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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Sullivan
No. 2018-0292


                       THE STATE OF NEW HAMPSHIRE

                                         v.

                               HENRY CARNEVALE

                          Argued: September 12, 2019
                       Opinion Issued: November 26, 2019

      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 (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 (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.

      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.


                                       2
State v. Hull, 149 N.H. 706, 713 (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 (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.




                                         3
       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 (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 (2013), modified on other grounds by State v. King, 168 N.H. 340,
345 (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 operated
his vehicle as a deadly weapon. A deadly weapon is defined in RSA 625:11, V
as “any firearm, knife or other substance or thing which, in the manner it is
used, intended to be used, or threatened to be used, is known to be capable of


                                       4
producing death or serious bodily injury.” “Many innocuous everyday objects
become deadly weapons when they are put to assaultive uses.” Hull, 149 N.H.
at 714. Whether the defendant operated his vehicle in a manner that rendered
the vehicle a deadly weapon is a question of fact for the jury to decide based on
the totality of the circumstances. Id. at 715. “We have never required that an
object be intrinsically capable of causing death or injury.” Id. “Nor have we
required that an object actually cause death or injury.” Id.

       From the evidence and all reasonable inferences therefrom, viewed in the
light most favorable to the State, a rational trier of fact could have found,
beyond a reasonable doubt, that tailgating the victims, abruptly changing
lanes, cutting off the victims, and hitting the front of the victim’s car with the
back end of a 7,300-pound SUV, causing the victim to brake hard, lose control,
and crash into a guardrail at 65-70 miles per hour, constituted a manner of
use that is “known to be capable of producing death or serious bodily injury.”
RSA 625:11, V. Contrary to the defendant’s assertions, the totality of the
evidence, viewed in the light most favorable to the State, together with the
reasonable inferences to be drawn therefrom, was sufficient for a rational trier
of fact to find, beyond a reasonable doubt, that he used his vehicle as a deadly
weapon. See Hull, 149 N.H. at 715.

       The defendant’s additional arguments concerning the use of his vehicle
as a deadly weapon are not preserved for appeal. First, the defendant argues
that RSA 625:11, V requires the State prove that he intended to use his vehicle
to cause death or serious bodily injury and the State failed to do so. Second,
the defendant argues that RSA 625:11, V includes only those actions where
death or serious bodily injury is “more than likely to occur” and the State failed
to show that death or serious bodily injury was more than likely to result from
his conduct. These arguments concern interpretations of RSA 625:11, V. In
the trial court, however, the defendant asserted only that the evidence was
insufficient to support his convictions; therefore, his statutory interpretation
arguments are waived. See State v. Dodds, 159 N.H. 239, 243-44 (2009)
(holding that the defendant waived a statutory interpretation argument on
appeal because, in the trial court, the defendant argued only that the evidence
was insufficient to support a conviction). During oral argument, the defendant
raised, for the first time, an argument that vehicles were not contemplated by
the legislature to be regarded as deadly weapons under RSA 625:11, V.
Because this argument was not briefed to this court, or argued before the trial
court, we decline to address it. Aubert v. Aubert, 129 N.H. 422, 428 (1987).

   II. Ineffective Assistance of Counsel

      The defendant next argues that the trial court erred when it denied his
motion for a new trial based upon ineffective assistance of counsel.
Specifically, he argues that trial counsel should have retained a second
accident reconstruction expert to support the defense’s theory of pure accident.


                                           5
In order to trigger a State constitutional analysis, “the defendant must raise the
State constitutional issue below” and “the defendant’s brief must specifically
invoke a provision of the State Constitution.” State v. Dellorfano, 128 N.H.
628, 632 (1986). We confine our analysis to the defendant’s federal
constitutional claim because he has failed to cite a specific provision of the
State Constitution on appeal.

       For the defendant to prevail on an ineffective assistance of counsel claim,
he must show, first, that counsel’s representation was constitutionally deficient
(performance prong) and, second, that such deficient performance prejudiced
the outcome of his case (prejudice prong). Strickland v. Washington, 466 U.S.
668, 687 (1984). To satisfy the performance prong, “the defendant must show
that counsel’s representation fell below an objective standard of
reasonableness.” Id. at 688. To satisfy the prejudice prong, “[t]he defendant
must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. at 694.

       Both the performance and prejudice prongs of an ineffectiveness inquiry
are mixed questions of law and fact. Id. at 698. “Therefore, we will not disturb
the trial court’s factual findings unless they are not supported by the evidence
or are erroneous as a matter of law, and we review the ultimate determination
of whether each prong is met de novo.” State v. Whittaker, 158 N.H. 762, 768
(2009) (citation omitted). Because we hold that trial counsel’s performance was
reasonable under all of the circumstances, we need not address the question of
prejudice to the defendant. See Strickland, 466 U.S. at 687.

      Whether performance was deficient depends on “whether counsel’s
assistance was reasonable considering all the circumstances.” Id. at 688.
Because, with hindsight, it can be easy to second-guess decisions that prove
unsuccessful, “[j]udicial scrutiny of counsel’s performance must be highly
deferential.” Id. at 689.

      A fair assessment of attorney performance requires that every
      effort be made to eliminate the distorting effects of hindsight, to
      reconstruct the circumstances of counsel’s challenged conduct,
      and to evaluate the conduct from counsel’s perspective at the time.
      Because of the difficulties inherent in making the evaluation, a
      court must indulge a strong presumption that counsel’s conduct
      falls within the wide range of reasonable professional assistance;
      that is, the defendant must overcome the presumption that, under
      the circumstances, the challenged action might be considered
      sound trial strategy.




