State of New Hampshire v. Taylor M. Kenny

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0372, State of New Hampshire v. Taylor
M. Kenny, the court on June 18, 2020, issued the following
order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
defendant, Taylor M. Kenny, appeals his conviction after a bench trial in the
Circuit Court (Gardner, J.) of driving under the influence (DUI). See RSA 265-
A:2, I (2014). We affirm.

The following facts are derived from the record. At approximately 11:30
p.m. on February 2, 2019, Durham Police Officer Pelletier was parked on
Newmarket Road running stationary radar. The officer saw a vehicle traveling
towards him at “a high rate of speed” and observed on the radar that the car
was traveling 59 miles per hour in the 35 mile-per-hour zone. The officer
turned his cruiser to follow the car, activated the cruiser’s blue lights, and the
car slowed quickly but remained in the travel lane for a short distance before
pulling over to the side of the road.

The officer spoke with the defendant and asked for his license and
registration. While providing his license, the defendant fumbled with his wallet
and nearly dropped it twice. His eyes appeared bloodshot and droopy, and the
officer noticed the odor of “an alcoholic beverage” coming from the vehicle. The
officer asked if the defendant had been drinking and he said he had not. The
officer twice asked the defendant to participate in field sobriety testing but he
declined each request.

The officer asked if he had any medical conditions such as epilepsy or
diabetes, or if he had suffered any recent head injuries, trauma, or
hospitalizations; the defendant answered all of these questions in the negative.
The officer then asked the defendant to step out of the vehicle and, after the
officer’s fourth request, the defendant complied. As the defendant stepped out
of the car and walked to the rear of the vehicle, he was unsteady on his feet.
Determining that the defendant was impaired and unable to safely operate a
motor vehicle, the officer placed him under arrest for DUI.

While transporting the defendant to the police department, the officer
smelled the odor of an alcoholic beverage inside the cruiser that had not been
present before. In the intoxilyzer room at the police department, as they sat
facing each other across a table at a distance of approximately three feet, the
officer continued to smell alcohol. He told the defendant he could smell the
odor of alcohol and again asked the defendant if he drank that night, but the
defendant again denied drinking. After reviewing the administrative license
suspension form with the defendant, the officer asked him if he would submit
to a breath test, but he refused. The defendant marked the form indicating his
refusal and noting that his refusal could be used as evidence against him in
court.

After being read his Miranda rights, the defendant agreed to answer
questions. When asked why he was driving 59 miles an hour in a 35 mile-per-
hour zone, the defendant responded that he had not realized he was going that
fast. As he spoke, his speech was slow and muffled.

Following a bench trial, the trial court found that:

not being aware of the speed; the bloodshot eyes; slow, thick,
muffled speech; dexterity issues; being unsteady on [his] feet -- the
odor of alcohol, obviously, is not a sign of impairment on its own,
but the denial combined with the odor, and refusal, all amount to
any degree, however slight, which is the standard in this state.

Accordingly, the court ruled that the State proved its case beyond a reasonable
doubt.

On appeal, the defendant argues that the trial court erred by finding that
there was sufficient evidence to convict him of DUI. According to the
defendant, the State’s evidence “was far from overwhelming, and, even when
viewed in the light most favorable to the State, did not support a guilty finding
beyond a reasonable doubt.” The defendant asserts that when compared to
other cases where the officer observed erratic driving, confusion, slurred or
difficult to understand speech, an odor of alcohol, difficulty maintaining
balance, and where the defendant admitted to consuming alcohol, no rational
trier of fact could have found that he was impaired. We disagree.

RSA 265-A:2, I(a) provides that “[n]o person shall drive . . . a vehicle
upon any way . . . [w]hile such person is under the influence of intoxicating
liquor.” To prove that the defendant was “under the influence of intoxicating
liquor,” the State need only prove that the defendant was “impaired to any
degree.” State v. Kelley, 159 N.H. 449, 452 (2009) (quotation omitted). To
prevail in a challenge to the sufficiency of the evidence, the defendant bears the
burden of proving that no rational trier of fact, viewing the evidence in the light
most favorable to the State, could have found guilt beyond a reasonable doubt.
See id. at 454-55.

