State of New Hampshire v. Jason W. Nason

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0395, State of New Hampshire v. Jason W.
Nason, the court on April 28, 2020, issued the following order:

Having considered the briefs 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, Jason W. Nason, appeals his convictions, following a jury
trial, of manslaughter, second-degree assault, negligent homicide, aggravated
driving while intoxicated, and driving under the influence. See RSA 265-A:2,
I(a), :3, I(b) (2016) (driving under the influence and aggravated driving under
the influence); RSA 630:2, I(b), :3, II (2016) (manslaughter and negligent
homicide); RSA 631:2, I(b) (2016) (second-degree assault). He argues that the
Superior Court (Ignatius, J.) erred in: (1) denying his motion to dismiss; and
(2) denying his motion to preclude a witness’s testimony.

The defendant first argues that the trial court erred in denying his
motion to dismiss the charges because the evidence was insufficient to prove
impairment. To prevail upon a challenge to the sufficiency of the evidence, the
defendant must prove that no rational trier of fact, 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. Morrill, 169 N.H.
709, 718 (2017).

The record shows that on September 13, 2016, at approximately
4:00 p.m., the defendant was driving his pickup truck northbound on Route 16
when his truck crossed the double yellow centerline and entered the
southbound lane of travel. The vehicle traveling in the southbound lane veered
into the breakdown lane in an effort to evade the defendant’s truck. The
defendant’s truck entered the southbound breakdown lane and collided with
the southbound vehicle, killing the driver and causing serious bodily injury to
the passenger.

The weather on that day was warm and dry, with clear skies and at least
ten miles of visibility. There were no skid marks or other indications that the
defendant attempted to stop his truck or avoid the crash. The trooper leading
the investigation found no mechanical defects that would have caused the
truck to veer into the opposite lane. Records show that the defendant was not
using his cellphone at the time of the crash. The defendant admitted to
another trooper that he had driven across the centerline and struck the other
vehicle, but he could not explain how he lost control over his truck. The
defendant also admitted that he is a drug user but claimed that he had not
used drugs that day. The trooper drove the defendant to the hospital, where he
consented to a blood test.

The defendant’s blood was tested at the State Police Forensic Laboratory,
which showed that, three to four hours after the accident, his blood contained
8.1 nanograms per milliliter of fentanyl and between five and ten nanograms
per milliliter of clonazepam. A toxicologist who testified at trial described this
as “a very substantial amount” of fentanyl, noting that “people have been
known to die at levels far less; three nanogram[s] per milliliter.” She opined
that the defendant had exhibited signs and symptoms of impairment by
fentanyl and clonazepam at the time of the accident.

The defendant argues that the evidence was insufficient to prove
impairment. He asserts that there is no per se limit for the amount of drugs
that a person can have in his system while driving, that “[n]o witnesses saw
any signs of impairment,” and that there was no direct evidence of impairment.
When the evidence as to an element of proof is solely circumstantial, it must
exclude all reasonable conclusions except guilt. See Morrill, 169 N.H. at 718.
The record shows that witnesses, including the driver and passenger in a
vehicle traveling behind the victims’ vehicle, observed the defendant’s truck
cross the centerline and collide with the victims’ vehicle. The trooper who
drove the defendant to the hospital after the accident described him as being
“lethargic at times,” a symptom of drug use, according to the toxicologist. This
evidence, together with the laboratory results showing that the defendant’s
blood contained clonazepam and an elevated level of fentanyl, is direct evidence
of impairment. See State v. Kelley, 159 N.H. 449, 454 (2009). Even assuming,
without deciding, that the evidence of impairment is entirely circumstantial, we
conclude that the defendant’s alternative hypothesis—that he ingested drugs
only after the accident and before the police arrived—is not reasonable given
his claim that he had not used drugs that day. See Morrill, 169 N.H. at 718.

The defendant also argues that the evidence of impairment was
insufficient because the State’s toxicologist had no opinion as to whether he
was “in the acute or withdrawal phase of fentanyl or clonazepam.” As a result,
he argues, there was insufficient evidence to show that “the drugs were actively
affecting him at the time of the accident.” The toxicologist opined that the
defendant demonstrated signs and symptoms of impairment consistent with
the use of fentanyl and clonazepam. She opined that mixing fentanyl, an
opioid, with clonazepam, a benzodiazepine, “is a really dangerous
combination.” She testified that the combination of the two drugs could cause
a person to experience lethargy, to be inattentive, and to demonstrate poor
driving skills, including weaving within a lane of travel and going outside the
lane of travel. The toxicologist opined that, in this case, the defendant’s loss of

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control over his truck was evidence of impairment. The toxicologist found
other indicators of impairment as well, including the defendant’s lack of
memory of the accident and his headache after the accident.

Although, on cross-examination, the toxicologist testified that she had no
opinion as to whether the defendant was “in the acute or withdrawal phase” of
fentanyl use, she also testified that a person “can be impaired during the
withdrawal phase.” Moreover, she testified that a person can “avoid going into
withdrawal” by continuing to use the drug, and that, in this case, it was
unlikely that the fentanyl had been in the defendant’s system for more than 24
hours. Based upon this evidence, we conclude that the defendant’s hypothesis
that he was unimpaired by the drugs in his system at the time of the accident
is not reasonable. See Morrill, 169 N.H. at 718. We conclude that the evidence
was sufficient to prove impairment.

The defendant next argues that the trial court erred in denying his
motion to preclude a witness from testifying, arguing that the witness’s
testimony was not relevant and that, even if it was relevant, it was not
substantially more probative than prejudicial. “We review challenges to a trial
court’s evidentiary rulings under our unsustainable exercise of discretion
standard and reverse only if the rulings are clearly untenable or unreasonable
to the prejudice of a party’s case.” State v. Fiske, 170 N.H. 279, 286 (2017)
(quotation omitted). 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.

The witness in question was in a vehicle traveling southbound on Route
16 shortly before the accident. Around 4:00 p.m., he observed a silver pickup
truck heading north on the same road and a dust cloud rising from the
shoulder of the road as the truck hit a patch of dirt on the side of the road.
The witness testified that, as the driver swerved back into his lane, the truck
nearly crossed the double lines into the southbound lane. About five or six
minutes later, the witness received an alarm activation notice on his electronic
device, to which he responded by relaying his observations of the truck.

The defendant argues that the trial court erred in admitting this
testimony because the witness did not know the make or model of the truck he
observed, could not identify the driver, and was unable to determine the exact
time that he observed the truck’s erratic operation. All evidence must be
relevant to be admissible. N.H. R. Ev. 402. Relevant evidence is that which
has any tendency to make a fact that is of consequence to the determination of
the action more or less probable than it would be without the evidence. N.H. R.
Ev. 401. Evidence does not need to be conclusively connected to the crime
before it can be admitted. State v. Perri, 165 N.H. 400, 412 (2012). We
conclude that the defendant’s challenges to the witness’s testimony pertain to

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its weight rather than its admissibility. See State v. Littlefield, 152 N.H. 331,
339 (2005). We are not persuaded by the defendant’s arguments that the
probative value of the testimony was substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury. See State v.
Dion, 164 N.H. 544, 551-52 (2013). Accordingly, we conclude that the
defendant has failed to demonstrate that the trial court’s ruling was clearly
untenable or unreasonable to the prejudice of his case. See Fiske, 170 N.H. at
286.

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

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