State v. Cummings

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-northern judicial district
Case No. 2023-0166
Citation: State v. Cummings, 2025 N.H. 15

THE STATE OF NEW HAMPSHIRE

v.

CHRISTIAN CUMMINGS

Argued: January 16, 2025
Opinion Issued: April 1, 2025

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

Rothstein Law LLC, of Exeter (David M. Rothstein on the brief), and
Matthew McNicoll, assistant appellate defender, of Concord, orally, for the
defendant.

DONOVAN, J.

¶1 Following a jury trial in Superior Court (Anderson, J.), the
defendant, Christian Cummings, was convicted of negligent homicide for the
death of his 17-month-old daughter, K.C.1 See RSA 630:3, I (2016). On
appeal, the defendant argues that: (1) the trial court committed plain error by
informing the jury that it could convict him of negligent homicide by finding
that urosepsis was the sole cause of K.C.’s death; (2) alternatively, his trial
counsel’s failure to object to the court’s response constituted ineffective
assistance of counsel; and (3) the trial court erred by denying his motion to
dismiss based upon the insufficiency of the evidence. We conclude that the
trial court did not commit plain error in responding to the jury’s question, trial
counsel did not render ineffective assistance of counsel by failing to object to
the court’s answer, and the trial court properly denied the defendant’s motion
to dismiss because the State introduced sufficient evidence to convict the
defendant of negligent homicide beyond a reasonable doubt. Accordingly, we
affirm.

I. Facts

¶2 The jury could have found the following facts. The defendant lived
with his partner and their daughter, K.C., who was born with just one kidney,
in a mobile home on property owned by the defendant’s grandparents. The
New Hampshire Division for Children, Youth and Families (DCYF) prohibited
K.C. from living in the primary house on the property owned by the defendant’s
grandparents. However, in early 2019, the defendant, K.C., and K.C.’s mother
moved into a bedroom in the primary house because the mobile home had no
heat, rendering it uninhabitable in the winter. The primary house, in which
eight people and numerous pets lived, “was in a state of squalor.” K.C. slept in
a dirty baby bouncer in the bedroom because she had vomited in her play
place and the defendant did not know how to clean it. The bedroom was
infested with flies, and a caged chinchilla was also kept in the room.

¶3 Once K.C. began residing in the primary house, one of the
defendant’s family members observed that she seemed “a little sluggish.” She
also had a serious lice infestation and a stomach virus that caused her to
vomit. Another family member described K.C. coughing “[l]ike a mountain lion
screaming” for weeks. Shortly before K.C.’s death, one of the defendant’s
brothers observed her breathing rapidly for a few hours. When the brother
expressed his concern about K.C.’s condition, the defendant told his brother to
“shut up.”

¶4 In the middle of the night on February 14, 2019, K.C.’s mother
screamed that K.C. was not breathing. K.C.’s grandmother, and later a first-
responding police officer, performed CPR. A paramedic observed that K.C. was
limp, lifeless, and very pale with bluish lips. He also noted that K.C. had “bugs
on her” and a “brown substance in her ears.” The paramedics took K.C. to the

1 The jury also returned guilty verdicts of reckless conduct and child endangerment. The
defendant does not challenge these verdicts on appeal.

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emergency room at a nearby hospital, where she was pronounced dead. She
was 17 months old.