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 In reviewing the evidence, we examine each evidentiary item in the
context of all the evidence, not in isolation. Id. at 455. The trier of fact may
draw reasonable inferences from facts proved and also inferences from facts
found as a result of other inferences, provided they can be reasonably drawn
therefrom. Id.; cf. State v. Sage, 170 N.H. 605, 610-11 (2018) (in evaluating
whether there existed reasonable suspicion supporting expansion of traffic stop
to investigate DUI, “we do not consider each of [the officer’s] observations in
isolation; rather we consider them together and in light of the reasonable
inferences that an officer who is experienced in detecting and investigating
impaired drivers may draw”).

Viewing all the evidence and all reasonable inferences that may be drawn
from it in the light most favorable to the State, we conclude that the evidence
was sufficient for a rational trier of fact to find beyond a reasonable doubt that
the defendant was guilty of DUI. The defendant was unaware that he was
driving his vehicle 24 miles per hour over the speed limit. See Sage, 170 N.H.
at 610 (defendant’s inability to maintain correct speed was a factor supporting
the officer’s decision to investigate whether the defendant was driving under
the influence); State v. MacDonald, 156 N.H. 803, 806 (2008) (speeding was
evidence of erratic operation); cf. State v. Blesdell-Moore, 166 N.H. 183, 189
(2014) (finding no indicia of impairment where the defendant was not speeding
or otherwise operating his vehicle in an erratic manner). The defendant’s eyes
were bloodshot and droopy, the odor of alcohol emanated from him, he fumbled
with his wallet and almost dropped it twice, and he was unsteady on his feet.
See Sage, 170 N.H. at 610 (finding reasonable suspicion of DUI where odor of
alcohol emanated from vehicle and defendant’s eyes were red and watery);
Kelley, 159 N.H. at 455 (defendant had difficulty producing her registration,
slowly fiddling through different papers). In addition, the fact finder could infer
from the defendant’s refusal to submit to a breath test that he was conscious of
his guilt. See State v. Parmenter, 149 N.H. 40, 44 (2002); State v. Cormier, 127
N.H. 253, 256-60 (1985); RSA 265-A:10 (2014). Finally, Pelletier testified that,
at the time of the defendant’s trial, he had investigated “[a]pproximately 25”
DUI cases and that he interacted with people impaired by alcohol on an almost
daily basis in the course of his employment as a police officer over the previous
three years.

Considering all of the officer’s observations together and the reasonable
inferences that may be drawn therefrom, we conclude that the defendant has
not demonstrated that no rational trier of fact could have found him guilty of
DUI beyond a reasonable doubt. See Kelley, 159 N.H. at 454-55. Accordingly,
we reject his argument that the evidence was not sufficient to convict him of
DUI.

Characterizing the evidence of impairment in this case as solely
circumstantial, the defendant also argues that the trial court’s guilty finding
should be reversed because the State’s evidence of impairment did not exclude

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all rational conclusions except guilt, citing State v. Lorton, 149 N.H. 732, 733-
35 (2003), overruled in part by Kelley, 159 N.H. at 454. The defendant asserts
that evidence that he fumbled with his wallet and that there was “a general
odor of alcohol emanating from [his] person” is “the type of evidence from which
a rational trier of fact might draw inferences consistent with impairment or
inferences consistent with innocence.” Even assuming, without deciding, that
the “circumstantial evidence” standard of review applies, see, e.g., State v.
Vincelette, 172 N.H. 350, 354-55 (2019) (explaining standard), we conclude
that the evidence in this case was sufficient to meet that standard. As set forth
above, in addition to fumbling his wallet and smelling of alcohol, the defendant
had bloodshot and droopy eyes, was unsteady on his feet, had slow and
muffled speech, and was unaware he was driving 24 miles per hour over the
speed limit. Given that the defendant also told the officer that he “had no
medical issues whatsoever,” including that he “was not diabetic, epileptic, was
not taking any medications, [had] no head injuries, no hospitalizations” and no
“problems with his back or legs or his balance,” based on all of the evidence,
and all reasonable inferences from it viewed in the light most favorable to the
State, we hold that the evidence precluded any reasonable conclusion other
than impairment from consuming alcohol. See id.

Affirmed.

HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred; DONOVAN, J.,
concurred specially.

