State v. KuykendallState v. Kuykendall
- Reporters:
- ,
- Before:
- Vanzi, James J. Wechsler, J. Miles Hanisee
MEMORANDUM OPINION
VANZI, Judge.
BACKGROUND
{3} The State charged Defendant with two crimes: intentional or negligent child abuse resulting in death as to B.K., and intentional or negligent child abuse not resulting in death or great bodily harm as to T.C. Prior to trial, the State announced it was only proceeding on a theory of negligent child abuse. The State introduced the
{4} Several weeks before B.K. died, when Defendant returned from work, Elliot showed her “huge” bruises on B.K. Elliot claimed he had tripped over B.K. and some tools left on the floor at the house but also admitted that some of the bruises were from spanking B.K. too hard. Defendant testified that she doubted Elliot‘s explanation. She voiced her concerns to Montgomery several days later and told Montgomery she knew Elliot was abusing B.K. when she was at work because B.K. had new bruises every time she came home. According to Montgomery, Defendant said she needed to save money so she could leave Elliot and get her children away from him before B.K. ended up dead. After the above incident, and because of Defendant‘s fears, Montgomery and Elliot‘s father let B.K. stay with them for several days until
{5} A jury convicted Defendant of both crimes. The district court mitigated Defendant‘s sentences by one-third and ran them concurrently. However, it found that both offenses were serious violent offenses under the EMDA. This appeal followed. Additional facts are provided as pertinent to our discussion of the issues.
DISCUSSION
{6} Defendant makes five claims of error: (1) that her conviction for negligent child abuse resulting in the death of B.K. was not supported by sufficient evidence, (2) that the jury was not properly instructed, (3) that the expert scientific testimony concerning
Sufficiency of the Evidence as to Count I
{7} Defendant first contends the evidence was not sufficient to sustain her conviction for negligently permitting child abuse resulting in the death or great bodily harm of B.K. “In reviewing the sufficiency of the evidence, we must view the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. We then determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (emphasis, internal quotation marks, and citation omitted). We do not second guess the jury concerning witness credibility, the weight of the evidence, or their judgment. State v. Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057.
{8} We turn to the jury instructions for the elements of the crime. See State v. Smith, 1986-NMCA-089, ¶ 7, 104 N.M. 729, 726 P.2d 883 (“Jury instructions become the
- [Defendant] permitted [B.K.] to be placed in a situation which endangered [his] life or health . . . ;
- [D]efendant acted with reckless disregard and without justification. To find that [Defendant] acted with reckless disregard, you must find that [Defendant] knew or should have known [D]efendant‘s actions or failure to act created a substantial and foreseeable risk, [D]efendant disregarded that risk and [D]efendant was wholly indifferent to the consequences of the conduct and to the welfare and safety of [B.K.]
- [Defendant‘s] actions or failure to act resulted in the death of [B.K.]
. . . .
Defendant argues only that there was insufficient evidence to show she disregarded a “substantial and foreseeable risk” of B.K.‘s death or great bodily harm. Defendant concedes that the evidence indicated Elliot had previously abused the children. However, she contends it also showed that several weeks prior to B.K.‘s death, she “had taken steps to end that abuse,” that Elliot had since been abiding by her request to not discipline the children, that “the children seemed happy and fine on the evening of May 6,” that Elliot “was not intoxicated or outwardly hostile towards the children
{9} The language “substantial and foreseeable risk” is used in
{11} Defendant argues that three separate errors concerning the jury instructions require retrial in this case. “When considering a defendant‘s requested instructions, we view the evidence in the light most favorable to the giving of the requested instruction.” State v. Romero, 2005-NMCA-060, ¶ 8, 137 N.M. 456, 112 P.3d 1113. Our review is de novo. Id.
{12} Defendant first argues the district court erred in refusing her request for a lesser included instruction on abandonment resulting in death or great bodily harm for Count I. The district court refused to give an abandonment instruction because it found that, based on the definition of the crimes, child abandonment was a separate offense, not a lesser included offense of negligent child abuse. It further found that no facts presented at trial supported Defendant‘s theory of abandonment because there was no evidence of “neglect” as that term is defined in the child abandonment statute.
{13} A defendant is entitled to a lesser included offense instruction when “(1) the lesser offense is included in the greater, charged offense; (2) there is evidence tending to establish the lesser included offense and that evidence establishes that the lesser offense is the highest degree of crime committed; and (3) the defendant has tendered appropriate instructions preserving the issue.” State v. Jernigan, 2006-NMSC-003, ¶ 21, 139 N.M. 1, 127 P.3d 537. Without elaboration, Defendant argues that the jury
{14} We briefly address the preservation issue first. While
{15} Here, although Defendant did not submit the elements instruction for abandonment resulting in great bodily harm or death as set forth in
{16} As we have noted, the definition of abuse of a child is set out in
{17} Defendant makes two additional arguments related to the instructions given at trial. Because she did not preserve either argument, we review both claims for fundamental error. See State v. Boeglin, 1987-NMSC-002, ¶ 11, 105 N.M. 247, 731 P.2d 943 (explaining that, where a defendant fails to preserve an objection to jury instructions at trial, the court may only grant relief in cases of fundamental error). “Fundamental error only applies in exceptional circumstances when guilt is so doubtful that it would shock the judicial conscience to allow the conviction to stand.” State v. Baca, 1997-NMSC-045, ¶ 41, 124 N.M. 55, 946 P.2d 1066, overruled on other grounds by State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783.
