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State v. Gordon4/15/2002
Argued: January 15, 2002
The defendant, Albert Gordon, appeals his conviction for aggravated driving of an off-highway recreational vehicle while intoxicated (OHRV-DWI). RSA 215-A:11, II(a)(1) (2000). He contends that the Trial Court (Murphy, J.) erred in: (1) concluding that aggravated OHRV-DWI is a lesser-included offense of negligent homicide; (2) amending the jury instructions to include the lesser-included offense of aggravated OHRV-DWI after the close of the evidence, prior to final arguments; (3) denying his motion for a directed verdict on his negligent homicide indictment; (4) denying his motion for a judgment notwithstanding the verdict; (5) denying his motion in limine seeking to exclude evidence of his intoxication; and (6) ruling that evidence of his blood alcohol level at the time of the accident was admissible. We affirm.
The defendant was charged with negligent homicide, RSA 630:3, II (1996), by an indictment alleging that he caused the death of Raymond Baker while operating a Jeep under the influence of intoxicating liquor. Prior to trial, the defendant moved in limine to exclude certain evidence regarding his blood alcohol level, claiming collateral estoppel because a previous administrative license suspension (ALS) hearing determined that there was insufficient evidence of his intoxication at the time of the incident. The trial court denied the motion.
At the close of the State's case, the defendant moved for a directed verdict of acquittal on the ground that there was insufficient evidence presented to establish that the defendant's intoxication caused the accident. The court denied the motion.
The jury acquitted the defendant of the charge of negligent homicide, but convicted him of aggravated OHRV-DWI. The defendant moved for judgment notwithstanding the verdict on the ground that the evidence presented at trial was insufficient to establish that his intoxication caused the accident. The trial court denied the motion.
The first issue raised by the defendant is whether the trial court erred by instructing the jury that aggravated OHRV-DWI is a lesser-included offense of negligent homicide. It is well-established that a contemporaneous objection is required to preserve an issue for appeal, particularly where the alleged error involves a jury instruction. See State v. McCabe, 145 N.H. 686, 690 (2001). Our review of the transcript shows that during an exchange with defense counsel about instructing the jury on aggravated OHRV-DWI, the trial judge said, "But it's—it's still a lesser included— [offense]." At that point, defense counsel responded "Yeah, but you—." The prosecution argues that this comment constituted a concession that aggravated OHRV-DWI is a lesser-included offense of negligent homicide. We need not decide whether the defendant conceded this issue, but merely whether he objected to the aggravated OHRV-DWI jury instruction on the ground that aggravated OHRV-DWI is not a lesser-included offense of negligent homicide. A fair reading of the transcript indicates that he did not. Therefore, we need not decide whether OHRV-DWI is a lesser-included offense of negligent homicide because the issue was not properly preserved for appellate review. See State v. Goodman, 145 N.H. 526, 531 (2000).
In discussing this issue in his brief, the defendant also suggests that the jury instructions misstated the elements of aggravated OHRV-DWI because the court should have limited the instruction on serious bodily injury to Mr. Baker's injury. Our review of the transcript indicates that the defense also failed to raise this point at trial. Therefore, we will not address this argument. See id.
The second issue raised
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