State v. Carnevale

Decision Date26 November 2019
Docket NumberNo. 2018-0292,2018-0292
Citation172 N.H. 700,234 A.3d 239
Parties The STATE of New Hampshire v. Henry CARNEVALE
CourtNew Hampshire Supreme Court

Gordon J. MacDonald, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.

Elliott Jasper Auten Shklar & Ranson, LLP, of Newport (Michael C. Shklar on the brief and orally), for the defendant.

HICKS, J.

The defendant, Henry Carnevale, appeals his conviction by a jury in Superior Court (Tucker, J.) for felony reckless conduct, see RSA 631:3, I, II (2016), with a deadly weapon, see RSA 625:11, V (2016), and conduct after an accident, see RSA 264:25 (2014) (amended 2017, 2018). On appeal, he argues that the trial court erred by denying his motions for judgment notwithstanding the verdict (JNOV) on the basis that there was insufficient evidence that he acted "recklessly" and that his automobile constituted a "deadly weapon."

He also argues that the trial court erred by denying his motion for a new trial based upon ineffective assistance of counsel. We affirm.

The jury could have found the following facts. The defendant, driving north on Interstate 89 in Grantham in his 7,300-pound sport utility vehicle, began tailgating a Volkswagen Jetta transporting the victim (driver of the VW) and his three-year-old son. Approaching a construction area, the defendant made a hand gesture and moved into the right lane, passing extremely close to the rear of the VW. The defendant abruptly cut back into the left lane, causing the rear of the SUV to hit the front of the VW. The victim was forced to brake heavily and veer right, lost control of his car, and immediately crashed into a guardrail located above an underpass at approximately 65-70 miles per hour. After the crash, there were VW parts, fluids, and tire marks all over the highway. The victim and his son were transported by ambulance to the hospital. After the accident, the defendant drove away from the scene, but police identified his vehicle's license plate and arrested him later that day.

Video cameras located in the front and back of the VW captured the events above. Video clips from both cameras were admitted as full exhibits and played multiple times to the jury throughout the trial.

I. Sufficiency of the Evidence

The defendant argues that the trial court erred in denying his motion for JNOV based upon the sufficiency of the evidence. A motion for JNOV presents a question of law, which we review de novo. Halifax-American Energy Co. v. Provider Power, LLC, 170 N.H. 569, 576, 180 A.3d 268 (2018). On reviewing a ruling for JNOV, we will uphold the jury's verdict unless no rational trier of fact could find guilt beyond a reasonable doubt, considering all the evidence and all reasonable inferences therefrom in the light most favorable to the State. See State v. Spinale, 156 N.H. 456, 464, 937 A.2d 938 (2007). The trial court cannot weigh the evidence or inquire into the credibility of the witnesses, and if the evidence adduced at trial is conflicting, or if several reasonable inferences may be drawn, the motion should be denied. Id. at 463, 937 A.2d 938.

To convict the defendant of felony reckless conduct as charged in the indictment, the State had to prove: (1) he recklessly engaged in conduct that placed or may have placed another person in danger of serious bodily injury by operating his SUV erratically and aggressively cutting off the victim's vehicle; and (2) by using his SUV in such a fashion, it constituted a deadly weapon. RSA 631:3, I, II; see RSA 625:11, V. On appeal, the defendant asserts that the evidence was insufficient to prove that he acted with a "reckless" mens rea and that he used his SUV as a deadly weapon.

A. "Reckless" Mens Rea

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. Hull, 149 N.H. 706, 713, 827 A.2d 1001 (2003). "In addition, the State had to show that the defendant's disregard for the risk of injury to another was a gross deviation from the regard that would be given by a law-abiding citizen." Id. "This is a subjective inquiry" that "does not depend upon the actual harm resulting from the defendant's conduct." Id. "Nor does it depend upon whether the defendant anticipated the precise risk or injury that resulted." Id. Rather, in this case, the jury had to find that the defendant acted erratically and aggressively by cutting off the victim's car with his SUV and that his conduct caused a substantial and unjustifiable risk of injury to the victim and his son. See id. "Then the jury had to find that the defendant's conduct in creating that risk was a gross deviation from that of a law-abiding person," because that person would not have driven so erratically or aggressively and would not have cut off the victim's car. Id. Because determining the defendant's awareness is a subjective inquiry, it may be proved by any surrounding facts or circumstances. Id. The jury could have considered the defendant's conduct before and after the accident, including the fact that he left the scene without stopping. See id.

