State v. Van Uden

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as
well as formal revision before publication in the New Hampshire Reports.
Readers are requested to notify the Reporter, Supreme Court of New
Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any
editorial errors in order that corrections may be made before the opinion goes
to press. Errors may be reported by email at the following address:
reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00
a.m. on the morning of their release. The direct address of the court’s home
page is: https://www.courts.nh.gov/our-courts/supreme-court

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-northern judicial district
Case No. 2022-0616
Citation: State v. Van Uden, 2024 N.H. 47

THE STATE OF NEW HAMPSHIRE

v.

THOMAS VAN UDEN

Argued: November 29, 2023
Opinion Issued: August 29, 2024

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Audriana Mekula, assistant attorney general, on the brief and orally),
for the State.

Pamela E. Phelan, senior assistant appellate defender, of Concord, on the
brief and orally, for the defendant.

MACDONALD, C.J.

¶1 The defendant, Thomas Van Uden, appeals his convictions following
a jury trial in Superior Court (Messer, J.) on five counts of reckless conduct
with a deadly weapon, see RSA 631:3, I, II (2016 & Supp. 2023); RSA 625:11, V
(2016). He argues that the trial court erred when it: (1) admitted testimony
from lay witnesses about his alleged opioid use; (2) allowed the State to use
evidence of his purported opioid use for an improper purpose during its closing
argument; and (3) denied his motion to merge the five reckless conduct charges
into one charge for sentencing. We affirm in part, reverse in part, and remand.

I. Background

¶2 The jury could have found the following facts. During the afternoon
of August 2, 2021, the defendant drove through a red light at a high rate of
speed at a Manchester intersection. As he tried to drive in between two lanes
of vehicles, he hit three vehicles. One vehicle was hit so hard that it was
pushed into the center of the intersection. After striking the vehicles, the
defendant’s car went through the intersection. The defendant then “yanked”
his steering wheel, his car hit the median, and flipped over in the air, landing
on top of another vehicle which was stopped on the opposite side of the
intersection. That vehicle then slid into the vehicle next to it. The defendant’s
vehicle landed on its side and rolled onto its roof. The cars hit by the
defendant were damaged; some were total losses.

¶3 A paramedic arrived at the scene to find the defendant, who had
been partially ejected from his car, unconscious. She began treating the
defendant and observed that he was pale, sweaty, and cool to the touch. She
also observed that the defendant’s pupils were pinpointed, and she
administered 0.5 grams of Narcan intravenously.

¶4 The defendant was transported to the hospital by ambulance. A
Manchester police officer who spoke with the defendant at the hospital testified
at trial that while they spoke, the defendant used “[m]ostly one-word answers,”
was lethargic, and had slurred speech. The officer also observed that the
defendant’s pupils were pinpointed, which the officer said he understood,
based on his training and experience, to be a side effect of being under the
influence of opioids.

¶5 The defendant was charged with one count of second degree assault
with serious bodily injury, seven counts of reckless conduct with a deadly
weapon, one count of driving under the influence of drugs or alcohol, and one
count of disobeying a police officer. Prior to trial, the defendant moved to
exclude testimony from two witnesses. The defendant argued that the
testimony of the paramedic and of one of the victims regarding their
observations of signs or symptoms of overdose was inadmissible expert
testimony. The trial court denied the motion, ruling that “as long as the
witnesses are both able to lay a foundation for their knowledge, and their
testimony does not veer into the area of scientific or technical processes which
an average lay person would not be able to comprehend,” they could testify on
these issues.

2
 [¶6] Five victims testified at trial. The State also introduced into
evidence, and played for the jury, a video of the incident that had been
captured by a home surveillance camera located on an apartment building at
the intersection. In addition, the State presented testimony from the police
officer who spoke with the defendant at the hospital and from the paramedic
who treated him at the accident scene regarding their observations of the
defendant.

