THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2024-0032, State of New Hampshire v. James Shankle, the court on March 10, 2026, issued the following order:
The court has reviewed the written arguments and the record submitted on appeal, has considered the oral arguments of the parties, and has determined to resolve the case by way of this order. See Sup. Ct. R. 20(3). Following a jury trial in the Superior Court (Schulman, J.), the defendant, James Shankle, appeals his convictions on two counts of negligent homicide, see RSA 630:3, I (2016), and two counts of negligent homicide — DUI, see RSA 630:3, II (2016). On appeal, the defendant argues that the trial court erred by:
(1) denying his motion to dismiss for insufficient evidence; and (2) admitting late-disclosed evidence that an investigating officer consulted with the state police accident reconstruction unit. We affirm.
The following facts are supported by the record. The defendant was charged with four counts of negligent homicide following the deaths of his wife and friend after the utility terrain vehicle (UTV) the defendant was operating collided with a tree. Two counts alleged that the defendant caused the deaths by operating the UTV "in consequence of being under the influence of intoxicating liquor," see RSA 630:3, II, while the other two counts alleged that the defendant caused the deaths by operating the UTV "down a hill, at an unsafe and/or high rate of speed, with more than one passenger, while or after drinking alcoholic beverages," see RSA 630:3, I. After a nine-day trial, a jury convicted the defendant on all four counts. The trial court sentenced the defendant on the two negligent homicide — DUI counts and imposed no sentences on the two alternative negligent homicide counts. This appeal followed.
We first address the defendant's sufficiency arguments. Because a challenge to the sufficiency of the evidence raises a claim of legal error, our standard of review is de novo. State v. Cable, 168 N.H. 673, 677 (2016). To prevail upon a challenge to the sufficiency of the evidence, the defendant must demonstrate that no rational trier of fact, viewing all of the evidence and all reasonable inferences from it in the light most favorable to the State, could have found guilt beyond a reasonable doubt. Id. In such a challenge, 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. Id.
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A defendant's mental state often must be proved by circumstantial evidence and may be inferred from the defendant's conduct under all the circumstances. State v. Vincelette, 172 N.H. 350, 354 (2019). When the evidence as to an element of proof is solely circumstantial, it must exclude all reasonable conclusions except guilt. Id. The proper analysis is not whether the evidence excludes every possible conclusion consistent with innocence, but whether it has excluded all reasonable conclusions other than guilt. State v. Seibel, 174 N.H. 440, 445 (2021). The question is not whether the defendant has suggested another possible hypothesis that could explain the events in an exculpatory fashion. Id. Rather, we evaluate the evidence in the light most favorable to the State and determine whether the alternative hypothesis is sufficiently reasonable that a rational trier of fact could not have found proof of guilt beyond a reasonable doubt. Id.
As to the DUI charges, the defendant argues there was insufficient evidence that he was impaired. To convict the defendant of negligent homicide — DUI, the State had to prove beyond a reasonable doubt that: (1) the defendant was under the influence of intoxicating liquor; (2) when he operated a propelled vehicle; and (3) caused the deaths of the victims. RSA 630:3, II. To prove that the defendant was under the influence of intoxicating liquor, the State had to prove only that the defendant was impaired to any degree. See State v. Kelley, 159 N.H. 449, 452 (2009).
Viewing the evidence in the light most favorable to the State, we conclude that it was sufficient for a rational jury to find that the defendant was impaired. An EMT and a police officer responding to the scene both testified that the defendant reported drinking 8 to 10 beers the day of the collision. The jury heard that several beer cans were present and scattered at the scene of the collision; some were empty while others were opened and had foam coming out of them. Multiple first responders testified that they detected the smell of alcohol on the defendant and observed that he exhibited slurred speech. An EMT who examined the defendant after the collision testified that the defendant reported experiencing dizziness, and the EMT later observed the defendant sleeping on a stretcher before he was transported to the hospital. The EMT also testified that dizziness and sleepiness may be consistent with impairment. Contrary to the defendant's claim that the evidence of impairment was solely circumstantial, the defendant's statement that he consumed 8 to 10 beers and the observations of the defendant made by those who responded to the scene constitute direct evidence of impairment that the jury could consider in its deliberations. See id. at 454 (stating that officer's observations that the defendant crossed the double yellow line, brought her vehicle to a sudden stop, and displayed slow and unsteady movements, along with defendant's admission to officer that she had been drinking alcohol, "constitute direct evidence of impairment").