DONOVAN, J., concurring specially. I agree with my colleagues that, in
light of the applicable standard of review, we, as an appellate court, have little
choice but to affirm the defendant’s conviction of driving under the influence.
See RSA 265-A:2, I (2014). I write separately, however, to point out that all of
the evidence of the defendant’s impairment is not direct, but, in fact, solely
circumstantial. Despite our “clarification” of what constitutes direct evidence
of impairment in State v. Kelley, 159 N.H. 449 (2009) (overruling, in part, State
v. Lorton, 149 N.H. 732 (2003)), an investigating officer’s observations of a DUI
suspect’s conduct may constitute direct evidence as to what the officer
observed, but further inferences must be drawn for a fact finder to draw any
conclusions as to whether those observations constitute evidence of
impairment or intoxication. Thus, such observations constitute circumstantial,
not direct, evidence of impairment. For this reason, I believe that our
clarification of this distinction in Kelley was wrongly decided.

In my view, pursuant to our State’s well-established standard for
assessing evidence of an element that is solely circumstantial, the State was
required to prove, beyond a reasonable doubt, that the evidence of impairment
excluded all rational conclusions except guilt. See Lorton, 149 N.H. at 733-35.
Based on the evidence presented to the trial court in this case, I question
whether the State met that burden. Nonetheless, on appeal, we view the

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evidence, and all inferences that may reasonably be drawn from that evidence,
in the light most favorable to the State and the defendant bears the burden of
proving that the evidence does not exclude all reasonable conclusions except
guilt. State v. Roy, 167 N.H. 276, 292 (2015). Under this standard, we do not
determine whether another possible hypothesis has been suggested by the
defendant which could explain the events in an exculpatory fashion. Id.
Rather, we determine whether the alternative hypothesis is sufficiently
reasonable that a rational trier of fact could not have found proof of guilt
beyond a reasonable doubt. Id. Given this standard, I cannot conclude that a
rational trier of fact could not have found, beyond a reasonable doubt, that the
defendant was impaired, although I have no doubt that another rational trier of
fact could have found that the defendant was not impaired and thus not guilty.

The circumstantial evidence of impairment presented to the trial court in
this case consisted of the following: (1) speeding, although the arresting officer
testified that he did not observe any erratic driving after following the
defendant for at least half a mile; (2) a generalized odor of an alcoholic beverage
emanating from the defendant’s person, although the defendant denied
consuming any alcohol; (3) “poor manual dexterity” that caused the defendant
to momentarily juggle his wallet in response to the officer’s request for the
defendant’s license but did not impede the defendant’s ability to retrieve his
registration without difficulty; (4) the defendant’s unsteadiness while walking to
the back of his vehicle that did not reoccur throughout his encounter with the
police; (5) bloodshot and droopy eyes; (6) muffled speech that did not interfere
with the officer’s ability to understand anything that the defendant said; and
(7) refusals to submit to either field sobriety or breath tests1. From each of
these observations a trier of fact could draw reasonable inferences consistent
with innocence and if I were required to determine whether the State had
established the defendant’s guilt, beyond a reasonable doubt, I would have
concluded that it did not. See, e.g., State v. Blesdell-Moore, 166 N.H. 183, 189
(2014) (“[N]ervousness is entirely consistent with innocent behavior.” (quotation
omitted)); Lorton, 149 N.H. at 735 (commenting that “[t]he absence of any
significant corroborating evidence . . . weakens the inference” “that the
defendant sought to suppress evidence of his guilt” by refusing to take a breath
test); cf. State v. Ducharme, 167 N.H. 606, 612 (2015) (weighing an officer’s
observations of “a distinctive odor of alcohol coming from [the defendant’s]
breath” in favor of finding that probable cause existed to arrest the defendant
for DUI (quotation omitted)); State v. Wiggin, 151 N.H. 305, 309 (2004)
(concluding that sufficient evidence existed to support a DUI conviction when

1 The trial court found that the defendant’s refusals were “the most compelling” evidence the State

presented. However, as we explained in Lorton, the probative value of the inference that a
defendant is seeking to suppress evidence of his guilt by refusing to submit to a breath test is not
the same in all cases. Lorton, 149 N.H. at 735. “The inference is much stronger, for example,
when coupled with an admission,” id., a fact not present here. In fact, “[t]he absence of any
significant corroborating evidence [such as] erratic driving or outright failure of a sobriety test —
further weakens the inference” that the trial court here found “most compelling.” Id.