¶7 At the close of the State’s case, the defendant moved to dismiss all of
the charges. The trial court dismissed two of the reckless conduct charges,
and dismissed the driving under the influence of drugs or alcohol charge and
the second degree assault charge after finding that the State had not presented
any evidence that an opioid is a controlled drug.

¶8 The defendant then requested that the trial court instruct the State
not to refer in its closing argument to the administration of Narcan because the
two charges referencing the defendant’s use of a controlled drug had been
dismissed. The State objected, arguing that the testimony was relevant to the
remaining reckless conduct charges because it allowed the jury to reasonably
infer that the defendant “consciously chose to take a controlled drug,
consciously chose to get behind the wheel of an automobile, a 2,000-pound
deadly weapon, and . . . consciously chose to drive down a public way.” The
trial court ruled that the State would be permitted to mention Narcan in its
closing argument, because it was relevant to the remaining charges given that
it was “intrinsically involved in what was happening at that time.” The trial
court also ruled that the State could refer in closing to the paramedic’s
testimony that she observed the defendant’s pinpoint pupils, and her
explanation of why she administered Narcan. The State referenced the
administration of Narcan and the paramedic’s testimony about pinpoint pupils
in its closing argument.

¶9 The jury convicted the defendant on five counts of reckless conduct,
and found him not guilty of disobeying a police officer. The defendant moved to
merge the five reckless conduct convictions for sentencing, arguing that all five
charges stemmed from one criminal course of conduct. The trial court denied
the defendant’s motion, and thereafter, at a hearing, imposed five separate
sentences. This appeal followed.

II. Analysis

a. Lay Witness Testimony

¶10 The defendant first argues that the trial court erred by admitting
testimony from lay witnesses about alleged opioid use. The State disputes that
the trial court erred in admitting this testimony, but argues that even if the
trial court erred, any error was harmless beyond a reasonable doubt. For the

3
purposes of this appeal, we need not determine whether the trial court erred,
because we conclude that any error was harmless beyond a reasonable doubt.
See State v. Cooper, 168 N.H. 161, 165 (2015); State v. Ramsey, 166 N.H. 45,
47 (2014).

¶11 To establish harmless error, the State must prove beyond a
reasonable doubt that the error did not affect the verdict. State v. Rouleau, 176 N.H. 400, 407 (2024), 2024 N.H. 2, ¶20. To determine whether the
erroneous admission of evidence affected the verdict, we consider the
alternative evidence presented as well as the character of the erroneously
admitted evidence, and evaluate the totality of the circumstances at trial. Id.
The factors we consider in assessing whether an error did not affect the verdict
include, but are not limited to: (1) the strength of the State’s case; (2) whether
the admitted or excluded evidence is cumulative or inconsequential in relation
to the strength of the State’s case; (3) the frequency of the error; (4) the
presence or absence of evidence corroborating or contradicting the erroneously
admitted or excluded evidence; (5) the nature of the defense; (6) the
circumstances in which the evidence was introduced at trial; (7) whether the
court took any curative steps; (8) whether the evidence is of an inflammatory
nature; and (9) whether the other evidence of the defendant’s guilt is of an
overwhelming nature. Id. at 407-08, 2024 N.H. 2, ¶21. No one factor is
dispositive. Id. at 408, 2024 N.H. 2, ¶21. We may consider factors not listed
above, and not all factors may be implicated in a given case. Id.

¶12 To convict the defendant of felony reckless conduct as charged in
each of the indictments, the State had to prove, as to each victim: (1) that the
defendant recklessly engaged in conduct that placed or may have placed
another person in danger of serious bodily injury by driving his motor vehicle
at a high rate of speed, striking the victim’s motor vehicle (or, with respect to
one of the victims, striking a vehicle which then struck that victim’s vehicle);
and (2) that by using his motor vehicle in such a way, it constituted a deadly
weapon. See RSA 631:3, I, II; RSA 625:11, V. To prove that the defendant
acted with “reckless” mens rea, the State was required to prove that the
defendant was “aware of and consciously disregard[ed] a substantial and
unjustifiable risk” that serious bodily injury “w[ould] result from his conduct.”
RSA 626:2, II(c) (2016); see RSA 631:3, I. “The risk must be of such a nature
and degree that, considering the circumstances known to him, its disregard
constitutes a gross deviation from the conduct that a law-abiding person would
observe in the situation.” RSA 626:2, II(c). Because determining the
defendant’s awareness is a subjective inquiry, it may be proved by any
surrounding facts or circumstances. See State v. Carnevale, 172 N.H. 700, 704
(2019).