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The jury also heard that the defendant refused to submit to a blood draw as required by RSA 265-A:4 (2024), see RSA 265-A:10 (2024) (providing that refusal to submit to blood alcohol test required under RSA 265-A:4 is admissible evidence), and that the defendant also refused to comply with a search warrant for officers to obtain a blood draw. Hospital staff eventually took blood samples from the defendant approximately five hours after the collision occurred. A state police toxicologist testified that these samples had blood alcohol concentrations (BAC) ranging between 0.054 and 0.075 grams per 100 milliliters at the time the samples were taken. Another forensic toxicologist retained by the State testified that she performed a retrograde extrapolation analysis using data from these blood samples. Based on this analysis, she estimated that the defendant's BAC at the time of the collision was between 0.097 and 0.233. The jury heard that a BAC within this range can cause slurred speech, diminished coordination, drowsiness or passing out, and other effects. The jury also heard that the second expert performed an additional retrograde extrapolation analysis that accounted for the possibility, though perhaps unlikely, that as many as two alcoholic beverages were unabsorbed in the defendant's stomach at the time of the collision, in which case the defendant's BAC at the time of the collision could have been as low as
0.058. The jury heard that, even with a BAC below the legal limit of 0.08, a person may still experience decreased reaction time, impaired critical judgment, or increased impulsivity and risk taking.
To prove that the defendant was under the influence of intoxicating liquor, the State needed to prove beyond a reasonable doubt only that the defendant was impaired to any degree. See Kelley, 159 N.H. at 452. Based upon our review of the evidence as a whole and all reasonable inferences drawn therefrom viewed in the light most favorable to the State, we conclude that a rational jury could find beyond a reasonable doubt that the defendant was impaired when he operated the UTV. See id. at 454-55.
Next, as to both the DUI and non-DUI charges, the defendant contends that the evidence failed to establish that his impairment or otherwise negligent operation of the UTV was the cause of the crash. With respect to the non-DUI charges, he also challenges the sufficiency of the evidence that his conduct amounted to criminal negligence. He asserts that the evidence on these issues was solely circumstantial. We assume without deciding that the evidence on these issues was solely circumstantial but nevertheless conclude that it was sufficient.
Here, as to the DUI charges, there was sufficient evidence for the jury to find that the defendant's impairment was the cause of the collision and the deaths of the victims. The jury heard how, relevant to the operation of a motor vehicle, alcohol affects a person's judgment and the ability to process what they see and to react quickly. After the collision, the defendant told one officer that he believed he was driving 40 to 50 miles per hour before striking the tree. The
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defendant told the same officer that, as he was driving down the hill, the UTV's accelerator was stuck and he was unable to brake before striking the tree. The jury also heard that a subsequent inspection of the UTV revealed no apparent deficiencies with the vehicle's brake system, steering, or throttle. Moreover, the deputy chief medical examiner who performed autopsies on the victims testified that their injuries were consistent with being ejected from a vehicle traveling at a high rate of speed. Based on this evidence, a rational jury could conclude beyond a reasonable doubt that the defendant's impairment caused him to travel at an unsafe speed, lose control of the UTV, and collide with a tree, thereby causing the victims' deaths. See Cable, 168 N.H. at 678-79 (holding evidence sufficient for jury to find that defendant's impairment caused him to operate boat dangerously and caused victim to fall overboard to his death). We also disagree with the defendant's argument that the evidence failed to otherwise establish that he was criminally negligent in operating the UTV and that his negligent operation caused the victims' deaths. To convict the defendant of negligent homicide, the State had to prove that the defendant negligently caused the deaths of the victims. RSA 630:3, I; see also RSA 626:2, II(d) (2016). Here, there was sufficient evidence for a rational jury to find that the defendant operated a UTV "down a hill, at an unsafe and/or high rate of speed, with more than one passenger," as alleged in the negligent homicide indictments. There is no dispute that the defendant had two passengers in the UTV, while the record shows that the vehicle was designed to carry only one passenger, was equipped with only two seatbelts, and had no backseat. As discussed, the defendant told one officer he believed he was driving 40 to 50 miles per hour before the collision, which the deputy chief medical examiner testified would be consistent with the victims' injuries. The jury was shown photos of the collision scene and heard testimony that the defendant was traveling downhill immediately before the collision.
The defendant suggests that this evidence failed to exclude the reasonable conclusion that one of the passengers was accidentally depressing the throttle pedal, thereby preventing the UTV from braking. Based on the evidence, however, we cannot conclude that this alternative hypothesis is sufficiently reasonable that a rational jury could not have found proof of guilt beyond a reasonable doubt. See State v. Sanborn, 168 N.H. 400, 414 (2015). Instead, based on the evidence viewed as a whole, a rational jury could conclude that, when the defendant drove a UTV down a hill at an unsafe speed, with more than one passenger, and while or after consuming alcohol, he failed to become aware of a substantial and unjustifiable risk that death would result from his conduct. See RSA 626:2, II(d). A rational jury could have also found that his failure to become aware of this risk constituted a gross deviation from the conduct that a reasonable person would observe under the circumstances. See id. Thus, we conclude there was sufficient evidence that the defendant acted negligently and that his negligence caused the victims' deaths. See State
v. Cummings, 177 N.H. 291, 297-98 (2025), 2025 N.H. 15, ¶¶16-20 (concluding
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there was sufficient evidence for jury to find that defendant negligently caused infant daughter's death by exposing her to unsanitary living conditions and failing to seek medical care despite her deteriorating health condition, which was apparent to defendant's family members).
