State v. Remi Gross-Santos

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham
No. 2015-0570

THE STATE OF NEW HAMPSHIRE

v.

REMI GROSS-SANTOS

Argued: October 13, 2016
Opinion Issued: January 31, 2017

Joseph A. Foster, attorney general (Susan P. McGinnis, senior assistant
attorney general, on the brief and orally), for the State.

David M. Rothstein, deputy director public defender, of Concord, on the
brief and orally, for the defendant.

CONBOY, J. The defendant, Remi Gross-Santos, appeals his convictions
on two counts of second degree assault and one charge of transportation of
alcoholic beverages by a minor. See RSA 631:2, I(a) (2016); RSA 265-A:45
(2014). He argues that the Trial Court (Delker, J.) erred in: (1) allowing the
State to introduce evidence that there was a marijuana grinder in the back seat
of his vehicle at the time of the accident (grinder evidence); and (2) ruling that
the police had probable cause to arrest him. We affirm.
 We recite here a summary of the record evidence. We note that the issues
raised by the defendant address two rulings made by the trial court, one after a
suppression hearing and the other at trial. This summary of the evidence is
drawn from the trial record.

The defendant was scheduled to graduate from Portsmouth High School
on June 13, 2014. He made plans with his friends to attend a graduation
party in Ipswich, Massachusetts on June 11. On that day, he met a friend,
(hereinafter “the passenger”), at Portsmouth High School at approximately
9 p.m. The passenger testified that while they waited for another friend to
finish working, they smoked marijuana. They then picked up their friend and
drove to the party. The defendant drank alcohol at the party and went to sleep
at approximately 4 a.m. on June 12. When he woke at 6:30 a.m., he and the
passenger began to drive back to Portsmouth for an early morning graduation
rehearsal. The passenger fell asleep almost immediately and did not wake up
until he heard a loud noise. The defendant told one of the investigating officers
that he “was having trouble staying awake and [was] nodding on and off.”

A motorist driving directly behind the defendant observed the defendant’s
vehicle veer left, cross a lane of traffic, and enter the pedestrian walkway where
it struck and severely injured two women who were walking north in the
walkway. When the passenger asked the defendant what had happened, the
defendant told him that “he hit them.”

Police and medical personnel arrived at the scene of the accident. In the
course of the investigation, the defendant spoke to three police officers. He told
the first officer, Patton, that he was coming from an all-night party in Ipswich.
He then spoke to Lieutenant Gidley and told him that he was driving back from
Seabrook and that he had had two beers around midnight. At Gidley’s
direction, the defendant was arrested for driving under the influence (DUI), see
RSA 265-A:2, I (2014); and Patton then transported him to the hospital for a
blood test.

At the hospital, the defendant was interviewed by Detective Buczek.
Buczek testified that the defendant gave him a chronology of his activities
during the 24-hour period leading up to the accident. As part of the
chronology, the defendant told Buczek that, early in the afternoon before the
party, while at home, he had “smoked some marijuana out of a glass pipe.”
Buczek also testified that the defendant told him that, at the party, he drank
five to seven beers between 10:30 p.m. and approximately 3:30 a.m. on the
morning of the accident. The officers obtained a warrant to search the
defendant’s vehicle, in which they found several items, including a marijuana
grinder.

Prior to trial, the defendant filed a motion to suppress all evidence
derived from his arrest arguing that the police lacked probable cause to arrest

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him. After a hearing, the trial court ruled that the officers had probable cause
to arrest him for violating the per se alcohol concentration limit set forth in
RSA 265-A:2, I(b). The defendant also filed a motion in limine seeking to
prevent the State “from offering any evidence of prior marijuana use” and to
strike the reference to marijuana in the indictments. In a ruling prior to the
commencement of trial, the court stated that “the State would not be able to
introduce evidence of the marijuana consumption as substantive evidence that
the Defendant was impaired by the marijuana and/or alcohol.” The court
found that the defendant’s marijuana consumption was irrelevant to
impairment because there was no evidence that his consumption “hours before
he drove” created a risk that “constitute[d] a gross deviation from the conduct
of a law-abiding person.” (Quotation omitted.)

The court also ruled, however, that the State could introduce evidence of
the defendant’s marijuana consumption “to impeach [his] statement” to the
police. The court reasoned:

I think the credibility of his statement about how much alcohol he
consumed is a very critical issue in this case and how that alcohol
affected him, the fact that he did not disclose the marijuana
consumption is highly probative in my mind of an understanding
that, that is not a favorable fact to his position that he was not
under the influence.

