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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Rockingham
No. 2018-0222


                        THE STATE OF NEW HAMPSHIRE

                                         v.

                          KATHERINE SAINTIL-BROWN

                            Argued: March 13, 2019
                         Opinion Issued: April 17, 2019

      Gordon J. MacDonald, attorney general (Brandon H. Garod, assistant
attorney general, on the brief and orally), for the State.


      Christopher M. Johnson, chief appellate defender, of Concord, on the
brief and orally, for the defendant.

       HICKS, J. The defendant, Katherine Saintil-Brown, appeals her
convictions by a jury in Superior Court (Delker, J.) for negligent homicide, see
RSA 630:3 (2016), criminal neglect of an elderly adult, see RSA 631:8 (2016)
(amended 2016), and failure to report adult abuse, see RSA 161-F:46 (2014)
(amended 2016), :50 (2014). The defendant’s convictions were based upon her
failure to call for help while her elderly mother, the victim, lay in her own waste
on the floor of their shared home for multiple days. On appeal, the defendant
argues that the evidence was insufficient for the jury to have convicted her of
the three charges. She also argues that the trial court erroneously instructed
the jury on the criminal neglect of an elderly adult charge and that this error
requires reversal of her conviction on that charge. The defendant raises her
appellate arguments under our plain error rule. See Sup. Ct. R. 16-A. As to
the jury instruction issue, the State agrees that the trial court’s instruction was
erroneous and that the error was plain, but asserts that the error does not
require reversal. We affirm.

I. Background

       The jury could have found the following facts based upon the evidence at
trial and the reasonable inferences to be drawn therefrom. The victim was
nearly 76 years old when the events that led to her death occurred. See RSA
631:8, I(d) (defining an elderly adult as a person who is 60 years of age or
older). For years, the victim’s personal hygiene was lacking. Former co-
workers testified that as early as the 1990’s, the victim would not use the toilet,
but would instead urinate and defecate wherever she was sitting or standing.

      When the victim’s husband died in 2012, the victim became depressed,
and her depression caused her to neglect her personal hygiene even more than
before. After her husband died, the victim essentially ceased taking showers.
Nor did she clean her home. The walls and floors of her home were full of
feces. At one point, her sink was so clogged with food that mice built nests in
it. Towards the end of her life, the victim spent her days sitting in a chair,
watching television, and talking on the telephone with her sister. She would
not leave her chair to toilet, but would instead relieve herself where she sat and
would not clean herself after having done so.

      The victim’s depression also led her to neglect her medical needs. After
her husband died, the victim ceased seeing medical service providers because
she blamed them for his death. Thus, although her feet were perpetually
swollen because of injuries she sustained in a car accident in the 1960s, she
refused to get medical care. In addition, the victim was “morbidly obese” and
used a walker.

      In September 2014, the defendant and her daughter (the victim’s
granddaughter) moved into the victim’s mobile home to take care of her. They
“essentially liv[ed] there for free” as the victim paid the monthly rent and for all
household utilities, except for internet service. The defendant knew before
moving into the victim’s home that the home was “filthy” and that the victim
“had no personal hygiene.” The defendant told her daughter that “the house
might be a hazard” and that her daughter would “get sick from living there.”

      However, even with the defendant and her daughter living with the
victim, the victim’s personal hygiene remained lacking. One of her feet was
swollen and purple, and her home was “unkept, dirty, [and] smelled inside.”



                                         2
      The defendant and the victim had a strained relationship. Over the
years, the defendant was heard telling the victim, “I can’t wait until you die so I
can get your money.”

     The victim had an annuity account valued at $50,000 that she opened in
March 2014; the defendant and her daughter were the co-beneficiaries of the
account. She also had an IRA valued at $17,280; the defendant and her
daughter were also the co-beneficiaries of this account.

      On February 12, 2016, the victim fell to the floor of her mobile home.
She remained there for five days, lying in her own waste, before the defendant
called the fire department for a “lift assist.” The day of the fall, the defendant
and her daughter attempted to lift the victim off the floor, but were unable to
do so. The victim also attempted unsuccessfully to lift herself off the floor.
According to the victim’s granddaughter, the victim was wearing neither pants
nor underclothing that day.

       The next day, the defendant and her daughter again attempted to lift the
victim off the floor, but were, again, unable to do so. On the fourth day after
the victim fell to the floor, the defendant and her daughter searched the
internet for symptoms of strokes and other ailments because they “wanted to
know why she wasn’t getting up” and “was just laying there.” Nevertheless, the
defendant did not call the fire department for help that day. Rather, the
defendant decided that if the victim was still unable to get off the floor the
following day, she would call for help then. On the fifth day after the fall,
because the victim could not get up from the floor, the defendant called the fire
department.