¶5 As relevant to this appeal, a Hillsborough County Grand Jury
indicted the defendant on two counts of negligent homicide. The first negligent
homicide count alleged that urosepsis was the cause of K.C.’s death. The
second count alleged that a combination of “urosepsis, dehydration, and/or
electrolyte imbalance” caused her death. During trial, the State presented
multiple witnesses, including the defendant’s family members, police officers,
and a paramedic. It also presented Dr. Christine James, a former New
Hampshire Associate Medical Examiner and an expert in forensic, anatomical,
and clinical pathology, who conducted K.C.’s autopsy. She explained how the
“copious” number of lice caused iron deficiency anemia, which resulted in K.C.
“feeling run-down, lethargic, tired, [and] drained.” She also testified that K.C.’s
electrolytes, such as her sodium, chloride, and urea nitrogen, were all elevated
and consistent with dehydration. K.C.’s dark brown urine also tested positive
for E. coli, demonstrating that she had a urinary tract infection (UTI).
According to Dr. James, K.C.’s UTI could have been caused by improper
hygiene, such as sitting in a dirty diaper. She also testified that K.C.’s UTI
spread from K.C.’s urinary tract to other organs. Dr. James testified that K.C.
had probable urosepsis, explaining that a conclusive sepsis diagnosis could
only be made in living people based on very specific criteria. Ultimately, Dr.
James opined that K.C.’s UTI and probable urosepsis, together with
dehydration and iron deficiency anemia, caused her death.

¶6 After the State rested, the defendant moved to dismiss both negligent
homicide indictments, arguing that the State introduced insufficient evidence
to support a conviction on either charge beyond a reasonable doubt. The court
dismissed the count that alleged that urosepsis was the sole cause of death but
denied the motion seeking to dismiss the second count.

¶7 The defense’s case consisted solely of testimony from Dr. Thomas
Andrew, a former New Hampshire Chief Medical Examiner and an expert in
forensic medicine and forensic pathology. He disagreed with the conclusion of
the State’s expert regarding K.C.’s cause of death. More specifically, he
disagreed with the diagnosis of probable urosepsis because K.C.’s blood did not
contain bacteria. Dr. Andrew also disagreed that a UTI and the tissue slides
that he and Dr. James reviewed were sufficient to conclude that K.C. had
sepsis. Instead, he opined that had he conducted K.C.’s autopsy, he would
have listed K.C.’s cause of death as sudden unexplained death in childhood
(SUDC). Dr. Andrew also stated that he would have listed a UTI with E. coli “as
an extrinsic factor but not causative or contributory” to death.

¶8 During its deliberations, the jury submitted a question to the trial
court asking: “Does the cause of death have to be urosepsis, dehydration,
and/or electrolyte imbalance, all three, or any of the three?” The court

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consulted with the parties and by agreement informed the jury that it could
find that the cause of death was “any one or any combination of [urosepsis,
dehydration, and electrolyte imbalance].” The jury then convicted the
defendant, and this appeal followed.

II. Analysis

¶9 On appeal, the defendant argues that the trial court’s answer to the
jury question constitutes reversible error because the response allowed the jury
to rely upon urosepsis as the sole cause of K.C.’s death. According to the
defendant, that answer “revived the previously dismissed indictment.” Because
the defendant’s trial counsel did not object to the court’s answer, the defendant
raises this argument as plain error.

¶10 The plain error rule is “used sparingly” and is “limited to those
circumstances in which a miscarriage of justice would otherwise result.” State
v. Rawnsley, 167 N.H. 8, 11 (2014). To find plain error: (1) there must be error;
(2) the error must be plain; and (3) the error must affect substantial rights.
State v. Leroux, 175 N.H. 204, 208 (2022). If all three conditions are met, we
may exercise our discretion to correct a forfeited error only if the error meets a
fourth criterion: the error must seriously affect the fairness, integrity, or public
reputation of judicial proceedings. Id. at 208-09. The defendant bears the
burden of demonstrating plain error. State v. Mueller, 166 N.H. 65, 70 (2014).

¶11 Here, even if we assume that the trial court erred, and its error was
plain, we conclude that any such error fails to satisfy the third factor of the
test. Generally, to prove that an error affected substantial rights, the
defendant must show that the error was prejudicial, i.e., that it affected the
outcome of the proceeding. Id. at 70. “We will find prejudice under the third
prong when we cannot confidently state that the jury would have returned the
same verdict in the absence of the error.” Id.