In other words, he appears to have made a conscious
decision to keep that information from the police or at least a
reasonable jury could infer that and, because he knew that, that
would hurt his position that he was not operating under the
influence. . . .

And I think, from that decision-making process, a reasonable
jury could also conclude that he withheld other information from
the police, namely, how much he consumed . . . and how that
affected him at the time of the crash in this case.

The court also advised the parties that it would “give a very clearly worded jury
instruction, limiting instruction about the use of that evidence.” The State
then argued that, given the court’s reasoning, evidence that the marijuana
grinder was found in the back seat of the defendant’s vehicle should also be
admitted. The trial court agreed, finding that “the evidence of the grinder is not
so much more prejudicial than the marijuana evidence in general and it does
have the additional probative value that it helps corroborate [the passenger’s]
version of this and undermines the Defendant’s version of what happened that
night.”

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 The State’s first witness at trial was the passenger. As he began to
testify, the court gave the following instruction:

Okay. So ladies and gentlemen, I need to give you some
additional instructions at this point. In cases, sometimes evidence
is admissible for one purpose and not for another purpose, so you
can consider it for some limited purposes.

And this is an example of that. In this case, you just heard a
moment ago that this witness and the Defendant had smoked
marijuana prior to the crash at issue in this case. There is no
allegation or charge in this case before you that the Defendant was
under the influence of marijuana at the time of the crash, so you
cannot speculate about that or consider that in your deliberations.

The relevance of this testimony is to -- you can consider that
testimony simply -- I mean, solely for the limited purpose of
evaluating the credibility of statements that the Defendant gave to
the police after the crash at issue in this case. So you’re only
allowed to consider this testimony as it has bearing in your
judgment on the credibility of statements that the Defendant gave
to the police after the crash, not for any other purpose.

Following the three-day trial, the defendant was convicted on two counts
of second degree assault and on a charge of transporting alcohol as a minor.
He was acquitted on two counts of aggravated driving while intoxicated.

On appeal, the defendant first argues that the trial court erred in
allowing the State to introduce the grinder evidence. He “does not challenge
the court’s decision to admit statements by himself and [the passenger] that
[the defendant] smoked marijuana on the day or the night before the accident.”
He argues, however, that: (1) the grinder evidence had no probative value; and
(2) to the extent that the evidence had any probative value, the value was
outweighed by its prejudicial impact because “the grinder cast the statements
about marijuana use in a different light” by “impl[ying] that he was more than
a casual user.”

The State contends that the defendant failed to preserve the “specific
claims he makes about the admissibility of the grinder evidence.” The State
also argues that, to the extent that the defendant challenges admission of the
grinder evidence under New Hampshire Rule of Evidence 404(b), he has failed
to apply the three-part test applicable to Rule 404(b) challenges and therefore
his Rule 404(b) argument is not sufficiently briefed. See, e.g., State v. Thomas, 168 N.H. 589, 599 (2016) (setting forth three-pronged test applicable to
evidence proffered pursuant to Rule 404(b)). The defendant responds that, his
argument is not based upon a violation of Rule 404(b); rather, because the

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Rule 404(b) test contains a Rule 403 component, see id. at 598-99, he cited
Rule 404(b) cases to support his contention that the prejudicial impact of the
grinder evidence outweighed any possible relevance. The State also argues that
to the extent the trial court erred in admitting the grinder evidence, any error
was harmless.

We have often explained that the purpose of our preservation rule is to
insure that trial forums have an opportunity to rule on issues and to correct
errors before parties seek appellate review. See, e.g., State v. McMinn, 141
N.H. 636, 642 (1997). This requirement is intended to discourage parties who
are unhappy with the trial result to comb the record to find an alleged error
never raised before the trial judge that might support a motion to set aside the
verdict. State v. Noucas, 165 N.H. 146, 152 (2013). With these principles in
mind, we have held that an issue is preserved when the trial court understood
and therefore addressed the substance of an objection. See State v. King, 136
N.H. 674, 677 (1993). Here, the analysis articulated by the trial court
demonstrates that it understood and addressed the defendant’s objection to the
admission of the grinder evidence. The defendant presents this same challenge
on appeal. We conclude, therefore, that the defendant’s argument is preserved.

