State of New Hampshire v. Myrom Eliam Rodriguez-Nunez

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0633, State of New Hampshire v. Myrom
Eliam Rodriguez-Nunez, the court on August 22, 2024, issued
the following order:

The court has reviewed the written arguments and the record submitted
on appeal, and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The defendant, Myrom Eliam Rodriguez-Nunez, appeals his
convictions, following a jury trial in Superior Court (Attorri, J.), of felony
reckless conduct and endangering the welfare of a child. See RSA 631:3
(2016); RSA 639:3 (2016). He argues that the trial court erred in: (1) answering
questions from the jury during deliberations regarding conduct not stated in
the indictment; and (2) denying his request to make a record of the chambers
conference discussing the court’s proposed answer. We affirm.

The defendant first argues that the trial court’s answer to questions from
the jury during deliberations impermissibly amended the reckless conduct
indictment. “The response to a jury question is left to the sound discretion of
the trial court.” State v. Poole, 150 N.H. 299, 301 (2003) (quotation omitted).
We review the trial court’s answer to a jury question under our unsustainable
exercise of discretion standard. State v. Kelly, 160 N.H. 190, 195 (2010).
Under this standard, the defendant must show that the Court’s decision was
“clearly untenable or unreasonable to the prejudice of his case.” State v.
Lambert, 147 N.H. 295, 296 (2001).

The indictment charged the defendant with engaging in reckless conduct
by “driving his vehicle at speeds greater than the posted speed, passing other
motor vehicles on the left side, crossing the roadway’s double yellow line,
driving into oncoming motor vehicle traffic, [and] forcing other drivers to take
evasive action to avoid a collision, while fleeing a motor vehicle accident he was
involved in.”

At trial, a witness testified that, shortly after the defendant engaged in
the charged conduct, and before he was stopped by police, the defendant drove
his vehicle over the grassy area of a Sal’s Pizza parking lot. The State
introduced a video showing the defendant’s car driving over the grassy area.
The defendant did not object to the admission of the video or seek a limiting
instruction.
 During deliberations, the jury asked the following question:

Does the video apply to the reckless conduct charge? The wording
of the charge does not specifically mention driving on something
other than a road. It only refers to crossing the roadway’s double
yellow line. The reckless conduct charge doesn’t mention the Sal’s
Pizza parking lot incident.

The court held an unrecorded conference in chambers to discuss its
response to the jury’s question. Over the defendant’s objection, the trial court
answered: “Yes. You may consider the video in determining whether the
defendant acted recklessly.”

The defendant argues that the trial court’s answer impermissibly
amended the indictment because his conduct in driving over the grassy area of
the Sal’s Pizza parking lot was not alleged in the indictment. As the State
points out, the defendant did not articulate the grounds for his objection on the
record, following the chambers conference. We will assume, however, that the
defendant preserved this issue for review.

“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.” RSA
631:3, I. To prove that the defendant acted with a “reckless” mens rea, the
State had to show that he was aware of, but consciously disregarded, a
substantial, unjustifiable risk that serious bodily injury would result from his
conduct. State v. Carnevale, 172 N.H. 700, 704 (2019); RSA 626:2, II(c) (2016).
Because determining the defendant’s awareness is a subjective inquiry, it may
be proved by any surrounding facts or circumstances. State v. Carnevale, 172
N.H. at 704. In this case, the jury could have considered the defendant’s
conduct in driving over the grassy area immediately after engaging in the
charged conduct to determine whether he was acting recklessly when
committing the charged conduct. See id. Accordingly, we cannot conclude
that the trial court impermissibly amended the reckless conduct indictment or
unsustainably exercised its discretion by instructing the jury that it could
consider the video in determining whether the defendant acted recklessly. See
State v. Kelly, 160 N.H. at 195.

The defendant next argues that the trial court erred in denying his
request for a hearing to make a record of the chambers conference during
which he objected to the trial court’s proposed answer. Because the defendant
raises this issue only to show this court, if necessary, that he preserved his

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arguments for appellate review, and because we have assumed that the
defendant’s arguments were preserved for review, we need not address this
issue.

Affirmed.

MacDonald, C.J., and Bassett, Donovan, and Countway, JJ., concurred.

Timothy A. Gudas,
Clerk

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