¶12 The defendant contends that the answer was prejudicial because
the answer permitted a “very real prospect” that “at least one juror relied on
urosepsis as the sole cause of death.” In light of the significant evidence that
multiple medical conditions collectively contributed to K.C.’s death, we are
unpersuaded. At trial, Dr. James testified that the combination of iron
deficiency anemia, probable urosepsis, dehydration, and an electrolyte
imbalance caused K.C.’s death. K.C.’s lice infestation resulted in anemia,
leaving her feeling “run-down, lethargic, tired, [and] drained.” Then, she
contracted a UTI that went unrecognized and untreated, ultimately spreading
through her body. As a result, Dr. James opined that K.C. developed “probable
sepsis,” explaining that a conclusive sepsis diagnosis could only be made in
living people based on very specific criteria. According to Dr. James, K.C.’s UTI
caused her to become dehydrated, as evidenced by her dark brown urine and
electrolyte imbalance. K.C. “had elevated sodium, elevated chloride, and

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elevated urea nitrogen, which were consistent with dehydration and possible
renal failure.” Moreover, Dr. Andrew disagreed with the conclusion that K.C.
had probable urosepsis, further demonstrating the improbability that a juror
found that urosepsis alone caused K.C.’s death. At the beginning of its closing
argument, the State reiterated the point that K.C.’s death resulted from “some
combination of urosepsis, dehydration, and an electrolyte imbalance.” Given
the evidence that all of K.C.’s medical conditions combined to cause her death,
we conclude that even if the trial court erred, the jury would have returned the
same verdict. Accordingly, we conclude that any error associated with the trial
court’s response to the jury question did not prejudice the defendant’s case.

¶13 Next, the defendant asserts that his trial counsel’s failure to object
to the court’s answer constituted ineffective assistance of counsel. More
specifically, he contends that by not objecting to the court’s proposed answer
or requesting a specific instruction, his trial counsel “revived the allegation,
and expanded the grounds on which the jury could convict [him].” Although
“we maintain a strong preference for collateral review of ineffectiveness claims,”
we permit direct appellate review in the “extraordinary case” where “the factual
basis of the claim appears indisputably on the trial record.” State v.
Thompson, 161 N.H. 507, 527 (2011) (quotation omitted). Such cases may
include the “failure to object to an instruction.” Id. at 526-27. Because the
defendant argues that this case presents this very scenario, we will treat his
ineffective assistance of counsel argument as reviewable on direct appeal.

¶14 The defendant raises his ineffective assistance of counsel claim
under the Federal Constitution and not the State Constitution. The Sixth and
Fourteenth Amendments to the United States Constitution guarantee a
criminal defendant reasonably effective assistance of counsel. U.S. CONST.
amends. VI, XIV. To prevail upon a claim of ineffective assistance of counsel, a
defendant must show, “first, that counsel’s representation was constitutionally
deficient and, second, that counsel’s deficient performance actually prejudiced
the outcome of the case.” Id. at 528 (quotation omitted). To satisfy the first
prong, the defendant must show that counsel’s representation fell below an
objective standard of reasonableness. State v. Collins, 166 N.H. 210, 212
(2014). To satisfy the second prong, the defendant must establish that there is
a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. Id. at 213.

¶15 Here, we need not decide whether trial counsel’s failure to object
fell below an objective standard of reasonableness, because we are not
persuaded that any failure to object prejudiced the outcome of the case. In
light of the significant evidence concerning the severity of K.C.’s multiple
medical conditions, we are confident that the jury would have returned the
same verdict in the absence of counsel’s failure to object. During Dr. James’s
testimony, she specified that no factor alone caused K.C.’s death. Rather, she
opined that the various medical conditions combined to cause K.C.’s death. In

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response to a question from the State asking how the factors “work[ed] together
to cause death,” she explained that K.C.’s “sodium level [was] exceptionally
high. So that urosepsis with the dehydration is her cause of death” along with
“iron deficiency anemia due to the lice because she was already at a weakened
state because of that infestation.” Therefore, we cannot conclude that there
exists a reasonable probability that, but for the failure to object, the jury’s
verdict would have differed.

