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The State of New Hampshire v. Lynn Dion

February 8, 2013


The opinion of the court was delivered by: Conboy, J.

a.m. on the morning of their release. The direct address of the court's home page is:


Argued: October 17, 2012

The defendant, Lynn Dion, appeals her conviction for negligent homicide following a jury trial in Superior Court (Brown, J.). See RSA 630:3 (2007). On appeal, she argues: (1) that using a cellular telephone while driving does not constitute the requisite wrongful or blameworthy conduct to establish the culpable mental state for criminal negligence and, therefore, that the evidence was insufficient to support her conviction; and (2) that the trial court erred in denying her motion in limine to exclude certain of her cell phone records. We affirm.

The jury could have found the following facts. On June 28, 2009, the victim, Genny Bassett, and her friend, Elsa Gonnella, were at Bassett's home in Franklin. Shortly before 9:00 p.m., they began walking to Gonnella's home. They walked slowly, and Gonnella, who was about sixty years old, used an umbrella for support while she walked. After crossing the bridge on Central Street, they stopped at a crosswalk, which had recently been repainted white, was well lit by streetlights, and was marked with a yellow and black pedestrian crossing sign. After checking both ways for oncoming traffic, they began to cross Central Street.

In the meantime, the defendant was driving from Sutton to her home in Franklin. As she turned the corner of North Main Street onto Central Street in the eastbound lane at the west end of the bridge, Bassett and Gonnella were just stepping off the curb on Central Street at the other end of the bridge in the westbound lane. The bridge was level, with no trees or leaves obstructing the view of the crosswalk from the traffic on the bridge. They walked about fifty- four feet, crossing the westbound lane of Central Street and most of the eastbound lane. Gonnella then heard a "bang" and "went down." When she regained consciousness a few minutes later, she saw the defendant on the sidewalk with a cell phone in her hand. Gonnella discovered Bassett, who was wearing white pants and a light-colored denim jacket, in the road nearby, unresponsive. Bassett had been hit by the right front bumper of the defendant's car, resulting in a fatal brain injury.

When Sergeant Richard Carlson of the Franklin Police Department arrived at the scene, the street lights were on, though the sky was not completely dark. The defendant told Carlson that she did not see Bassett and Gonnella in the crosswalk. She stated that just before reaching the end of the bridge, she heard a loud "pop" and felt glass coming into her car. Although admitting that she made several calls on her cell phone throughout her trip, the defendant said that she made the last call while passing Benson's Auto, which is on North Main Street at the west end of the bridge. She denied that she was on the phone at the time of the collision.

Law enforcement officers conducted reconstruction analysis of the collision. The skid marks on the road, the distance that the victim was thrown forward, and the statement of the defendant all supported the conclusion that at the time of the collision, the defendant's vehicle was travelling at 30 miles per hour. Based upon an average walking speed of four feet per second, the officers concluded that 13.5 seconds elapsed from the time that Bassett and Gonnella stepped off the curb until the impact. They also determined that it would have taken the defendant 1.5 seconds, at most, to react to someone in the road ahead, either by applying her brakes or by turning her steering wheel. Based upon these findings, the officers' accident report reflected their conclusion that, rather than experiencing a momentary distraction such as may be caused by "a sneeze" or "changing of the radio station," the defendant had "a large amount of time and distance to see the pedestrian[s] and bring her vehicle to a stop" and, therefore, the defendant failed to exercise due care in avoiding the collision, negligently causing Bassett's death.

Prior to opening statements, the jury travelled by bus to view the accident scene. The prosecutor instructed the jury to pay particular attention to the lighting in the area, to note whether there were any obstacles to visibility, and to "take a look down Central Street and pay attention to the things that you would pay attention to as the driver in a vehicle."

At trial, over the defendant's objection, the State introduced the defendant's cell phone records for the time that she drove from Sutton to Franklin. The records revealed that during the thirty-seven minute trip, she made and received a number of calls, sometimes using the "call waiting" feature to switch back and forth between conversations. Following calls to other people, the defendant called Judy McIntire, who did not answer. At 9:04:17 p.m., McIntire's voice mail picked up the call. The defendant hung up four seconds later, without leaving a message. McIntire testified that it was unusual for the defendant to call her and fail to leave a message. The next call that the defendant placed was to the Franklin police at 9:05:52 - one and one- half minutes later.

At the close of the State's case, the defendant moved to dismiss, arguing that the only blameworthy conduct the jury could attribute to her was the use of her cell phone while she was driving and that such use is not illegal. The trial court denied the motion. The defense then called its sole witness, the defendant. She testified that she was "probably an eighth to a quarter of a mile from the bridge" when she called McIntire and that the phone was on the passenger seat when she turned onto the bridge. She stated that she crossed the bridge, did not see anybody walking, saw a "flash of blue" out of the corner of her eye, and heard the windshield pop. When she looked in the mirror and realized there was "somebody in the street," she stopped, got out of the car with the phone in her hand, and called the police.

The jury returned a verdict of guilty. The defendant moved to set aside the verdict, arguing that the evidence was insufficient to support a finding of guilt. The trial court denied the motion. This appeal followed.

The defendant first argues that the trial court erred in denying her motion to dismiss and motion to set aside the verdict because there was insufficient evidence of any wrongful or blameworthy conduct. She contends that using a cell phone while driving is not illegal in New Hampshire and, in and of itself, does not rise to the level of blameworthy conduct required to establish criminal negligence.

The issue on appeal as to both the motion to dismiss and the motion to set aside the verdict is the sufficiency of the evidence. State v. Shepard, 158 N.H. 743, 745 (2009). We review the entire trial record because, even though the defendant is not required to present a case, if she chooses to do so, she takes the chance that evidence presented in her case may assist in proving the State's case. State v. Littlefield, 152 N.H. 331, 350 (2005) (quotation omitted). To prevail, the defendant must prove that no rational trier of fact, viewing all of the evidence ...

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