The defendant, Stephen Harding, appeals his conviction for Class A misdemeanor operating under the influence of liquor, subsequent offense. See RSA 265-A:2 (Supp. 2010); RSA 265-A:18, IV (Supp. 2010). He argues that: (1) the trial court erred in declining to define "actual physical control" in response to the jury's question; and (2) there was insufficient evidence that he operated or was in "actual physical control" of the vehicle. We affirm.
The response to a jury question is left to the sound discretion of the trial court; we review its answer under our unsustainable exercise of discretion standard. State v. Kelly, 160 N.H. 190, 195 (2010). We review the trial court's answer to a jury inquiry in the context of the court's entire charge to determine whether the answer accurately conveys the law on the questions and whether the charge as a whole fairly covered the issues and law in the case. State v. Stewart, 155 N.H. 212, 214 (2007).
We extract the following facts from the defendant's "motion to establish, nunc pro tunc, the record of defense counsel's objection to the [trial] court's answer to jury question." After the jury began deliberating, it asked: (1) what is the definition of attempting to operate a vehicle; (2) does this include an individual who starts a car but is not driving a vehicle; and (3) does that include an individual who is sitting in a vehicle that is running. Defense counsel requested that the trial court respond by providing a definition of "actual physical control." The trial court's response was: "The law is as follows: Operation occurs when a person operates a motor vehicle. This means he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle. To drive a vehicle means to operate or be in actual physical control of a motor vehicle."
The defendant argues that, because the trial court failed to define "actual physical control, " its response was incomplete and substantially erroneous. We disagree. The jury asked only for the definition of "attempting to operate a vehicle"; it did not ask for a definition of "actual physical control." The trial court answered the question asked. Nor do we find error in its decision to limit its response to the first question asked by the jury. The second and third questions contained limited facts; the correct answer could well have depended upon other facts that were presented in this case. For the court to have responded based upon the limited facts posited risked invading the province of the jury.
The defendant also argues that there was insufficient evidence for a rational juror to determine beyond a reasonable doubt that he operated or was in "actual physical control" of the vehicle. He concedes that he did not raise this issue before the trial court, see State v. Gordon, 161 N.H. 410, 418 (2011), but asks that we review this issue under our plain error rule. See Sup. Ct. R. 16-A. The plain error rule allows us to consider errors not raised before the trial court. State v. Ortiz, 162 N.H. 585, 590 (2011). We limit use of the rule to those circumstances in which a miscarriage of justice would otherwise result. Id. 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 error must seriously affect the fairness, integrity or public reputation of judicial proceedings. Id.
To prevail in a challenge to the sufficiency of the evidence, the defendant bears the burden of proving that no rational trier of fact, viewing the evidence in the light most favorable to the State, could have found guilt beyond a reasonable doubt. State v. Burke, 162 N.H. 459, 460 (2011). In reviewing the evidence, we examine each evidentiary item in the context of all the evidence, not in isolation. Id. at 460-61. Circumstantial evidence may be sufficient to support a finding of guilt beyond a reasonable doubt. Id. Further, the trier may draw reasonable inferences from facts proved and also inferences from facts found as a result of other inferences, provided they can be reasonably drawn therefrom. Id.
We note at the outset that at trial, the defendant stipulated that at the time in question he was under the influence of alcohol. Accordingly, his challenge to the sufficiency of the evidence is limited to whether the State proved that he operated or was in "actual physical control" of the vehicle. See RSA 259:24 (2004).
Construed in the light most favorable to the State, the record contains the following evidence. After receiving a report of a car off the road, in a snow bank, with someone inside, the arresting officer found the defendant curled up against the passenger side door; "he had one leg straddl[ing] the center console, so the leg was actually on the driver's side floor board." The car was running and the keys were in the ignition. It had been snowing and there were footprints from the driver's side door to the rear tire. "There were no footprints anywhere around the passenger side, the rear of the vehicle, or leaving or coming to the vehicle other than those matted footprints right by the driver's side door and the rear tire on the driver's side." When the officer was able to wake him, the officer asked the defendant what had happened. The defendant said that he had been driving and had slid off the road. When the officer opened the car door, he immediately smelled an odor of alcohol. The defendant had slurred speech, red glossy eyes, and was lethargic. As he exited the vehicle on the driver's side, he took the keys from the ignition and put them in the center console. Based on his observations, including the defendant's performance on field sobriety tests, the officer arrested the defendant. After booking, the defendant called his girlfriend from the station and "mentioned that he was driving like an asshole and had gone off the road." The police officer then spoke to the girlfriend. The girlfriend told him that the defendant "had been driving and called her earlier, that he had been driving and that he had gone off the road."
Although at trial, the defendant recanted his statements about driving and his girlfriend offered an alternative version of the events in which she was driving when the car slid off the road, the discrepancies in evidence and testimony were for the jury to resolve. See State v. Breed, 159 N.H. 61, 67 (2009). As the trier of fact, the jury was in the best position to measure the persuasiveness and credibility of the evidence. See id.
Based upon the record before us, a rational trier of fact could have found beyond a reasonable doubt that the defendant was in actual physical control of the car before he fell asleep. See State v. Winstead, 150 N.H. 244, 247-48 (2003). Accordingly, we find no plain error.
Dalianis, C. J, and Hicks and Conboy, JJ, ...