¶13 The evidence of the defendant’s reckless conduct in this case is
overwhelming. One witness testified that as the defendant approached the
intersection, he tried to drive between two rows of vehicles. Other witnesses

4
described the defendant’s high rate of speed as he approached the intersection
and the force with which he hit multiple vehicles. The State also introduced a
video of the vehicle driven by the defendant hitting the victims’ vehicles when
they were stopped at a red light. The defendant did not request that the video
be transferred to this court. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248,
250 (2004) (stating that appealing party bears burden of providing a record on
appeal sufficient to decide the questions raised, and that relevant portions of
the evidentiary record not provided on appeal are presumed to support the
result reached by the trial court). The parties agree that the video depicts the
defendant’s car entering the intersection, striking several cars, and flipping
over. Even without testimony from the paramedic and the police officer about
alleged opioid use, the evidence was overwhelming that the defendant was
aware that driving his car at a high rate of speed into an intersection filled with
cars stopped at a red light would pose a substantial and unjustifiable risk to
the occupants of those vehicles, and that disregarding that risk was a gross
deviation from what a law-abiding person would do under the circumstances.
See Carnevale, 172 N.H. at 704; RSA 626:2, II(c). The admitted testimony was
neither lengthy nor inflammatory, and, given the overwhelming evidence of the
defendant’s guilt, was inconsequential.

b. Closing Argument

¶14 The defendant next argues that the trial court erred when it
permitted the State to refer in its closing argument to evidence that the
defendant was under the influence of opioids. He contends that allowing the
State to refer to this evidence in its closing argument “invited an impermissible
amendment of the indictments.” However, defense counsel argued before the
trial court only that any reference to opioid use was not relevant. Because the
defendant did not make the argument in the trial court that he advances on
appeal, the argument is not preserved for our review, and we decline to address
it. See State v. Gross-Santos, 169 N.H. 593, 598 (2017) (explaining that
purpose of preservation rule is to insure that trial court has opportunity to rule
on issues and to correct alleged errors before parties seek appellate review).

c. Unit of Prosecution

¶15 Finally, the defendant argues that the trial court erred when it did
not merge the five reckless conduct charges into one charge for sentencing.
See RSA 631:3. He contends that “[t]he gravamen of RSA 631:3 is a
defendant’s reckless conduct, not the number of persons who may be put at
risk as a result of such conduct.” The State disagrees, arguing that “the unit of
prosecution in a reckless conduct offense is harm-centered, because it is based
upon each individual who is placed in danger of serious bodily injury.”
Therefore, the State contends, the statute authorizes multiple charges of
reckless conduct when multiple individuals are placed in danger of serious
bodily injury by a defendant’s conduct.

5
 [¶16] Multiple punishment cases come in two varieties: first, “double-
description” cases, in which the issue is whether two statutes describe two
separate offenses or are merely different descriptions of the same offense; and
second, “unit-of-prosecution” cases, in which the issue is whether a
defendant’s continuing course of conduct is fragmented into more than one
violation of a single statutory provision. See State v. Lynch, 169 N.H. 689, 706
(2017). Here, to determine whether the defendant is subject to multiple
punishments for the same offense, we must determine the “unit of prosecution”
intended by the legislature. See State v. Ravell, 155 N.H. 280, 282 (2007); see
also State v. Chalpin, 176 N.H. ___, ___ (2024), 2024 N.H. 36, ¶32 (“To
determine whether a defendant is subject to multiple punishments for the
same offense, in violation of the protection provided by the Federal
Constitution, we must determine the unit of prosecution intended by the
legislature.” (quotation omitted)).

