State of New Hampshire v. Thomas Lizotte

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0104, State of New Hampshire v. Thomas
Lizotte, the court on November 16, 2016, issued the following
order:

Having considered the brief, memorandum of law, and 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 Lizotte, appeals his conviction for driving while
intoxicated. See RSA 265-A:2 (2016). He argues that the Circuit Court (Ashley,
J.) erred in denying his motion to dismiss which challenged the sufficiency of the
evidence.

The record contains the following evidence: On September 27, 2015, at
approximately 4:15 p.m., Sharon Demeritt was headed west on Route 202A in
Strafford when she observed a small white car approaching from the opposite
direction. The white car hit a ditch, spun around and came to rest on the same
side of the road that Demeritt was travelling. Demeritt pulled over to check on
the condition of the driver, the defendant. The defendant had “a bloody gash” on
his forehead and mumbled in response to Demeritt’s inquiry. When he tried to
back up the car, Demeritt warned him that he couldn’t because a tree was
behind him. He continued to try to rock the car back and forth to extricate his
vehicle from the ditch. Demeritt became concerned for her safety and returned to
her car and called 9-1-1. She reported her concerns and provided the license
plate number of the vehicle driven by the defendant. During her call, Demeritt
saw the defendant’s car pass her at a high rate of speed.

On the same day at approximately 4:30 p.m., Kurt Sampson observed a
small white car in his driveway in Barrington. When he approached the vehicle,
he observed that the driver, the defendant, was bleeding and that the window on
the passenger side of the vehicle was shattered. During their brief conversation,
Sampson also observed that the defendant appeared confused. Worried about
the defendant and that “he could possibly hurt someone if he le[ft],” Sampson
also called 9-1-1.

Strafford Police Officer Dustin responded to the 9-1-1 telephone calls. He
observed the defendant drive by him in a white Elantra with damage to the front
end of the car and a cracked windshield. After confirming that this was the
vehicle for which he received the initial call, he turned around and followed the
car for approximately one mile and then conducted a traffic stop. After
approaching the car, Dustin observed that the defendant’s speech was slurred
and that he appeared to have “lost urinary continence.” He also “smelled the
odor of an alcoholic beverage emanating from the vehicle as [the defendant]
spoke” to him. When Dustin asked the defendant about his car accident earlier
in the day, the defendant denied that he had had an accident and said that he
had hit a deer the previous week. He stated that he had received the cut on his
forehead while he was working under the car earlier that day. When asked
whether he had been drinking, the defendant initially denied that he had, but
during the course of the conversation he admitted that he had had a “Jack and
Coke” earlier. Dustin then asked him to step out of the car. As the defendant
walked toward the rear of his car, “he was kind of leaning forward and kind of
staggering or maybe shuffle stepping as he walked.”

Dustin asked the defendant whether he had taken any medications or
suffered a brain injury in the past which might affect his performance on field
sobriety tests. The defendant responded that he had not. He stated that
although he had hit his head while working on his car he should be able to
perform the tests. His performance on the field sobriety tests indicated that he
was impaired. Dustin concluded that the defendant was impaired as a result of
being under the influence of an intoxicating liquor and arrested him. As he
transported him to the police station, he noticed an odor of alcohol in the cruiser
that had not been there before the defendant entered it. At the police station, the
defendant refused to take a breath test. Following a bench trial at which three
witnesses testified and during which the court viewed an audio and video
recording of the stop and arrest, the trial court found the defendant guilty of
driving while intoxicated.

On appeal, the defendant challenges the sufficiency of the evidence. To
convict the defendant of driving while intoxicated, the State was required to prove
that the defendant: (1) drove a vehicle; (2) upon a way; and (3) he was under the
influence of intoxicating liquor when he did so. See RSA 265-A:2 (2014). We
note that the trial court took judicial notice that the defendant operated his
vehicle upon a way.

The defendant argues that the evidence used to support his conviction was
“solely circumstantial,” and therefore his burden on appeal is to establish that
the evidence does not exclude all reasonable conclusions except guilt. See State
v. Germain, 165 N.H. 350, 361 (2013). He contends that because the
“circumstantial evidence did not foreclose the possibility that [his] condition was
the result of a head injury,” the evidence did not exclude all other reasonable
conclusions and he has met his burden. Although the record contains direct
evidence that the defendant consumed alcohol and then drove, see State v.
Kelley, 159 N.H. 449, 454 (2009) (direct evidence, if accepted as true, directly
proves the fact for which it is offered, without need for fact finder to draw any
inferences), we will assume, without deciding, that the circumstantial evidence

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standard applies. We therefore apply the test advanced by the defendant: To
prevail in his challenge to the sufficiency of the evidence, the defendant must
establish that the evidence does not exclude all reasonable conclusions except
guilt. See Germain, 165 N.H. at 361. We note, however, that even if we assume
without deciding that the evidence that was presented to prove impairment was
circumstantial, it was entitled to the same weight as direct evidence. See id. at
356.

In support of his argument that the State failed to present sufficient
evidence to support his conviction, the defendant cites Dustin’s testimony that he
did not observe any impairment in the defendant’s driving during the short
distance that he followed him and that Dustin acknowledged that the defendant
“had no trouble” getting out of his car. He also contends that his head injury
affected his performance on the field sobriety tests.

The evidence before the trial court included Dustin’s observations at the
time of the traffic stop: (1) the defendant was slurring his words; (2) Dustin
smelled an odor of alcohol coming from the vehicle when the defendant spoke to
him; and (3) the defendant appeared to have been incontinent. Dustin also
described the defendant’s performance on the field sobriety tests. He also
testified that the defendant admitted that he had had an alcoholic beverage
earlier that day and that he refused to take a breath test, see RSA 265-A:10
(2014) (evidence of refusal to take alcohol concentration test admissible in
criminal proceeding based upon driving while under influence of intoxicating
liquor); State v. Lorton, 149 N.H. 732, 735 (2003) (refusal to take breath test
supports inference that defendant sought to suppress evidence of his guilt).

Demeritt described the defendant’s actions both before and after his car hit
the ditch and spun around. Sampson testified that the defendant appeared
confused when Sampson attempted to determine what he was doing in his
private driveway.

Although Dustin testified that the defendant “exited the vehicle okay,” his
complete response to the question was: “He exited the vehicle okay, it was just
the - - kind of walking after that concerned me.” He then gave a detailed
description of the defendant’s performance on the field sobriety tests.

That Dustin did not observe impaired driving during a brief period does not
rebut the detailed description of the defendant’s conduct provided by trial
witnesses. Moreover, although the defendant attributed his conduct to a head
injury that he advised Dustin he had suffered that morning, that explanation is
not reasonable in light of all of the evidence presented. His erratic driving before
hitting the ditch, his denial that he had been in an accident that day, the odor of
alcohol which Dustin detected both in the defendant’s car and in Dustin’s cruiser
when he took the defendant into custody, and the defendant’s refusal to take a

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breath test exclude all reasonable conclusions except that the defendant was
operating a vehicle while under the influence of an intoxicating liquor.

Affirmed.

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

Eileen Fox,
Clerk

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