¶16 Lastly, the defendant argues that the trial court erred when it
denied the defendant’s motion to dismiss the negligent homicide charge that
alleged that he “allow[ed] for circumstances that resulted in . . . K.C.
succumbing to death by urosepsis, dehydration, and/or electrolyte imbalance.”
He asserts that the State “failed to prove beyond a reasonable doubt that [his]
criminal conduct caused [K.C.’s] death.”

¶17 To prevail on his challenge to the sufficiency of the evidence, the
defendant must demonstrate 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. Littlefield, 152 N.H. 331, 350 (2005). Under this standard, however, we still consider the
evidence in the light most favorable to the State and examine each evidentiary
item in context, not in isolation. Id.

¶18 To convict the defendant of negligent homicide, the State had to
prove beyond a reasonable doubt that the defendant negligently caused K.C.’s
death. See RSA 630:3, I. The Criminal Code defines negligence as follows:

A person acts negligently with respect to a material element of an
offense when he fails to become aware of a substantial and
unjustifiable risk that the material element exists or will result
from his conduct. The risk must be of such a nature and degree
that his failure to become aware of it constitutes a gross deviation
from the conduct that a reasonable person would observe in the
situation.

RSA 626:2, II(d) (2016). Because the issue of criminal negligence is an
objective test, the defendant’s “carelessness must be such that its seriousness
would be apparent to anyone who shares the community’s general sense of
right and wrong.” Littlefield, 152 N.H. at 351 (quotation omitted). As a result,
“[c]riminally negligent homicide requires not only a failure to perceive a risk of
death, but also some serious blameworthiness in the conduct that caused it.”
Id. (quotation omitted).

¶19 The evidence demonstrated that the defendant failed to appreciate
the severity of K.C.’s health risks and failed to seek appropriate treatment for
her. Good hygiene and avoiding infection were particularly important for K.C.

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because she was born with only one kidney. Nonetheless, the defendant
moved K.C. into his grandparents’ squalid house — despite DCYF’s prohibition
— where she slept in a dirty baby bouncer. When a first responder examined
K.C., he found that her fingernails were “extremely dirty” with a brown
substance in her ears and under her neck.

¶20 K.C. also experienced health problems in the weeks leading up to
her death. She had a severe lice infestation, and the defendant’s brother
testified that K.C. appeared “a little sluggish.” Dr. James explained how lice
can cause sluggishness and generally weaken a child. K.C.’s UTI spread to her
organs and other parts of her body, worsening into probable urosepsis and
contributing to K.C.’s dehydration. Moreover, K.C.’s grandfather testified that
K.C. had a stomach virus and vomited. The defendant’s brother also testified
that K.C. was also breathing quickly, which could have been caused by the
stress of an acute illness. However, when he raised his concern for K.C.’s rapid
breathing to the defendant, the defendant told him to “shut up.” K.C.’s cousin
testified that K.C. coughed “[l]ike a mountain lion screaming” for weeks.
Despite these numerous health concerns — which were apparent to other
family members — the defendant did not attempt to seek medical care for his
daughter. Viewing all the evidence and all reasonable inferences from it in the
light most favorable to the State, we conclude that the State presented
sufficient evidence to convict the defendant of negligent homicide beyond a
reasonable doubt. See id. at 350.

III. Conclusion

¶21 For the foregoing reasons, we need not decide whether the trial
court’s response to the jury’s question was plain error because we conclude
that the court’s response did not affect the outcome of the trial. We also
conclude that the defendant’s trial counsel did not render ineffective assistance
of counsel when he failed to object to the court’s response to the jury’s question
because the failure did not prejudice the result. Finally, we conclude that the
State presented sufficient evidence that the defendant committed negligent
homicide. Accordingly, we affirm.

Affirmed.

BASSETT and COUNTWAY, JJ., concurred.

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