¶17 “All provisions” of the Criminal Code “shall be construed according to
the fair import of their terms and to promote justice.” RSA 625:3 (2016). In
doing so, we must first look to the plain language of the statute to determine
legislative intent. State v. McKeown, 159 N.H. 434, 435 (2009). Because the
question before us is one of statutory construction, our review is de
novo. State v. Fogg, 170 N.H. 234, 236 (2017).

¶18 RSA 631:3, I, provides that “[a] person is guilty of reckless conduct if
he recklessly engages in conduct which places or may place another in danger
of serious bodily injury.” See RSA 631:3, II (reckless conduct classified as class
B felony “if the person uses a deadly weapon as defined in RSA 625:11, V”). As
the defendant correctly contends, the statute focuses on the defendant’s
conduct, not on the number of persons who are or who may be placed in
danger as a result of that conduct. The unit of prosecution arises from the
defendant’s continuing course of conduct. The course of conduct is a single
unit of prosecution.

¶19 We find support for this decision in State v. Fogg. The defendant in
Fogg was convicted on two counts of aggravated driving while intoxicated (DWI)
— one count for the injuries sustained by each occupant of the vehicle that the
defendant had hit while driving while intoxicated. Fogg, 170 N.H. at 235;
see RSA 265-A:3 (2014) (amended 2020). At issue on appeal was whether the
language of the aggravated DWI statute supported only one charge. Fogg, 170
N.H. at 235-36. We considered the terms and structure of the statute as a
whole, and concluded that “the legislature did not intend the ‘unit of
prosecution’ under subsection I(b) of the statute to turn upon the number of
persons suffering serious bodily injury in a single collision resulting from
operation of a vehicle on a particular occasion.” Id. at 236-37. We explained:

6
 Our conclusion is based, in large measure, upon the incongruous
outcomes that would result were we to construe the statute in the
manner advocated by the State.

For example, under the State’s view, . . . an intoxicated driver
carrying four high school companions could face four counts of
aggravated DWI, even though he obviously drove the vehicle only
once. In the absence of a very clear indication to the contrary from
statutory text — which we do not find in RSA 265-A:3 — we will
not presume that the legislature intended to impose such harsh
and uneven consequences.

Id. at 237. Although we acknowledged that, if it disagreed with our
interpretation, the legislature could amend the statute, see id., we have seen no
indication in the seven years since we decided Fogg of such disagreement.

¶20 Similarly, here, under the State’s view, had there been a driver and
four passengers in each of the cars stopped at the red light when the defendant
recklessly drove his car at a high rate of speed into the intersection, the
defendant could have faced twenty-five counts of reckless conduct even though
he recklessly drove his car into the intersection only once. By contrast, had
there been but one car with a single driver who was endangered by the
defendant’s reckless conduct, the defendant would have faced but a single
count for the same conduct. In the absence of a clear indication to the
contrary from statutory text — which we do not find in RSA 631:3 — we will
not presume that the legislature intended to impose such uneven
consequences. See Fogg, 170 N.H. at 236. Accordingly, we conclude that it
was error for the trial court to deny the defendant’s motion to merge the
charges for sentencing.

¶21 Of course, if the legislature disagrees with our construction of this
statute, it is free, within constitutional limits, to amend it as it deems fit. See
id.

¶22 For the above reasons, we affirm the defendant’s conviction on the
reckless conduct charges but reverse its decision to deny the defendant’s
motion to merge the charges for sentencing, and remand.

Affirmed in part; reversed in
part; and remanded.

BASSETT and DONOVAN, JJ., concurred; HANTZ MARCONI, J., sat for
oral argument but did not participate in the final vote.

7