appeal followed.

The defendant first argues that the trial court erred when it denied his motions to dismiss the indictments at the close of the State’s case and to set aside the jury’s verdict based upon sufficiency of the evidence. He contends that the evidence was insufficient to establish that his conduct was criminally negligent. “Because the defendant chose to present a case after unsuccessfully moving to dismiss, however, the issue on appeal as to both motions is the sufficiency of the evidence and we review the entire trial record to make that determination.” State v. Hull, 149 N.H. 706, 711-12 (2003).

[746]*746To prevail upon his challenge to the sufficiency of the evidence, the defendant must prove that no rational trier of fact, viewing all of the evidence and all reasonable inferences from it in the light most favorable to the State, could have found guilt beyond a reasonable doubt. State v. Evans, 150 N.H. 416, 424 (2003). When the evidence is solely circumstantial, it must exclude all rational conclusions except guilt. Id. Under this standard, however, we still consider the evidence in the light most favorable to the State and examine each evidentiary item in context, not in isolation. Id.

To have convicted the defendant either of negligent homicide or vehicular assault, the jury must have found, beyond a reasonable doubt, that he acted negligently as defined in RSA 626:2, 11(d) (2004). See RSA 630:3,1 (“A person is guilty of a class B felony when he causes the death of another negligently”); Rollins-Ercolino, 149 N.H. at 341. Under RSA 626:2, 11(d), 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.” RSA 626:2, 11(d) specifies that “[t]he 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.” Whether the defendant failed to become aware of a “substantial and unjustifiable risk” is determined by an objective test, not by reference to the defendant’s subjective perception. State v. Ebinger, 135 N.H. 264, 265-66 (1992).

In the instant matter, the risk at issue for the negligent homicide charges is the risk of death, see RSA 630:3, I; the risk at issue for the vehicular assault charge is the risk of serious bodily injury, see RSA 265:79-a. Not every act of carelessness that results in a death or serious bodily injury entails criminal negligence, however, and a person charged with criminal negligence may not be convicted on evidence that establishes only ordinary negligence. See State v. Littlefield, 152 N.H. 331, 350 (2005). “[T]he carelessness required for criminal negligence is appreciably more serious than that for ordinary civil negligence, and ... its seriousness [must] be apparent to anyone who shares the community’s general sense of right and wrong.” Id. at 351 (quotation and ellipsis omitted). Criminal negligence requires not only the failure to perceive a more than ordinary risk, “but also some serious blameworthiness in the conduct that caused it.” Id. (quotation omitted). Accordingly, “unless a defendant has engaged in some blameworthy conduct creating or contributing to a substantial and unjustifiable risk of death [or serious bodily injury],” he has not engaged in criminally negligent conduct. Id. (quotation omitted).

For example, in Littlefield, the bow of the defendant’s thirty-six foot performance boat collided with the stern of a twenty-foot motorboat and [747]*747then the length of the larger boat rode over the smaller boat, killing the smaller boat’s owner. Id. at 333.

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State v. Shepard
973 A.2d 318 (Supreme Court of New Hampshire, 2009)

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Bluebook (online)
973 A.2d 318, 158 N.H. 743, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-shepard-nh-2009.