State of New Hampshire v. Thomas Hauser

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0802, State of New Hampshire v. Thomas
Hauser, the court on October 9, 2015, 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, Thomas Hauser, appeals his conviction following a bench
trial in the Circuit Court (Yazinski, J.) on a charge of driving while under the
influence of alcohol or drugs. See RSA 265-A:2 (2014). He argues that the
evidence was insufficient, under a plain error standard of review, see Sup. Ct.
R. 16-A, to support the trial court’s finding that he was impaired.

At the outset, we note that the defendant, throughout his brief, refers to
the evidence offered by the State to prove his impairment as “circumstantial,”
and argues that the sufficiency standard that applies when the evidence relied
upon to prove an element of the crime is “solely circumstantial,” see, e.g., State
v. Gagne, 165 N.H. 363, 367 (2013), applies in this case. We agree with the
State, however, that the evidence it introduced to prove the defendant’s
impairment, summarized below, was not solely circumstantial. See State v.
Kelley, 159 N.H. 449, 453-54 (2009) (distinguishing circumstantial from direct
evidence of impairment within the context of driving while intoxicated).

We further note that the defendant asserts, without citation to the
record, that an audio recording of his booking, which “was not disclosed . . .
with the State’s discovery, . . . was subsequently obtained and would have”
supported a disputed component of his testimony. He then suggests that the
State may have violated Brady v. Maryland, 373 U.S. 83 (1963) and State v.
Laurie, 139 N.H. 325 (1995), and requests that we remand for a Brady hearing.
The trial record, however, does not support the defendant’s claim that he
“subsequently obtained” an undisclosed audio recording that supported his
testimony. Rather, the only evidence in the record relative to a recording of the
booking procedure establishes that the State produced a video of the
procedure, but that its recording equipment was damaged and did not preserve
any decipherable audio of the event. Because the record does not support the
defendant’s claim that the State withheld exculpatory evidence, we decline his
invitation to speculate on whether there may have been a Brady violation.
 Turning to the merits of the appeal, the defendant argues that the trial
court engaged in plain error by finding, beyond a reasonable doubt, that he
was impaired. The plain error rule “should be used sparingly, its use limited to
those circumstances in which a miscarriage of justice would otherwise result.”
State v. Balch, 167 N.H. 329, 332 (2015). To constitute plain error, there must
first be an error. See id. To prevail on a challenge to the sufficiency of the
evidence, the defendant must establish that no rational trier of fact, after
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. Ducharme, 167 N.H. ___, ___, 116 A.3d 1281, 1290 (2015). In
reviewing the sufficiency of the evidence to convict, we are mindful that the
“common sense evaluation of the credibility of witnesses is within the province
and obligation of the” trier of fact. State v. Young, 159 N.H. 332, 339 (2009)
(quotation, brackets, and ellipsis omitted).

To convict the defendant of driving while under the influence of alcohol
or drugs, the State was required to prove that he drove a vehicle upon any way
while he was under the influence of (1) “intoxicating liquor”; (2) “any controlled
drug, prescription drug, over-the-counter drug, or any other chemical
substance . . . which impairs a person’s ability to drive”; or (3) “any
combination of intoxicating liquor and controlled drugs, prescription drugs,
over-the-counter drugs, or any other chemical substances . . . which impair a
person’s ability to drive.” RSA 265-A:2, I(a). To establish that the defendant
was impaired, the State was required to prove only that he was impaired to any
degree. Ducharme, 167 N.H. at ___, 116 A.3d at 1290.

Viewed most favorably to the State, the evidence establishes that during
the evening of July 10, 2014, the defendant drank one beer and half of a mixed
drink over the course of forty minutes at a bar in Claremont. At that time, the
defendant had been prescribed two separate narcotic analgesic medications to
be taken in three daily doses, and he admitted that he had taken the drugs
earlier that morning. The supervising bartender testified that the defendant
became increasingly loud and incoherent during the time he was there, that
the defendant appeared to be intoxicated, and that he would not have served
the defendant another drink had he asked for one.

The defendant left the bar at approximately 9:50 pm. As he was leaving,
he backed his pickup truck into the car of another patron, causing physical
damage to both his truck and the car he had struck. The defendant did not
immediately stop, however, but continued to exit the parking lot onto an
abutting street. He then decided to return, and began to back up. Two
Claremont police officers first observed the defendant as he was backing up.
The defendant’s truck was in the roadway straddling its double yellow line as

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he was backing up in the officers’ direction; he then stopped the truck in the
opposite lane of traffic, and turned left into the bar’s parking lot. Based upon
their observations, the officers initiated a traffic stop.

During the stop, the defendant’s movements were slow and lethargic, his
speech was slurred, his eyes were bloodshot, and an odor of alcohol emanated
from him. It took the defendant seven-to-ten seconds to answer routine
questions. When one of the officers administered the horizontal gaze
nystagmus test, the defendant exhibited all six standardized clues indicating
that he was impaired. When the officer asked the defendant to rate how
intoxicated he felt on a scale of one to ten, with one representing “complete[ly]
sober” and ten representing “falling down drunk,” the defendant responded,
“two.” Although he had only consumed one-and-a-half alcoholic beverages at
the bar, and testified that he had had no other drinks prior to arriving at the
bar, the defendant told the officers that he had had three drinks that evening.

After the defendant explained that he had physical limitations that would
prevent him from performing any of the other standard field sobriety tests, the
officers called a third officer, who had more advanced training in administering
field sobriety tests, to administer alternate field sobriety testing. The third
officer performed a “Modified Romberg Test,” requiring the defendant to hold
his head back and close his eyes for what he estimated to be thirty seconds.
After ninety seconds had passed and the defendant had still not opened his
eyes, the officer stopped the test. According to the officer, significantly
overestimating the passage of thirty seconds suggests that the person being
tested is under the influence of a depressant or a narcotic analgesic drug.

At this point, all three officers concluded that the defendant was
impaired, and placed him under arrest. While he was being transported to the
police station, the defendant was uncooperative. His uncooperative behavior
continued at the police station, where he refused to take a blood alcohol
concentration test or sign an administrative license suspension form.

Although the defendant disputed much of the officers’ testimony, claimed
that the officers had assaulted and injured him, and testified that he refused to
take a blood test only because the officers refused to transport him to the
hospital by ambulance, the trial judge found that his testimony was “probably
the most fanciful story [that the judge had] heard in [the judge’s] decade and a
half on the bench.” The trial judge was well within his discretion not to believe
the defendant’s testimony. Young, 159 N.H. at 339. Viewing all of the evidence
in the light most favorable to the State, we conclude that a reasonable fact
finder could have found, beyond a reasonable doubt, that the defendant was
impaired to some degree. See, e.g., Kelley, 159 N.H. at 451, 455 (finding
sufficient evidence of impairment where the officer saw the defendant cross
over the double yellow line, the defendant admitted to having consumed
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alcohol, her speech was slurred, her eyes were glassy, she emitted a strong
odor of alcohol, and she performed poorly on field sobriety tests). Accordingly,
there was no error, plain or otherwise, in the defendant’s conviction.

Affirmed.

Dalianis, C.J., and Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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