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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Derry District Court No. 2008-826 THE STATE OF NEW HAMPSHIRE v. JESSICA KELLEY Argued: October 21, 2009 Opinion Issued: December 4, 2009 Orville B. Fitch II, acting attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief, and Susan P. McGinnis, senior assistant attorney general, orally), for the State. Timothy P. Gurshin, of Concord, on the brief and orally, for the defendant. DALIANIS, J. The defendant, Jessica Kelley, appeals her conviction after a bench trial in Derry District Court (Coughlin, J.) of driving while under the influence of intoxicating liquor (DWI). See RSA 265-A:2, I (Supp. 2008). We affirm. A reasonable trier of fact could have found the following. At 12:35 a.m. on April 11, 2008, the defendant was driving north on Rockingham Road in Londonderry toward Derry. Her car crossed over the double yellow line into the

southbound lane, nearly side-swiping Londonderry Police Officer Keith Lee's cruiser. Making a U-turn, Lee turned on his emergency lights and stopped the defendant. She admitted to having consumed alcohol, and he observed several signs that she was intoxicated. He administered the horizontal gaze nystagmus (HGN), "one-leg stand" and walk-and-turn field sobriety tests. He determined that the defendant failed all three tests. At trial, the defendant moved to strike evidence of the HGN test, arguing it was inadmissible because Lee testified that he did not administer it correctly. See State v. Dahood, 148 N.H. 723, 735 (2002). The trial court impliedly denied the motion and admitted the evidence. On appeal, the defendant first argues that the trial court erred in admitting evidence of the HGN test because Lee failed to administer it correctly. The State concedes that the test results were improperly admitted, but argues that any error was harmless. An error is not harmless unless the State proves beyond a reasonable doubt that it did not affect the verdict. State v. Rogers, 159 N.H. 50, 60 (2009). In deciding whether the State has met its burden, we consider the strength of the State's evidence presented at trial, as well as the character of the excluded evidence, including whether the evidence was inconsequential in relation to the State's evidence. Id. "An error may be harmless beyond a reasonable doubt if the alternative evidence of the defendant's guilt is of an overwhelming nature, quantity, or weight and if the inadmissible evidence is merely cumulative or inconsequential in relation to the State's evidence of guilt." Id. Here, other evidence of the defendant's intoxication was of an overwhelming nature, and the HGN test evidence was merely cumulative or inconsequential. Lee initially pulled over the defendant for crossing over the double yellow line into the southbound lane, which nearly resulted in a crash with his cruiser. When he pulled her over, she brought her vehicle to a sudden stop. Her speech was slurred, her face red and her eyes glassy. She emitted a strong odor of alcohol and she admitted to having consumed alcohol that evening. She had difficulty opening her car door, used the door for leverage to get out, and was unsteady on her feet. She failed the one-leg stand and the walk-and-turn field sobriety tests. Even without the HGN evidence, the remaining evidence presented by the State proved beyond a reasonable doubt that the defendant was guilty of DWI, since the State was required only to prove that her ability to operate her vehicle was "impaired to any degree." State v. MacDonald, 156 N.H. 803, 804 (2008) (quotation omitted). Accordingly, the trial court's failure to exclude the HGN evidence was harmless beyond a reasonable doubt. Cf. State v. Hull, 149 N.H. 706, 712 (2003) (holding that evidence of intoxication was sufficient where defendant admitted

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having consumed three beers, smelled of alcohol, had slurred speech, blood shot eyes, swayed while standing, and performed poorly on field sobriety tests). This case is distinguishable from State v. O'Maley, 156 N.H. 125, 128-30 (2007), cert. denied, 129 S. Ct. 2856 (2009). In that case, we held that, while there was no error in admitting a blood sample collection form and a laboratory director's testimony about the defendant's blood test results, had there been error, it would not have been harmless. O'Maley, 156 N.H. at 129-30. In O'Maley, the strength and character of the excluded evidence differed significantly from that at issue here, and the alternative evidence of the defendant's guilt was not of an overwhelming nature. Id. at 130. The O'Maley defendant was involved in a single-car accident, admitted to having been drinking and driving and emitted a strong odor of alcohol, but did not have red or glassy eyes, did not sway, and was not asked to complete any field sobriety tests. Id. Thus, in O'Maley, evidence of the defendant's blood alcohol content was not merely cumulative. Id. Moreover, in contrast to HGN evidence, blood alcohol evidence is sufficient, on its own, to constitute prima facie evidence of intoxication. See RSA 265-A:11 (Supp. 2008); Dahood, 148 N.H. at 734. The defendant next argues that the evidence was insufficient to support her conviction. The State argues that this issue was not preserved by a contemporaneous and specific objection or motion at trial and that we cannot review it for plain error because the defendant did not analyze the sufficiency of the evidence under the plain error doctrine. See Sup. Ct. R. 16-A. We assume, without deciding that the defendant preserved her challenge to the sufficiency of the evidence in the trial court, but we agree with the State that the evidence was sufficient to convict. To convict the defendant, the State was required to prove beyond a reasonable doubt that the defendant drove or attempted to drive a vehicle upon a way while she was "under the influence of intoxicating liquor." RSA 265-A:2, I. To prove that the defendant was "under the influence of intoxicating liquor," the State need only prove beyond a reasonable doubt that the defendant was impaired to any degree. MacDonald, 156 N.H. at 804. The parties disagree about the applicable standard of review for the defendant's sufficiency claim. The defendant contends that "the lack of any chemical evidence renders the State's case a circumstantial case," and that, "[c]onsequently, the State's evidence had to establish impairment beyond a reasonable doubt, to the exclusion of all rational conclusions except guilt." In support of this contention, she cites State v. Lorton, 149 N.H. 732, 733-35 (2003), in which we reversed a DWI conviction for lack of sufficient evidence. The defendant essentially argues that Lorton establishes that any evidence other than chemical test results, including direct observations of a defendant's behavior, constitutes circumstantial evidence of impairment. The State

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counters that if "Lorton can be said to hold that either a witness's direct observations of intoxicated behavior or a witness's opinion that a defendant is impaired based on such observations is always circumstantial evidence of impairment," it "should be clarified or overruled." Both parties analyze ambiguities in our holding in Lorton. We, therefore, take this opportunity to clarify Lorton's implied characterization of all non-chemical evidence as being circumstantial evidence of intoxication. In doing so, however, we emphasize that "[t]he law makes no distinction between direct evidence of a fact and evidence of circumstances from which the existence of a fact may be inferred." State v. Kelley, 120 N.H. 14, 16 (1980); see also 2 C. Fishman, Jones on Evidence

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