{18} Defendant first contends the jury should have been given a lesser included instruction for child abuse not resulting in great bodily harm for Count I because “the jury could have found that [she] disregarded a foreseeable risk of abuse not resulting in great bodily harm, but did not disregard a foreseeable risk of death or great bodily harm.” However, Defendant fails to argue, much less establish, how this hindsight driven speculation constitutes fundamental error, and we see none. See State v. Villa, 2004-NMSC-031, ¶ 16, 136 N.M. 367, 98 P.3d 1017 (concluding that there was no fundamental error where the state made a strategic decision not to request lesser included offense instructions at trial and its strategy did not prevail).
{19} Defendant also asserts that the instruction given for Count I, which is the uniform jury instruction for negligently permitting child abuse, is erroneous because the definition of “reckless disregard” provided in that instruction does not sufficiently inform jurors what the mens rea for the crime is. Our task in reviewing for fundamental error is to determine “whether a reasonable juror would have been confused or misdirected by the jury instruction.” State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (internal quotation marks and citation omitted). “[J]uror confusion or misdirection may stem . . . from instructions which, through
{20} Citing Chavez, Defendant contends that the jury should have been explicitly instructed “that the magnitude of the risk of the resulting harm occurring is an aspect of whether the risk of harm was ‘substantial and foreseeable,’ ” and specifically that the “resulting harm” informs whether the risk Defendant disregarded was substantial and foreseeable. 2009-NMSC-035, ¶ 23. To the extent Defendant argues that the magnitude of the harm the child actually incurs is determinative, she misconstrues Chavez. That case makes clear that it is the magnitude of the risk of harm to which the defendant exposes the child that guides our analysis. Id. ¶ 15. Defendant also overlooks that Chavez cited favorably to the same mens rea standard about which she complains. Id. ¶ 22. Specifically, our Supreme Court noted that, to find the accused acted with the requisite mens rea, the jury is instructed that it must find that the “defendant‘s conduct created a substantial and foreseeable risk of harm,” and that the instruction “aligns with the legislative purpose that animates the child endangerment statute—to punish conduct that creates a truly significant risk of serious harm to children.” Id. ¶ 22 (internal quotation marks and citations omitted). Based on the evidence, the risk that Elliot would abuse the children was both foreseeable and
Confrontation Clause and Expert Scientific Testimony
{21} Defendant makes two arguments regarding the expert testimony admitted in this case, both of which she contends are violations of her right to confrontation. “Under the Confrontation Clause, out-of-court testimonial hearsay is barred unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness.” State v. Cabezuela, 2011-NMSC-041, ¶ 49, 150 N.M. 654, 265 P.3d 705 (alterations, internal quotation marks, and citation omitted). This Court reviews issues of admissibility under the Confrontation Clause de novo. State v. Gurule, 2013-NMSC-025, ¶ 33, 303 P.3d 838.
{24} Defendant also claims Dr. Hwang testified “about how the procedures are normally done, tacitly suggesting to the jury that these procedures were followed in this case,” and that she was not able to test this assertion because the persons who performed the tests did not testify. We disagree. First, Defendant cites no testimony in which Dr. Hwang claims the persons who physically conducted the chemical testing certified the procedures they followed or their results, and no such certification was entered into evidence. See Huettl, 2013-NMCA-038, ¶ 28 (noting that cases from the United States Supreme Court “do not support the notion that a defendant has the right to confront a laboratory analyst who, having participated in some aspect of evidence analysis, nevertheless did not record any certifications, statements, or conclusions that were offered as evidence“). In addition, Defendant did not challenge whether the proper procedures were actually followed in B.K.‘s case by cross-examining Dr. Hwang regarding his lack of personal knowledge about how the lab work was done. Consequently, there was no violation of Defendant‘s confrontation rights with regard to Dr. Hwang‘s testimony.
{25} Defendant also contends that her confrontation rights were violated when Dr. Ian Paul, the supervising forensic pathologist at the Office of the Medical Investigator
{26} Defendant challenges Dr. Paul‘s personal involvement in the autopsy solely by asserting that Detective Helton, who was present at B.K.‘s autopsy, testified that he only recalled seeing a female pathologist in the room during the autopsy. However,
Clerical Error on Jury Verdict Form
{27} Defendant contends that the district court committed reversible error by submitting and accepting a written verdict form for intentional child abuse instead of for negligent child abuse for Count I. Neither party knows how the wrong verdict
{28} “It is well settled that if there is any doubt about a verdict [the appellate courts are] entitled to interpret the verdict by reference to the whole record and particularly by reference to the instructions given by the lower court.” State v. Reed, 1951-NMSC-021, ¶ 22, 55 N.M. 231, 230 P.2d 966. In this analysis, “[v]erdicts should be liberally construed and all fair intendments should be made to sustain them. A verdict should be rejected only when it is either ambiguous, incomplete or unresponsive to the issue or issues submitted by the court.” State v. Tijerina, 1972-NMCA-169, ¶ 21, 84 N.M. 432, 504 P.2d 642. Our goal is to discern the jury‘s intention. See Reed, 1951-NMSC-021, ¶ 22.