Accordingly, we turn to the merits of the defendant’s argument. We
review challenges to the trial court’s evidentiary rulings to determine whether
the rulings are sustainable and reverse only if the rulings are clearly untenable
or unreasonable to the prejudice of a party’s case. State v. Tabaldi, 165 N.H.
306, 321 (2013). In determining whether a ruling is a proper exercise of
judicial discretion, we consider whether the record establishes an objective
basis sufficient to sustain the discretionary decision made. Id. The defendant
bears the burden of demonstrating that the trial court’s ruling was clearly
untenable or unreasonable to the prejudice of his case. Id.

Although the grinder evidence was arguably relevant to support the
passenger’s testimony that he and the defendant had smoked marijuana in the
defendant’s car on the night prior to the accident, we will assume without
deciding that its probative value was substantially outweighed by the danger of
unfair prejudice, and therefore the grinder evidence should not have been
admitted. See N.H. R. Ev. 403. We agree with the State, however, that the
error was harmless.

The State bears the burden of establishing that an error is harmless.
State v. Palermo, 168 N.H. 387, 398 (2015). To satisfy this burden, the State
must demonstrate, beyond a reasonable doubt, that the error did not affect the
verdict. Id. An error may be harmless if the other evidence of the defendant’s
guilt was of an overwhelming nature, quantity or weight and if the inadmissible
evidence was merely cumulative or inconsequential in relation to the State’s
evidence of guilt. Id. In determining whether the error was harmless, we

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consider the other evidence presented at trial as well as the character of the
inadmissible evidence. Id.

The defendant argues that “the grinder evidence not only raised the
profile of the marijuana evidence, making it more likely that the jury would
believe that he was impaired, but implied that he had a propensity to use the
drug.” We are not persuaded by this argument. At the time that the State
sought to admit the grinder evidence, the trial court reminded the jury of the
limiting instruction that it had given the previous day:

Okay. So, ladies and gentlemen, I’m just going to remind you. As I
told you yesterday, the evidence with respect to this that you just
heard about, there is no allegation in this case that the Defendant
was operating under the influence of marijuana. So you cannot
consider the evidence for that purpose. The reason I’m allowing
you to consider this evidence is to evaluate statements that the
Defendant -- to evaluate the credibility of statements that the
Defendant gave to the police as well as to evaluate [the passenger’s]
testimony in this case.

See, e.g., State v. Cooper, 168 N.H. 161, 171 (2015) (juries are presumed to
follow instructions).

The defendant was charged, inter alia, with two counts of second degree
assault. See RSA 631:2, I(a). Accordingly, the State was required to prove
beyond a reasonable doubt that he “knowingly or recklessly caused serious
bodily injury to another.” Id. Notwithstanding the grinder evidence, the
evidence before the jury showed that in less than twenty-four hours before the
defendant hit two pedestrians while driving: (1) he smoked marijuana both at
home and later in the car with the passenger before heading to an all-night
party; (2) he consumed alcohol at the party, and made inconsistent statements
about how much alcohol he consumed and when he consumed it; (3) he slept
approximately two and one-half hours before getting back into his car early in
the morning to drive from Ipswich, Massachusetts to Portsmouth, New
Hampshire; and (4) he continued driving despite “nodding” off several times.

Given the overwhelming nature of the other evidence of the defendant’s
guilt of the charged offenses, and the cumulative and inconsequential nature of
the grinder evidence, in light of the other testimony concerning marijuana
consumption, we conclude beyond a reasonable doubt that the grinder
evidence did not affect the verdict. To the extent that the defendant also
argues that admission of the grinder evidence requires that we reverse his
conviction for transporting alcohol as a minor, we similarly conclude that its
admission did not affect the verdict on this charge. See RSA 265-A:45.
Accordingly, to the extent that the trial court may have erred in admitting the
grinder evidence, any error was harmless. See Palermo, 168 N.H. at 398.

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 The defendant also contends that the trial court erred in ruling that the
police had probable cause to arrest him. Specifically, he argues that, in
making its probable cause determination, the trial court “failed to limit its
review of the circumstances to those facts known to [the arresting officer],
Gidley.” The State contends that this issue is not preserved because, although
the defendant challenges certain findings contained in the trial court’s order,
he did not alert the court to these specific claims of error by filing a motion to
reconsider. The State also argues that, even if Gidley lacked probable cause to
arrest the defendant for DUI, he had probable cause to arrest him for vehicular
assault. The defendant contends that the State’s “alternative grounds”
argument is not preserved.