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the defendant, among other things, admitted to consuming “a few beers” and
failed five field sobriety tests).

The trial court concluded otherwise, finding that the evidence established
that the defendant was impaired “to any degree, however slight, which is the
standard in this state.”2 Yet, comparing the evidence of impairment presented
to the trial court in this case to the facts set forth in Lorton and Kelley suggests
that proof beyond a reasonable doubt has somehow been reduced to a lower
standard of proof in DUI cases, despite the significant penalties and, at times,
disastrous consequences resulting from a DUI conviction. For example, in
Lorton the trial court convicted the defendant of DUI based upon the following
evidence concerning the defendant’s impairment: (1) an odor of alcohol from
the defendant’s breath; (2) red and glassy eyes; (3) red and flushed face; (4) an
admission to drinking; (5) his failure to adequately perform two field sobriety
tests (FSTs); and (5) the defendant’s refusal to submit to a breath test. Lorton,
149 N.H. at 733-34. On appeal, after reviewing all of the evidence in the light
most favorable to the State, we concluded, applying our standard for assessing
evidence that is solely circumstantial, that this evidence was insufficient to
prove the defendant’s guilt beyond a reasonable doubt.3 Id.

In Kelley, we found that the evidence of the defendant’s intoxication was
“overwhelming.” Kelley, 159 N.H. at 451. Indeed, in that case the defendant
not only operated her vehicle in an erratic manner, she nearly crashed into the
arresting officer’s cruiser after crossing the double yellow line. Id. In addition,
Kelley came to a sudden stop after being pulled over, she admitted to drinking,
her speech was slurred, her face was red, her eyes were glassy, she was
unsteady on her feet, she had difficulty exiting her vehicle, and she failed two
FSTs. Id. The facts presented to the trial court here pale in comparison and
are much more analogous to the evidence we considered in Lorton. Indeed,
most practitioners in this area of the law would likely describe the evidence of
2 It bears noting that an approximation of this “standard” was first articulated in State v. Slater,

109 N.H. 279, 280 (1969). See State v. Taylor, 132 N.H. 314, 316 (1989). In Slater we observed
that the “purpose of the [DUI] statute is to prevent the operation of cars by persons under the
influence of intoxicating liquor.” Slater, 109 N.H. at 280. We concluded that because “[t]here are
no degrees of influence provided for in ‘under the influence of intoxicating liquor,’ . . . impairment
to ‘any degree’ is sufficient to constitute the offense.” Id. The term “however slight” appears
nowhere in the Slater opinion. Although we have regularly recited the “impaired to any degree”
standard in our DUI jurisprudence, see, e.g., Wiggin, 151 N.H. at 309, we have never articulated
precisely what it means or whether it refers to an impairment to operate a vehicle or merely any
physiological impairment caused by the consumption of alcohol or intoxicating drugs.
Accordingly, this standard would benefit from further review in an appropriate case. See, e.g.,
People v. Cruz, 399 N.E.2d 513, 516 (N.Y. 1979) (holding that the question in a prosecution for
driving while impaired by alcohol is whether, “by voluntarily consuming alcohol, this particular
defendant has actually impaired, to any extent, the physical and mental abilities which he is
expected to possess in order to operate a vehicle as a reasonable and prudent driver”).

3 As in this case, the arresting officer testified that he did not make any observations of erratic

driving by the defendant. Lorton, 149 N.H. at 734.

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impairment submitted in this case as the typical, rote litany of observations
presented in nearly every DUI prosecution.

Nonetheless, as I lamented at the outset, an appellate jurist does not
have the benefit of simply reweighing all of the evidence or substituting his or
her judgment for the judgment of the trial court. When I consider all of the
evidence together, as well as the reasonable inferences that may be drawn
therefrom, I concur with my colleagues’ conclusion that the defendant has not
demonstrated that no rational trier of fact could have found him guilty of DUI
beyond a reasonable doubt. See Roy, 167 N.H. at 292.
Affirmed.

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