       When firefighters found the victim, she “was covered in urine and feces.”
Her thin, cotton nightgown was wet and filthy. Firefighters saw a hole in the
floor of the mobile home, approximately four feet from where the victim lay.
Firefighters asked the victim to identify the President and to tell them what day
and month it was. Firefighters had to ask the victim questions two or three
times before she would respond. Her responses were sometimes inappropriate,
such as when asked who the President was, she responded, “No.” Eventually,
she answered the firefighters’ three questions, but gave wrong answers to two
of them. Based upon her inability to answer all three questions correctly and
upon the fact that she had obviously urinated and defecated on herself, the
firefighters concluded that the victim had an “altered mental state.” Because it
was winter and the victim had been on the floor for five days, in addition to
taking her blood pressure, firefighters also took her temperature, and
discovered that her blood pressure was low (89/54) and that she was
hypothermic. Given her altered mental state, the firefighters decided that they
had “to do what’s best” for the victim and transport her to the emergency room
of a local hospital for care.



                                         3
      When firefighters removed the victim from her home, she did not protest
going to the hospital. The defendant appeared not to show any “concern at all
for what was going on” as firefighters attended to the victim. When firefighters
asked the defendant why she had not called for help sooner, she did not
answer. The defendant told the firefighters that she did not know how the
victim ended up on the floor, but guessed that the victim might have tried to sit
on her chair and then decided to lie on the floor instead.

       The defendant called the hospital twice while the victim was being
treated. In the first call, the defendant said that the victim was able to walk
around, but that she simply refused to do so. The defendant also said that a
social worker had visited the home and told her “that they were not able to
force [the victim] to go” and that the defendant should “let [the victim] stay on
the floor.” However, in February 2016, the first and only report made to adult
protective services regarding the victim’s fall was made on February 17 by
emergency responders. There were no documented visits in February 2016 to
the victim’s home by adult protective services. The defendant also told the
emergency department that, if the victim was soiled, she must have soiled
herself on the way to the hospital.

       The defendant called the hospital again approximately an hour later,
hysterical. She screamed at the nurse who answered the call: “[E]veryone is
blaming [me] and it’s not [my] fault.” She also screamed, “I can’t force her to
get off the floor. What am I supposed to do? She has rights. Her social worker
was here the other day and told me that I couldn’t force her.” When the nurse
explained that no one was blaming her, the defendant continued to scream.

       The emergency department physician who examined the victim found her
to be “calm and cooperative.” Based upon the victim’s low blood pressure and
body temperature and upon the fact that she had been lying on the floor in her
own waste for five days, the physician was concerned that the victim might
have a severe infection. Specifically, she was concerned that the victim’s
infection might have become septic. Such an infection, if left untreated, results
in death.

       The physician later discovered that the victim had an ulcer on her left
inner thigh and black tissue “about the size of a computer mouse” in the same
area. An ulcer is the breakdown of skin from pressure. According to the
physician, “[b]lack tissue is dead rotting flesh.” Based upon CT scans and
laboratory test results, the physician diagnosed the victim with necrotizing
fasciitis, which is the most common type of necrotizing soft tissue infection.1


1 Necrotizing means to cause “necrosis,” which is the death of a cell or group of cells. McGraw-Hill
Dictionary of Scientific & Technical Terms 1406 (6th ed. 2003). “Fascia” are connective tissues
that are under the skin and between the muscles, nerves, and blood vessels. Id. at 779.


                                                 4
        Necrotizing soft tissue infection is a rare, serious, aggressive bacterial
infection that, in effect, kills the body’s soft tissue. It is caused by bacteria that
gain entry to the body through an open wound and then burrow into the body’s
layers of fat and muscle, below the skin. Necrotizing soft tissue infection
spreads “[v]ery, very quickly.” So-called “flesh-eating disease” is one form of
necrotizing soft tissue infection. According to the physician, “[t]he sooner you
can initiate treatment[,] the better” because “[t]he longer you wait, the higher
[the] likelihood that you die.” As another physician testified, “every hour
counts” with these kinds of infections. To treat necrotizing soft tissue
infection, the infection must be removed surgically. Treatment usually also
involves skin grafting and, sometimes, amputation. A CT scan showed that the
victim’s infection was 6 centimeters deep and was the largest infection that the
physician had ever seen.