We will assume, without deciding, that the defendant has preserved his
challenge to the specified factual findings of the trial court. Having reviewed
the record of the suppression hearing, we conclude that it supports the court’s
ruling that the police had probable cause to arrest the defendant for DUI.

The defendant challenges the trial court’s probable cause ruling under
the Federal Constitution. See, e.g., State v. Dellorfano, 128 N.H. 628, 632-33
(1986). We will affirm a trial court’s determination of probable cause unless,
when the evidence is viewed in the light most favorable to the State, the
decision is contrary to the manifest weight of the evidence. State v. Ducharme, 167 N.H. 606, 611 (2015). In reviewing its decision, we accept the trial court’s
findings unless they lack support in the record or are clearly erroneous; we
review the trial court’s legal conclusions de novo. State v. Lantagne, 165 N.H.
774, 776 (2013).

The United States Supreme Court has held that “a warrantless arrest by
a law officer is reasonable under the Fourth Amendment where there is
probable cause to believe that a criminal offense has been or is being
committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). “Whether
probable cause exists depends upon the reasonable conclusion to be drawn
from the facts known to the arresting officer at the time of the arrest.” Id. The
arresting officer’s “subjective reason for making the arrest need not be the
criminal offense as to which the known facts provide probable cause.” Id. at
153.

In determining whether the officer had probable cause, we review
reasonable probabilities and not the amount of evidence required to sustain a
conviction or to make out a prima facie case. Ducharme, 167 N.H. at 611. We
do not view each item of evidence separately, but rather as a whole, and from the
arresting officer’s point of view at the time the arrest was made. Id. We limit our
review of the trial court’s probable cause ruling to the facts presented at the
suppression hearing.

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 The defendant was arrested for violating RSA 265-A:2, I, which provides:

I. No person shall drive or attempt to drive a vehicle upon
any way or operate or attempt to operate an OHRV:

(a) While such person is under the influence of intoxicating
liquor or any controlled drug, prescription drug, over-the-counter
drug, or any other chemical substance, natural or synthetic, which
impairs a person’s ability to drive or any combination of
intoxicating liquor and controlled drugs, prescription drugs, over-
the-counter drugs, or any other chemical substances, natural or
synthetic, which impair a person’s ability to drive; or

(b) While such person has an alcohol concentration of 0.08
or more or in the case of a person under the age of 21, 0.02 or
more.

Under the first variant of DUI, a person is guilty if he or she drives a vehicle
upon a way while “under the influence of intoxicating liquor . . . which impairs
a person’s ability to drive,” RSA 265-A:2, I(a); see State v. Ducharme, 167 N.H.
at 617 (holding that to prove that defendant was “under the influence of
intoxicating liquor,” State needed to prove beyond reasonable doubt only that
defendant was impaired to any degree (emphasis added)). Under the second
variant, a person is guilty of DUI if the person drives with an alcohol
concentration of 0.08 or more, or if under the age of 21, an alcohol
concentration of 0.02 or more. See RSA 265-A:2, I(b).

At the suppression hearing, the State argued that under either variant,
Gidley had probable cause to arrest the defendant for DUI. As to the first
variant, the State argued that there was sufficient evidence for Gidley to
conclude that the defendant “was impaired to any degree.” We agree.

In determining that probable cause existed, the court cited Gidley’s
detection of a “slight” odor of alcohol and his observation that the defendant’s
eyes were glassy. The record establishes that before Gidley spoke to the
defendant at the scene, Gidley had already interviewed an eyewitness who
reported that the defendant’s car left the northbound lane, crossed the
southbound lane, and then went over the fog line before hitting the victims,
and that it was “[a]lmost like the car was aiming for [them].” Gidley had also
observed the defendant’s vehicle facing northbound but straddling the
southbound lane and the fog line, and he saw two pedestrians lying on the
ground. The defendant also told Gidley that he had been on an overnight
camping trip and that he had had two beers to drink at about midnight.

The defendant argues that the record does not support findings by the
court that Gidley knew, at the time that he decided to arrest the defendant,

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that: (1) the defendant had consumed alcohol at an all-night party; and (2)
although he told Gidley that he had been camping in Seabrook, he had
previously told another officer that he had been coming from a party in
Ipswich. Even if we assume, without deciding, that the record, viewed in the
light most favorable to the State, does not support these peripheral findings, we
conclude that the record evidence establishes that Gidley had probable cause
to arrest the defendant for DUI.

Accordingly, we affirm the defendant’s convictions.

Affirmed.

DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.

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