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State v. McKenna4/3/1998
t's second claim was that the trial Justice erred in denying his motion for a new trial. In ruling on a motion for a new trial, "the trial Justice acts as a thirteenth juror and exercises independent Judgement on the credibility of witnesses and on the weight of the evidence." State v. Snow, 670 A.2d 239, 243 (R.I. 1996) (quoting State v. Banach, 648 A.2d 1363, 1367 (R.I. 1994)). "If, after an independent review of the evidence, the trial Justice makes the same determination as the jury, he or she should deny the motion for a new trial." Snow, 670 A.2d at 244. "Whenever the trial Justice has followed the requisite procedure and articulated a sufficient rationale for denying a motion for a new trial, the decision will not be disturbed unless the trial Justice has `overlooked or misconceived material evidence relating to a critical issue or was otherwise clearly wrong.'" Id. (quoting State v. Caruolo, 524 A.2d 575, 585 (R.I. 1987)).
The trial Justice found this case to hinge on the credibility of the witnesses and the expert testimony that was presented at trial. After weighing the evidence and carefully considering the possible inferences therefrom, the trial Justice concluded that the jury's verdict was supported by the evidence. The trial Justice completed the requisite inquiry and neither overlooked nor misconceived material evidence. Therefore, we affirm the denial of defendant's motion for a new trial.
The defendant's third claim of error was that the jury failed to consider the margin of error of the breathalyzer machine properly. If the jury had applied the margin of error to the test results obtained in this case, both breathalyzer readings would be below 0.10 percent and, defendant argued, no conviction would be possible. We reject this contention because it is premised upon the assumption that a defendant whose BAC is below 0.10 percent cannot be found guilty of driving while under the influence. As we noted ante, DiCicco held that a BAC above 0.10 percent is not an essential element of the offense with which defendant was charged, and a BAC below 0.10 percent does not shield any defendant from a conviction of violating § 31-27-2.
The defendant's final claim of error was that he did not receive a fair trial because the prosecutor delayed the presentation of his closing argument for three days. This claim is not properly before us, however, because no objection was made by defense counsel at the time of the trial Justice's ruling that permitted the delay. Under the raise-or-waive rule, we shall not consider an issue raised for the first time on appeal. State v. Rivera, 640 A.2d 524, 526-27 (R.I. 1994). For the foregoing reasons the defendant's appeal is denied and dismissed. The Judgement of conviction appealed from is affirmed, and the papers in this case are remanded to the Superior Court.
Justice Bourcier did not participate.
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