       It was estimated that the infection developed on day three or four after
the fall. Physicians opined that the victim developed an ulcer on her leg
because she was on the floor for five days, lying in her own waste. The victim’s
urine and the pressure from being on the floor caused her skin to break down,
creating the ulcer, and her fecal matter caused the ulcer to become infected.
Had the victim been sitting in her chair for five days instead of lying on the
floor, she would not have developed a similar wound. This is so because when
a person sits on a chair or another soft surface, he or she constantly shifts
weight or makes minor adjustments to alleviate pressure and prevent the
development of ulcers. By contrast, a person who is lying on a hard surface,
such as a floor, does not have the freedom of movement to make those
adjustments, and can develop an ulcer relatively quickly. The risk of
developing an ulcer is higher for individuals who are unable to move.

       Because the local hospital was not equipped to treat necrotizing fasciitis,
the victim was transferred to a Maine hospital. Medical staff there determined
that the victim’s chance of surviving the required surgeries was “quite low”
because her infection was so advanced and because she had other
comorbidities. For these and other reasons, it was decided that the victim
would be made comfortable while the infection ran its course. The victim died
in hospice on February 20. The cause of death was sepsis caused by
necrotizing fasciitis. Shortly after the victim died, the defendant and her
daughter each received approximately $25,000 from the victim’s accounts.

II. Discussion

      The defendant raises her appellate arguments under our plain error rule.
Plain error should be used sparingly, its use limited to those circumstances in
which a miscarriage of justice would otherwise result. State v. Pennock, 168
N.H. 294, 310 (2015). To find plain error: (1) there must be an error; (2) the
error must be plain; (3) the error must affect substantial rights; and (4) the



                                          5
error must seriously affect the fairness, integrity, or public reputation of
judicial proceedings. Id. As to the defendant’s arguments that the evidence
was insufficient to convict her, we find the evidence to be sufficient. As to her
assertion that the trial court’s jury instruction constitutes plain error and
requires reversal, we assume without deciding that the first three prongs of the
plain error test are met, but conclude that the fourth prong is not satisfied.
See State v. Russell, 159 N.H. 475, 490-92 (2009) (noting State’s concession
that first two prongs were met, assuming without deciding that third prong was
met, and concluding that fourth prong was not satisfied); see also State v.
Page, 171 N.H. ___, ___ (decided March 19, 2019) (slip op. at 11) (where the
defendant argued that the trial court erroneously instructed the jury as to the
requisite mens rea for the offense, the court declined to address the first three
prongs of the plain error test because it concluded that the fourth prong was
not satisfied).

      A. Sufficiency of the Evidence

       We first address the defendant’s challenges to the sufficiency of the
evidence. When considering a challenge to the sufficiency of the evidence, we
objectively review the record to determine whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt, considering all the evidence and all reasonable inferences therefrom in
the light most favorable to the State. State v. Francis, 167 N.H. 598, 603-04
(2015). The trier of fact may draw reasonable inferences from facts proved as
well as from facts found as the result of other inferences, provided they can be
reasonably drawn therefrom. Id.

       We examine each evidentiary item in the context of all the evidence, and
not in isolation. State v. Craig, 167 N.H. 361, 369 (2015). Because a challenge
to the sufficiency of the evidence raises a claim of legal error, our standard of
review is de novo. Id. at 370. Because, in this case, the defendant chose to
present a case, we review the entire trial record to determine the sufficiency of
the evidence. See State v. Dion, 164 N.H. 544, 548 (2013).

       The defendant has the burden of demonstrating that the evidence was
insufficient to prove guilt. State v. Roy, 167 N.H. 276, 292 (2015). When the
evidence as to one or more elements of the charged offense is solely
circumstantial, a defendant challenging sufficiency must establish that the
evidence does not exclude all reasonable conclusions except guilt. Id. 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.

      By contrast, when the proof involves both direct and circumstantial
evidence, a sufficiency challenge must fail if the evidence, including the jury’s



                                        6
credibility determinations, is such that a rational trier of fact could find guilt
beyond a reasonable doubt, even if the evidence would support a rational
conclusion other than guilt if the jury had resolved credibility issues differently.
State v. Saunders, 164 N.H. 342, 351 (2012). Regardless of whether the
evidence is solely circumstantial or involves both direct and circumstantial
evidence, we still consider it in the light most favorable to the State, and we
examine each evidentiary item in the context of all of the evidence, not in
isolation. See State v. Hull, 149 N.H. 706, 712 (2003).

            1. Criminal Neglect of an Elderly Adult

       The defendant first argues that the evidence was insufficient for the jury
to have convicted her of criminal neglect of an elderly adult. To convict the
defendant of criminal neglect of an elderly adult as charged in the indictment,
the State had to prove, among other things, that the defendant was the victim’s
“caregiver,” and that the defendant “recklessly” caused “serious bodily injury”
to the victim, an elderly adult, by “neglect” in that she allowed the victim to lay
on the floor of their shared home for multiple days in her own feces and urine
without calling for help. RSA 631:8, I(b), (f), (h), III.

