State of New Hampshire v. Michael A. DeLong ( 2018 )

THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2018-0059, State of New Hampshire v. Michael
A. DeLong, the court on October 17, 2018, issued the following
order:
Having considered the defendant’s brief, the State’s memorandum of law,
and the record submitted on appeal, we conclude that oral argument is
unnecessary in this case. See Sup. Ct. R. 18(1). We affirm.
The defendant, Michael A. DeLong, appeals his conviction, following a
trial in the Circuit Court (Ryan, J.), on a charge of negligent driving. See RSA
265:79-b (Supp. 2017). We construe his brief to argue that the trial court
erred because the conviction was unsupported by the evidence and based upon
hearsay.
To prevail on a challenge to the sufficiency of the evidence, the defendant
must demonstrate that no rational trier of fact, viewing all the evidence and all
reasonable inferences from it in the light most favorable to the State, could
have found him guilty beyond a reasonable doubt. State v. Ducharme, 167
N.H. 606, 616-17 (2015). We examine each item of evidence in the context of
all the evidence, and not in isolation. Id. at 617. In resolving a challenge to
the sufficiency of evidence, we are mindful that credibility determinations are
within the exclusive province of the trier of fact. See State v. Carr, 167 N.H.
264, 275 (2015). The trial court is free to accept or reject any portion of a
witness’s testimony. See id.; State v. Dodds, 159 N.H. 239, 247 (2009) (trier of
fact is in best position to measure persuasiveness and credibility of evidence
and is not required to believe even uncontested evidence).
To convict the defendant of negligent driving, the State was required to
prove that he drove “a vehicle [upon any way] negligently . . . as defined in RSA
626:2, II(d), or in a manner that endanger[ed] or [was] likely to endanger any
person or property.” RSA 265:79-b.
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) (2016). Criminal negligence requires some serious
blameworthiness in the defendant’s conduct that caused the substantial and
unjustifiable risk. State v. Shepard, 158 N.H. 743, 746 (2009). Whether a
defendant has acted negligently does not depend on any actual harm that
resulted from the defendant’s conduct. State v. Belleville, 166 N.H. 58, 63
(2014) (addressing criminal recklessness).
In this case, the State introduced evidence that on August 4, 2017, at
approximately 10:57 in the morning, the defendant “tailgated” another driver
on a “windy” and “hilly” residential street. The speed limit on that street is
thirty-five miles per hour, and children often play and ride bicycles on it. The
defendant then crossed a solid double yellow line and passed the other driver
at an excessive speed, yelling an obscenity at the other driver as he passed
him. Both the other driver and the police officer who investigated the incident
testified, without objection, that a third party witnessed the incident and
motioned at the defendant to slow down. The officer further testified that
passing a car on a double yellow line in that area is “extremely unsafe.”
Although the officer did not witness the incident, and although the defendant
disputed the testimony of the other driver and of the officer and offered a
conflicting explanation of the incident, the trial court was free to credit the
testimony of the other driver and the officer, and to reject the defendant’s
testimony. Viewing the evidence in the light most favorable to the State, we
conclude that a rational trier of fact could have found, beyond a reasonable
doubt, that the defendant drove his vehicle negligently upon a way.
Any remaining argument in the defendant’s brief either was not raised at
trial, or is not sufficiently developed to warrant further discussion. See State v.
Blackmer, 149 N.H. 47, 48-49 (2003).
Affirmed.
Lynn, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.
Eileen Fox,
Clerk
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