We now turn to the defendant's argument that the trial court erred in admitting evidence — disclosed for the first time after the fifth day of trial — that a conservation officer who responded to the collision scene contacted the state police "crash team" to request an accident reconstruction. We review challenges to a trial court's evidentiary rulings under our unsustainable exercise of discretion standard. State v. Smith, 169 N.H. 602, 613 (2017). To demonstrate an unsustainable exercise of discretion, the defendant must show that the trial court's ruling was clearly untenable or unreasonable to the prejudice of his case. Id.
The defendant argues that the defense strategy centered on the lack of an accident reconstruction analysis and that the late-disclosed testimony
"clearly and logically implied that the State's failure to conduct an accident reconstruction analysis was not an unconsidered oversight . . . [r]ather, it indicated that law enforcement thoroughly investigated the accident and that an accident investigation analysis would not yield any relevant information."
The defendant contends that the admission of this late-disclosed testimony
"irreparably undermined the credibility" of his defense and was thus unfairly prejudicial. We disagree.
To the extent that the defendant suggests the late disclosure amounted to a discovery violation, he does not identify a court order or cite a discovery rule that the State purportedly violated. The State, in turn, argues that the late disclosure did not violate New Hampshire Rule of Criminal Procedure 12 because the State did not withhold the evidence — which the defendant does not contend was exculpatory — and provided the evidence to defense counsel as soon as the State became aware of it. See N.H. R. Crim. P. 12(b)(1)(B), (E), (b)(4)(B), (D), (b)(7). We agree that the late disclosure of the evidence did not violate Rule 12, and we therefore cannot conclude that the trial court's ruling was clearly untenable or unreasonable. See id.; Smith, 169 N.H. at 613. Even if we assume that the State committed a discovery violation, we conclude that the defendant "was not prejudiced by the late disclosure." State
v. Stickney, 148 N.H. 232, 236 (2002). In her opening statement, defense counsel stated that
not a single accident reconstruction expert was ever retained by the State. A routine part of police investigation to determine how an accident takes place. And you will learn what an accident reconstructionist expert does. You will learn that there are many tools that they could undertake to make those determinations, or
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certainly rule out what might have happened and what not might have happened. Where an accident might have begun . . . from different markings in the ground, different measurements . . . none of this was taken and all of it could have been investigated. An opportunity lost. Actions never taken by the State in this instance. Then, through cross-examination of the State's witnesses, the defendant consistently suggested that the State failed to properly investigate the collision, including by not conducting an accident reconstruction.
These points were not undermined by the officer's testimony, the extent of which was that he contacted the crash team at the scene of the collision and requested an accident reconstruction, and that he informed prosecutors of this conversation for the first time during trial. The jury did not hear testimony that the crash team declined to investigate the scene, nor their reasoning for doing so. Therefore, the officer's testimony did not contradict the representations defense counsel made to the jury during her opening statement — namely that the State never retained an accident reconstruction expert — nor did it undermine the defense strategy that sought to point out the State's missteps in investigating the collision.
Moreover, the defendant has not shown that he suffered prejudice in his trial preparation based on this evidence. The defendant's assertions that his strategic decisions before and during trial "could not be adjusted to fairly account for the late-disclosed evidence" and that he "had no ability to undo pre-trial decisions related to investigating the cause of the accident" are too speculative and vague to persuade us that he was unfairly prejudiced by the trial court's ruling. Cf. State v. Verrill, 175 N.H. 428, 443 (2022) (affirming trial court's conclusion that defendant's assertions that his trial strategy was prejudiced by late-disclosed discovery materials were "speculative, vague, and lacking in articulation of how he would have altered his trial strategy in light of the untimely-disclosed materials" (quotation omitted)). Therefore, we cannot conclude that the trial court's ruling was an unsustainable exercise of discretion. See State v. Belton, 150 N.H. 741, 746-47 (2004) (concluding that, even assuming State violated discovery rules, trial court did not unsustainably exercise its discretion by admitting late-disclosed evidence because defendant
"failed to prove that the admission of the evidence prejudiced his case"). Lastly, we also reject the defendant's argument that the evidence constituted inadmissible "implied hearsay." The testimony was not inadmissible hearsay because, as described above, the officer did not testify as to what the crash team told him or why the crash team declined to investigate the scene; thus, there was no out-of-court statement that was offered to prove the truth of the matter asserted. See N.H. R. Ev. 801(c) (defining hearsay as a statement "the declarant does not make while testifying" that "a party offers in evidence to prove the truth of the matter asserted in the statement").
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Any issues the defendant raised in his notice of appeal but did not brief are deemed waived. See State v. Blackmer, 149 N.H. 47, 49 (2003). Affirmed.
MACDONALD, C.J., and DONOVAN, COUNTWAY, and GOULD, JJ., concurred.
Timothy A. Gudas, Clerk