       The defendant advances three challenges to the sufficiency of the
evidence on this charge. She argues that the evidence was insufficient for the
jury to have found that she “neglected her duties as a ‘caregiver’ in any respect
as to which she had agreed to provide care,” that her “neglect” caused the
victim’s serious bodily injury, and that she acted “recklessly.”

                   a. Caregiver/Neglect

      A “caregiver” is “any person who has been entrusted with, or has
assumed the responsibility voluntarily, by contract, or by order of the court, for
frequent and regular care of or services to an elderly . . . adult, including
subsistence, medical, custodial, personal or other care on a temporary or
permanent basis.” RSA 631:8, I(b). A “caregiver” does not include an
uncompensated volunteer, unless such person “has agreed to provide care and
is aware that the person receiving the care is dependent upon the care
provided.” Id.

      Although the defendant frames her first argument as an assertion that
the evidence was insufficient for the jury to have found that she was a
“caregiver” under the statute, on appeal, she does not dispute that she
voluntarily agreed to provide certain frequent and regular care of the victim.
See id. Specifically, she concedes that, viewing the record in the light most
favorable to the State, she “undertook to buy and prepare food [for the victim],”
which constitutes providing care under the statute. She contends that her
conviction must be reversed, however, because the State “introduced no



                                         7
evidence that [she] neglected her duties as a ‘caregiver’ in any respect as to
which she had agreed to provide care.”2

       “Neglect” within the meaning of RSA 631:8 refers to “the failure or
omission on the part of the caregiver to provide the care, supervision, and
services which he or she has voluntarily, or by contract, or by order of the
court agreed to provide and which are necessary to maintain the health of an
elderly . . . adult.” RSA 631:8, I(f). Such care includes, but is not limited to,
“food, clothing, medicine, shelter, supervision, and medical services, that a
prudent person would consider necessary for the well-being of an elderly . . .
adult.” Id. “‘Neglect’ may be repeated conduct or a single incident.” Id.

       Viewed in the light most favorable to the State, the evidence and the
reasonable inferences drawn therefrom were sufficient for a rational trier of fact
to find, beyond a reasonable doubt, that the defendant voluntarily agreed to do
more than just buy groceries for and feed the victim. To the contrary, the jury
heard testimony that the defendant and her daughter “had moved in with [the
victim] . . . in September 2014 to take care of her.” There was also evidence
that the defendant and her daughter were in the victim’s home to help her with
what she could not manage on her own. The jury also heard evidence that the
victim could not lift herself off the floor after she fell on February 12, 2016.
There was also evidence that the defendant and her daughter tried to help the
victim get off the floor by lifting her themselves, but that they, too, failed in the
attempt.

       Based upon this evidence and the reasonable inferences therefrom
viewed in the light most favorable to the State, we conclude that a rational trier
of fact could have found, beyond a reasonable doubt, that, by failing to call for
help earlier, the defendant failed to provide the care she volunteered to provide
— to take care of the victim and help her with whatever she could not manage
on her own — and that a prudent person would have considered such care
necessary for the victim’s well-being. As the State aptly argues, “Calling for
help in an emergency situation where [the victim] fell and could not get up,
despite clearly demonstrating that she desired to, certainly fell within the type

2 To the extent that the defendant asserts that she preserved her “caregiver” appellate argument
by raising it in the trial court, we disagree. The defendant’s “caregiver” argument in the trial court
is different from her “caregiver” argument on appeal. In the trial court, the defendant argued that
the evidence on the “caregiver” element was insufficient because there was no evidence that she
“provided any level of care for her mother,” the victim. By contrast, on appeal, the defendant does
not dispute that she provided some level of care to her mother. Because the defendant’s
“caregiver” argument on appeal differs from her “caregiver” argument in the trial court, we
consider her appellate argument not preserved for our review. See State v. Mouser, 168 N.H. 19,
26-28 (2015) (rejecting argument that the defendant was not required to raise specific arguments
in support of motion to suppress to preserve them on appeal because, by raising different
argument on appeal than the argument presented to the trial court, the trial court was deprived of
an opportunity to correct its alleged error). Therefore, we address her appellate “caregiver”
argument, like her other appellate arguments, under our plain error rule. See Sup. Ct. R. 16-A.


                                                  8
of care the defendant agreed to provide.” We agree with the State that “[t]he
evidence presented was sufficient [for] a reasonable jury to conclude that by
waiting five days before calling for assistance, the defendant failed to provide
the care she agreed to provide, and that removing [the victim] from the floor
was necessary to maintain her health.”