{29} Here, the jury was instructed only on negligently permitting child abuse resulting in death or great bodily harm for Count I. It was not given any instruction on intentional child abuse. Further, the only mention of intentional child abuse was on the erroneous form that was submitted to the jury. That form was the only verdict form submitted for Count I. Under these circumstances—where there was only one instruction and only one verdict form for Count I, and the jury was instructed only on the crime for which Defendant was tried—we believe there is sufficient indicia that the jury intended to convict Defendant of the charge in Count I. We further note that
The District Court‘s Designation of the Crimes as “Serious Violent Offenses” Under the EMDA
{30} Lastly, Defendant contends that the district court erred in determining that the negligently permitting child abuse convictions were serious violent offenses for the purposes of the EMDA. Defendant argues both that the district court‘s findings were legally inadequate under the EMDA to establish she committed serious violent offenses, and that the findings the district court made during the mitigation stage of her sentencing require a finding that the offenses were not serious violent offenses. We review the district court‘s designation of a crime as a serious violent offense for an abuse of discretion. State v. Solano, 2009-NMCA-098, ¶ 7, 146 N.M. 831, 215 P.3d 769. However, because a court abuses its discretion when it acts contrary to law, we review de novo the legal sufficiency of the district court‘s findings in support of its serious violent offense designation. Id. If we determine the district court‘s findings
{31} The EMDA provides that prisoners convicted of serious violent offenses may earn only four days a month of credit against their time in prison for participating in certain programs, while prisoners convicted of nonviolent offenses may earn up to thirty days a month.
{32} Although a district court has the authority to deem the discretionary offenses serious violent offenses, it may do so only when it finds that the “nature of the offense and the resulting harm” warrants such a finding.
{33} The State argues that we should overturn Morales and its progeny because those cases are contrary to various rules of statutory construction. However, the State does not explain how the law has developed or the facts have changed since we decided that case, and even its own argument recognizes that our appellate courts have
{34} Since Morales, our appellate courts have continued to require that district courts make specific findings regarding both the nature of the offense and the resulting harm to support a serious violent offense designation. See State v. Loretto, 2006-NMCA-142, ¶ 14, 140 N.M. 705, 147 P.3d 1138. The reason behind the requirement is twofold: “to inform the defendant being sentenced of the factual basis on which his [or her] good time credit is being substantially reduced, and to permit meaningful and effective appellate review of the court‘s designation.” Id. ¶ 12. Although these findings do not have to be expressed in the exact language of Morales, they must be sufficient to demonstrate the factual basis upon which the district court made its ruling. State v. Montoya, 2005-NMCA-078, ¶ 8, 137 N.M. 713, 114 P.3d 393.
{36} Defendant also contends that the factual findings the district court made pertaining to her behavior and mental state cannot support the conclusion that the offenses are serious violent offenses. Again, Morales makes clear that the district court must make findings specifically related to its serious violent offense designation in the first instance. 2002-NMCA-016, ¶ 18. It did not do so. To the extent that the district court considered mitigating factors for sentencing purposes, we note that mitigation and a serious violent offense designation are distinct concepts. The mitigation statute allows a district court to reduce a defendant‘s underlying sentence by considering “any mitigating circumstances surrounding the offense or concerning the offender[.]”
{37} We reverse the district court‘s serious violent offense designation and remand so that the district court can consider the evidence and make the appropriate findings regarding both the nature of Defendant‘s offenses and the resulting harm to B.K. and T.C., preferably in the written judgment and sentence. We note that in doing so, the court is to follow the direction of Morales and its progeny. See Loretto, 2006-NMCA-142, ¶¶ 18-19. Specifically, with regard to the nature of the offenses, the district court should enter findings regarding whether the crimes were “committed in a physically violent manner either with an intent to do serious harm or with recklessness in the face of knowledge that one‘s acts are reasonably likely to result in serious harm.” Morales, 2002-NMCA-016, ¶ 16. Because we are remanding based on the legal sufficiency of
Clerical Error on Judgment and Sentence
{38} As a final, undisputed matter, in its brief the State points out a clerical error on Defendant‘s judgment and sentence: although Defendant was convicted of negligently permitting child abuse, the judgment and sentence states she was convicted of negligently causing child abuse. We direct the district court on remand to correct this error.
CONCLUSION
{39} We affirm Defendant‘s conviction for Count I, negligently permitting child abuse resulting in the death of B.K. We reverse the district court‘s designation of both counts of child abuse in this case as serious violent offenses and remand so the district court can consider the evidence and enter the appropriate factual findings, as well as correct the above mentioned clerical error in the judgment and sentence.
{40} IT IS SO ORDERED.
LINDA M. VANZI, Judge
WE CONCUR:
JAMES J. WECHSLER, Judge
J. MILES HANISEE, Judge