                                        6
Id. (quotation omitted). “The proper measure of attorney performance remains
simply reasonableness under prevailing professional norms.” Id. at 688. “To
establish that his trial attorney’s performance fell below this standard, the
defendant ‘has to show that no competent lawyer’ would have failed to consult
with [a second] accident reconstruction expert.” Whittaker, 158 N.H. at 768-69
(quoting Lynch v. Ficco, 438 F.3d 35, 49 (1st Cir. 2006). “In assessing the
reasonableness of trial counsel’s decision not to consult with an expert, we
‘recognize that reasonably diligent counsel are not always required to consult
an expert as part of pretrial investigation in a case involving the use of expert
witnesses by the state.’” Whittaker, 158 N.H. at 769 (quoting Dugas v. Coplan,
428 F.3d 317, 328-29 (1st Cir. 2005)). Furthermore, “[a] defendant’s attorney
is not required, in every case, to consult experts even if the State will be
putting on expert witnesses.” Id. (citing Dugas, 428 F.3d at 329). “A defense
attorney may have no duty to consult with an expert, for instance, when there
is ‘no need to question the validity of the government’s proposed evidence or
the evidence may be so weak that it can be demolished on cross-examination.’”
Id. (quoting Dugas, 428 F.3d at 329). Lastly, we give counsel’s strategic
decisions a substantial amount of deference: “strategic choices made after
thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable; and strategic choices made after less than complete
investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.” Strickland, 466 U.S. at
690-91.

       The trial court made the following findings. Defense counsel made a
strategic decision to defend the case with a theory of pure accident, thus devoid
of the “reckless” intent needed to convict. Counsel chose to avoid a “blame the
victim” defense because he knew that the jury would see the video and he did
not believe that the video showed any contribution by the victim to the crash.
To be sure that there was no contribution by the victim, defense counsel
obtained the victim’s phone records in order to investigate whether the victim
was distracted, but the records showed no activity at the time of the crash. To
further his investigation, trial counsel retained an accident reconstruction
expert. After reviewing the video, the expert advised trial counsel that he could
not be of assistance because he could not offer a favorable opinion. Post-trial,
the defendant, with new counsel, retained a different accident reconstruction
expert who placed fault for the accident with the victim, opining that he
believed the victim overreacted when the defendant returned to the passing
lane. The trial court found, however, that “the video evidence introduces a
factor that makes it seemingly superfluous for someone else to explain to the
jurors what they can see for themselves.” The trial court further emphasized
that, “[w]hether or not the theory [of pure accident] is plausible, the important
thing is that trial counsel had a theory of defense based on sound reasons that
simply was different from the ‘blame the victim’ premise constructed post-trial.”




                                       7
       The defendant argues that his trial counsel was constitutionally deficient
because counsel failed to retain a second accident reconstruction expert.
While this is an issue of first impression in New Hampshire, jurisdictions that
have addressed the question have overwhelmingly held that failing to retain a
second expert opinion is not deficient performance. See, e.g., Caudill v.
Conover, 881 F.3d 454, 463 (6th Cir. 2018) (holding that the defendant’s
lawyer was not incompetent for failing to call a second expert, especially
because the second expert had the potential to do more harm than good);
Wesbrook v. Thaler, 585 F.3d 245, 253 (5th Cir. 2009) (“The state court’s
determination that Wesbrook’s counsel did not render ineffective assistance by
failing to secure additional expert testimony . . . is not an objectively
unreasonable application of Strickland.”); Sidebottom v. Delo, 46 F.3d 744, 753
(8th Cir. 1995) (noting that the court has never suggested that counsel must
continue to look for favorable experts after receiving an unfavorable opinion);
Stone v. State, 798 S.E.2d 561, 581 (S.C. 2017) (“The ‘prevailing norms’ that
guide our judgment as to whether counsel’s performance was reasonable do
not require counsel to pursue a second expert after a qualified expert has given
an adverse opinion.”); In re Williams, 101 A.3d 151, 156 (Vt. 2014) (“Having
hired a competent, experienced expert, a defense lawyer cannot be criticized for
accepting that person’s opinion. There is no duty to continue to search for
someone who will take the other side.”); cf. Elledge v. Dugger, 823 F.2d 1439,
1447 n.17 (11th Cir. 1987) (“We emphasize that the duty is only to conduct a
reasonable investigation. Counsel is not required to ‘shop’ for a psychiatrist
who will testify in a particular way.”).

       Here, trial counsel’s decision not to retain a second expert was based
upon a reasonable investigation. Trial counsel reviewed the video of the events
and retained an accident reconstruction expert. After reviewing the case,
including the video, the expert said he could not be of assistance because he
would not be able to provide a favorable opinion. Finally, as part of his
investigation, trial counsel reviewed the victim’s phone records to make sure
that inattentiveness by the victim did not contribute to the accident. Under
these circumstances, we agree with the trial court that trial counsel’s failure to
retain a second accident reconstruction expert did not constitute
constitutionally deficient performance.

      To the extent the defendant argues that, without an accident
reconstruction expert, trial counsel should have put the defendant on the
stand, “he has not provided us with a record that demonstrates that he
preserved this argument for our review.” State v. Tsopas, 166 N.H. 528, 531
(2014). We therefore decline to address it.

                                                         Affirmed.


      BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.


                                        8