      The defendant contends that the State had to prove that she specifically
assumed responsibility for the victim’s medical care and hygiene needs.
Absent such proof, the defendant argues that the evidence was insufficient to
establish that she engaged in “neglect.” However, the defendant was not
charged with neglect because she failed to obtain medical care or address the
victim’s lack of personal hygiene. Rather, she was charged with neglect
because she allowed the victim to lie on the floor for multiple days in her own
waste “without calling for help.”

                   b. Causation

       To establish that the defendant’s neglect caused the victim to sustain
serious bodily injury, the State had to prove, beyond a reasonable doubt, that
her conduct was a substantial factor in bringing about the victim’s serious
bodily injury and that any other factors were not the sole substantial cause of
it. See State v. Lamprey, 149 N.H. 364, 366-67, 369 (2003). Here, the jury
heard evidence that the victim likely developed the infection on day three or
four after falling. The jury also heard evidence that time is of the essence with
necrotizing fasciitis because it spreads so quickly that the longer that
treatment is delayed, “the higher [the] likelihood” that the infected person will
die. In addition, there was evidence that the victim developed an ulcer on her
inner thigh from being on the floor and from urinating on herself, and that the
ulcer became infected because the victim defecated on herself. Based upon
this evidence and the reasonable inferences therefrom, viewed in the light most
favorable to the State, we conclude that a rational trier of fact could have found
that the defendant’s delay in calling for help was a substantial cause of the
victim’s necrotizing fasciitis.

       In arguing for a contrary result, the defendant asserts that her delay in
calling for help could not have been a substantial cause of the victim’s
necrotizing fasciitis “unless the infection came at some point after [the victim]
became incompetent.” She contends that had she called for help before the
victim became incompetent, the victim “would have refused the assistance,
thereby preventing the call from influencing the course of events.” This
contention is so, she argues, because if the victim had been competent when
she refused help, the firefighters could not have provided aid to her over her
objection.

      The jury was not compelled to find as the defendant speculates. Viewing
the evidence and the reasonable inferences therefrom in the light most


                                        9
favorable to the State, we conclude that a rational trier of fact could have found
that if the defendant had called for help before the fifth day, the victim would
not have refused the assistance. The jury heard evidence that when the
firefighters arrived on the fifth day, the victim did not refuse their help. There
was evidence as well that, on the very first day that she fell, the victim
attempted to lift herself off the floor. There was also evidence that the
defendant and her daughter twice tried to help the victim get up from the floor.
Thus, viewing the evidence and the reasonable inferences therefrom in the light
most favorable to the State, a rational trier of fact could have found that had
the firefighters been called before the fifth day, the victim would have accepted
their help because she did not want to be on the floor and because such help
was necessary to get her off the floor. A rational trier of fact, viewing the
evidence and the reasonable inferences therefrom in the light most favorable to
the State, could also have found that, even if the victim had refused assistance,
the firefighters would have provided it over her objection because they would
have viewed a request to remain on the floor in her own waste as evidence of
incompetence.

                   c. Recklessness

        To prove recklessness, the State had to prove that the defendant was
aware of, but consciously disregarded, a substantial and unjustifiable risk that
her five-day delay in calling for help would result in serious bodily injury to the
victim. See Hull, 149 N.H. at 713; see also RSA 626:2, II(c) (2016). Such
disregard must have been “a gross deviation from the regard that would be
given by a law-abiding citizen.” Hull, 149 N.H. at 713; see also RSA 626:2,
II(c). “This is a subjective inquiry . . . [that] does not depend upon the actual
harm resulting from the defendant’s conduct.” Hull, 149 N.H. at 713 (citation
omitted). Because determining the defendant’s awareness is a subjective
inquiry, it may be proved by any surrounding facts and circumstances from
which such awareness may be inferred. Id.

      Viewing the evidence and the reasonable inferences therefrom in the light
most favorable to the State, we conclude that a rational trier of fact could have
found, beyond a reasonable doubt, that the defendant behaved recklessly. The
jury heard evidence that the victim habitually urinated and defecated on
herself. A rational trier of fact reasonably could have inferred that the
defendant was aware of this fact. Moreover, the evidence was manifest that the
defendant knew that the victim had fallen to the floor. In addition, there was
evidence that, although it was February, the victim wore only a wet, thin
nightgown without underclothing. There was also evidence that only four feet
from where the victim lay, there was a hole in the floor of her mobile home.
Further, there was evidence that, on the fourth day after the fall, the defendant
and her daughter, concerned that the victim was still on the floor, searched the
internet for information about symptoms of strokes and other ailments, and yet
the defendant decided not to call for help until the next day. There was also


                                        10
evidence that, had the victim simply sat in her chair for five days, she would
not have developed an ulcer.

      There was also evidence, when viewed in the light most favorable to the
State, that the defendant had a motive for consciously disregarding the
substantial and unjustifiable risk that the victim would sustain serious bodily
injury if left on the floor, in February, lying in her own waste, wearing only a
wet, soiled, thin nightgown and no underclothing. The defendant stood to
benefit from the victim’s death because, as the parties stipulated, she was one
of two beneficiaries of the victim’s annuity account and IRA. There was also
evidence that the defendant had, on multiple occasions, told the victim that
she could not wait for her to die so that the defendant could have her money.

       Further bolstering the State’s mens rea evidence was evidence that, when
viewed in the light most favorable to the State, demonstrated that the
defendant was conscious of her guilt. The jury heard evidence that while the
victim was in the hospital, the defendant called the hospital and screamed at a
nurse that she was not to blame for the victim’s condition. The jury also heard
evidence that, although the defendant twice claimed that a social worker had
visited the victim’s home and told the defendant that she had to allow the
victim to remain on the floor, in fact, no social service agency worker had
visited the home while the victim was on the floor. There was evidence, as well,
that the defendant told a hospital nurse that the victim had not soiled herself
at home, but rather did so en route to the hospital. See State v. Evans, 150
N.H. 416, 420 (2003) (explaining that “[i]t is reasonable to infer consciousness
of guilt from a defendant’s false exculpatory statement because an innocent
person does not usually find it necessary to invent or fabricate an explanation
or statement tending to establish . . . her innocence” (quotation and brackets
omitted)).

       From all of the evidence, viewed in the light most favorable to the State, a
rational trier of fact could have found, beyond a reasonable doubt, that the
defendant was aware of, but consciously disregarded, a substantial and
unjustifiable risk that leaving the elderly victim on the floor for five days in her
own waste in the middle of February, dressed only in a wet, thin nightgown
and no underclothing, without calling for help, would result in serious bodily
injury to her, and that a law-abiding citizen would not have waited so long to
call for help.

       The defendant contends that the evidence of her recklessness was
insufficient because there was no evidence that she had ever heard of
necrotizing fasciitis. Nor, she argues, was there evidence that she was
specifically aware that the victim’s skin could have broken down because of the
pressure of the floor and because her skin was perpetually wet from urinating
on herself. However, to be sufficient, the evidence did not have to establish
that the defendant “anticipated the precise risk or injury that resulted.” Hull,


                                        11
149 N.H. at 713. Here, the evidence was sufficient to establish that the
defendant was aware that there was something wrong with the victim; on the
fourth day after the fall, the defendant searched the internet for explanations
as to why the victim remained on the floor after four days. The evidence was
also sufficient to establish that, despite her concern, the defendant deliberately
chose to wait until the fifth day after the fall to call for a “lift assist.”

       The defendant also contends that the State was required and failed to
prove that she was reckless as to the victim’s competence. She argues that the
victim’s “competence mattered because her long-established and well-
documented determination to refuse medical care, in conjunction with her
right, while competent, to refuse care, rendered pointless any effort to seek
treatment while she was competent.” However, as previously discussed, the
jury was not compelled to find that any call for help before the fifth day would
have been futile. Moreover, the issue was whether the defendant was reckless
because she failed to call for help to get the victim off the floor, not whether she
was reckless because she failed to obtain medical care for the victim.

            2. Sufficiency of the Evidence: Negligent Homicide

       To convict the defendant of negligent homicide, the State had to prove,
beyond a reasonable doubt, that she caused the victim’s death negligently. See
RSA 630:3, I. The defendant argues that the evidence was insufficient to prove
both elements of the crime — that she acted negligently and that her
negligence caused the victim’s death. As to causation, the defendant merely
reiterates the causation arguments she makes as to the criminal neglect of an
elderly adult charge. We reject her arguments regarding the sufficiency of the
evidence that her negligence caused the victim’s death for the same reasons
that we rejected her arguments regarding the sufficiency of the evidence that
her criminal neglect caused the victim to sustain serious bodily injury.
Accordingly, we focus upon the defendant’s assertion that the evidence that
she acted negligently was insufficient.

      To establish that the defendant acted negligently, the State had to prove
that she failed “to become aware of a substantial and unjustifiable risk that the
material element exists or will result from [her] conduct.” RSA 626:2, II(d)
(2016). “The risk must be of such a nature and degree that [her] failure to
become aware of it constitutes a gross deviation from the conduct that a
reasonable person would observe in the situation.” Id. “A person charged with
criminal negligence may not be convicted on evidence that establishes only
ordinary negligence.” Dion, 164 N.H. at 548 (quotation and brackets omitted).
Rather, “[t]he carelessness required for criminal negligence is appreciably more
serious than that for ordinary civil negligence, and must be such that its
seriousness would be apparent to anyone who shares the community’s general
sense of right and wrong.” Id. at 548-49 (quotation and ellipsis omitted).
Thus, “criminal negligence requires not only the failure to perceive a more than


                                        12
ordinary risk, but also some serious blameworthiness in the conduct that
caused it.” Id. at 549 (quotation and brackets omitted). We use an objective
test to determine whether the defendant failed to become aware of a
substantial and unjustifiable risk. State v. Shepard, 158 N.H. 743, 746 (2009).

      Thus, as the defendant explains in her brief, the difference between
recklessness, which was necessary to prove that she was guilty of criminal
neglect of an elderly adult, and negligence, is that to prove recklessness, the
State had to prove that she actually was aware of a substantial and
unjustifiable risk, whereas to prove negligence, the State had only to prove that
a reasonable person would have been aware of that risk.

       We hold that, viewing the evidence and the reasonable inferences
therefrom in the light most favorable to the State, the evidence was sufficient
for a rational trier of fact to find, beyond a reasonable doubt, that a reasonable
person would have been aware that there was a substantial and unjustifiable
risk of death in allowing an elderly, morbidly obese woman, who routinely
urinated and defecated on herself, to remain on the floor in her own waste for
multiple days dressed only in a thin, wet nightgown and no underclothing in
February. A reasonable person would have been aware that the victim had
been unable to lift herself from the floor on day one and that she could not
have been lifted off the floor without help from emergency responders. A
reasonable person would also have been aware that allowing the victim to
remain on the floor for five days would not result in the victim suddenly being
able to lift herself off the floor. A reasonable person would know that there was
a substantial and unjustifiable risk that the victim would become hypothermic
by lying on the floor in only a thin, wet nightgown, given that it was mid-
February and there was a hole in the floor only feet from where she lay. A
reasonable person would know that hypothermia can be fatal. A reasonable
person would also know that lying in one position can cause sores, that contact
with fecal matter can cause infection, and that infections in the elderly can be
fatal. We agree with the State that “[c]ertainly, by the fourth day when the
defendant became concerned that [the victim] had suffered a stroke, a
reasonable person would have been aware that further delay in seeking
assistance created a substantial and unjustifiable risk of death.”

        The defendant also contends that the State was required and failed to
prove that she was negligent as to the victim’s competence. Similarly to her
argument with respect to the criminal neglect of an elderly adult charge, the
defendant asserts that the victim’s “long-established and oft-repeated
determination to refuse medical care, in conjunction with her legal right, while
competent, to refuse such care, rendered pointless any effort to seek treatment
while she was competent.” However, as previously discussed, the jury was not
compelled to find that any call for help before the fifth day would have been
futile.



                                       13
             3. Sufficiency of the Evidence: Failure to Report

       To convict the defendant of failing to report elder abuse, the State had to
prove that she: (1) suspected or believed in good faith that the victim, an
incapacitated adult, had been subjected to abuse, neglect, self-neglect, or was
living in hazardous conditions; and (2) knowingly failed to immediately make
the required report to adult protective services. See RSA 161-F:46, :50. An
adult is “incapacitated” within the meaning of the statute if her “physical,
mental, or emotional ability . . . is such that [she] is unable to manage
personal, home or financial affairs in [her] own best interest, or . . . is unable to
delegate responsibility to a responsible caretaker or caregiver.” RSA 161-F:43,
VII (2014) (amended 2016). “Self-neglect” refers to “an act or omission by an
incapacitated adult which results or could result in the deprivation of essential
services or supports necessary to maintain his or her minimum mental,
emotional or physical health and safety.” RSA 161-F:43, VI (2014) (amended
2016).

      The defendant argues that the evidence was insufficient to prove that she
acted “knowingly.” A “person acts knowingly with respect to conduct or to a
circumstance that is a material element of an offense when he is aware that his
conduct is of such nature or that such circumstances exist.” RSA 626:2, II(b)
(2016). Knowledge “as to whether conduct constitutes an offense or as to the
existence or meaning of the law defining the offense” is not an element of such
offense, “unless the law so provides.” RSA 626:2, V (2016).

      The defendant argues that the evidence was insufficient because there
was no evidence that she knew of any change of circumstances that would
have changed the analysis of state social workers who, before the victim fell in
February 2016, had investigated her circumstances and determined that they
could not force her to accept services. However, to convict the defendant of
knowingly failing to report elder abuse, the State did not have to prove that she
knew of such a change of circumstances. In other words, to obtain a
conviction, the State did not have to prove, beyond a reasonable doubt, that
any report to adult protective services would have had a particular result; the
State had to prove only that the defendant knowingly failed to immediately
report her suspicion or good faith belief that the victim was incapacitated and
had been subject to abuse, neglect, self-neglect, exploitation, or was living in
hazardous conditions. See RSA 161-F:46.

       Here, viewing the evidence and the reasonable inferences therefrom in
the light most favorable to the State, a rational trier of fact could find, beyond a
reasonable doubt, that the defendant suspected or had a good faith belief that
the victim was “incapacitated” in that she could not manage her affairs on her
own. See RSA 161-F:43, VII. There was evidence that the defendant and her
daughter moved in with the victim precisely because the victim could not



                                         14
manage her own affairs. Additionally, there was evidence that, after the victim
fell, the defendant knew that the victim could not lift herself off the floor.

       A rational trier of fact, viewing the evidence and the reasonable
inferences therefrom in the light most favorable to the State, could also find,
beyond a reasonable doubt, that the defendant suspected or had a good faith
belief that the victim engaged in self-neglect and lived in hazardous conditions.
See RSA 161-F:43, VI. There was evidence from which a rational trier of fact
could have reasonably inferred that the defendant was aware that the victim
had fallen to the floor, that although she was on the floor, she continued to
urinate and defecate on herself, and that she lay on the floor in her own waste.
See id.

       Further, viewing the evidence and the reasonable inferences therefrom in
the light most favorable to the State, a rational trier of fact could have
reasonably inferred that the defendant knowingly failed to report that the
victim had fallen to the floor and was lying there in her own waste. Although
the defendant claimed that a social worker had visited the victim’s home and
told the defendant that she had to allow the victim to remain on the floor, there
was no evidence that a social service agency worker had visited the home while
the victim was on the floor. Nor was there any evidence that the victim’s fall
had been reported to adult protective services before emergency responders
reported such on February 17, 2016.

      B. Jury Instruction Error

       We next consider the defendant’s assertion that her conviction on the
criminal neglect of an elderly adult charge must be reversed under our plain
error rule because the trial court erroneously instructed the jury as to one of
the elements of that offense. The trial court instructed the jury: “So for this
offense, the State must prove [that] . . . the Defendant was unable to provide
care to an elderly person through no fault of her own, despite a good faith effort
by the Defendant to provide such care.” (Emphasis added.) The court’s
instruction was based upon RSA 631:8, VI, which provides, in pertinent part:
“Nothing in this section shall be construed to impose criminal liability on a
person who has made a good faith effort to provide for the care of an elderly . . .
adult, but through no fault of his or her own, has been unable to provide such
care . . . .” Assuming without deciding that the State bears the burden of proof
on this element, had the trial court correctly instructed the jury, it would have
told the jury that the State had to prove either that the defendant was able to
provide care to the victim or that she was unable to do so and that her inability
was her own fault. Id.

      The State concedes that the trial court’s instruction was erroneous and
that the error was plain, but asserts that reversal is not required. We agree
with the State that reversal is not required. Even if we assume without


                                        15
deciding that the first three prongs of the plain error test are met, the fourth
prong is not. The fourth prong of the plain error test requires us to “decide
whether the trial court’s error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Russell, 159 N.H. at 491 (quotation and
brackets omitted). In Russell, we held that the trial court’s failure to instruct
the jury that it must unanimously conclude that the deadly weapon used by
the defendant during the charged robbery was a firearm did not “seriously
affect[] the fairness, integrity or public reputation of judicial proceedings”
because “the evidence presented at trial that the defendant used a firearm to
commit the charged offense was overwhelming.” Id. at 490, 491, 492
(quotation omitted); see also State v. Ortiz, 162 N.H. 585, 591, 592 (2011) (trial
court did not “commit[] plain error by instructing the jury that the mens rea for
the [charged offense] was ‘knowingly’ instead of ‘purposely’” where “the
evidence that the defendant acted purposely was overwhelming and essentially
uncontroverted”).

       Here, there was no evidence that the defendant was unable to call the
fire department for help sooner than the fifth day after the victim fell. Indeed,
the evidence was overwhelming that the defendant could have called for help
earlier, but simply chose not to do so. Accordingly, we find no basis for
concluding that the trial court’s allegedly erroneous jury instruction seriously
affected the fairness, integrity, or public reputation of judicial proceedings. See
Russell, 159 N.H. at 491-92.

                                                   Affirmed.

     LYNN, C.J., and BASSETT, HANTZ MARCONI, and DONOVAN, JJ.,
concurred.




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