Viewing all of the evidence and the reasonable inferences therefrom in the light most favorable to the State, we hold that a rational trier of fact could have found, beyond a reasonable doubt, that the defendant acted with a "reckless" mens rea. A rational trier of fact could have found that the defendant's SUV — weighing 7,300 pounds — was much larger than the victim's Volkswagen Jetta, that the defendant tailgated the victim before passing him in the right lane, that both cars were approaching a construction area, that the defendant suddenly changed lanes so as to pass the victim and then abruptly cut in front of the victim's vehicle, hitting the front of the victim's vehicle in the process, and that the defendant's conduct caused the victim to brake hard, lose control of his car, and crash into a guardrail at 65-70 miles per hour.

From the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the State, a rational trier of fact could have found, beyond a reasonable doubt, that the defendant's conduct constituted a gross deviation from that of a law-abiding citizen because a law-abiding citizen would not have returned to the left lane until safely clear of the victim's vehicle. See id. at 707, 714, 827 A.2d 1001 (finding sufficient evidence for reckless conduct when defendant drove so close to a police officer conducting a traffic stop that he hit the police officer with his side mirror); see also RSA 265:18 (2014) (detailing the procedure for overtaking a vehicle on the left). Likewise, a rational trier of fact could have found, beyond a reasonable doubt, that the defendant's erratic and aggressive driving created a substantial and unjustifiable risk of injury to the victim and his son. See Hull, 149 N.H. at 714, 827 A.2d 1001.

Additionally, a rational trier of fact could have found, beyond a reasonable doubt, that the defendant was aware of, and consciously disregarded, the substantial and unjustifiable risk that his conduct created. The videos show the defendant move into the right lane, pass extremely close to the rear of the victim's vehicle, and then abruptly cut back into the left lane, causing the rear of the SUV to hit the front of the victim's vehicle. A rational trier of fact could have found that the defendant's abrupt maneuvers, causing his SUV to hit the VW, demonstrated that he was aware of, and consciously disregarded, a substantial and unjustifiable risk. Finally, after the accident, the defendant left the scene. A rational trier of fact could have found that such evidence demonstrated the defendant's consciousness of guilt. See State v. Torrence, 134 N.H. 24, 27, 587 A.2d 1227 (1991) ("It is beyond dispute that evidence of post-offense flight is probative on the issue of the defendant's consciousness of guilt.").

Based upon all of the above evidence and the reasonable inferences to be drawn therefrom, viewed in the light most favorable to the State, we hold that a rational trier of fact could have found, beyond a reasonable doubt, that the defendant acted with "reckless" intent. Because the evidence adduced at trial regarding the defendant's "reckless" intent was solely circumstantial, in order to prevail on appeal, "the defendant must establish that the evidence does not exclude all reasonable conclusions except guilt." State v. Germain, 165 N.H. 350, 361, 79 A.3d 1025 (2013), modified on other grounds by State v. King, 168 N.H. 340, 345, 127 A.3d 1255 (2015). "The proper analysis is not whether every possible conclusion consistent with innocence has been excluded, but, rather, whether all reasonable conclusions based upon the evidence have been excluded." Id. To the extent that the defendant argues that other inferences could have been drawn from the evidence, we disagree. First, the defendant argues that it was unforeseeable that the victim would lose control of his vehicle and crash. For the reasons set forth above, we disagree. Second, the defendant argues that the State failed to show awareness because he denied having any knowledge of the accident when he was arrested. This argument is similarly unavailing because the defendant's statements at the time of arrest were not put forth as evidence for the jury to consider. Lastly, the defendant argues that it is unlikely that someone who knew he fled an accident would park his car in his driveway and not hide it from view. Whether the defendant knew that he fled an accident is not the issue on appeal. A rational trier of fact could find that the defendant acted with "reckless" intent whether or not he knew he left the scene of an accident.

B. Deadly Weapon

The defendant next argues that the State failed to show that he...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT