State v. WilsonState v. Wilson
Lead
OPINION
{1} Fоllowing the United States Supreme Court’s announcement of its decision in Apprendi v. New Jersey,
{2} Defendant was convicted of child abuse resulting in death, contrary to
{3} On appeal, Defendant raises four issues: (1) whether an increase in a basic felony sentence under
{4} We hold that (1)
FACTS AND PROCEDURAL HISTORY
{5} On July 20, 1998, Defendant was at home alone with her two children and two step-children. After the children went to bed, Defendant went in to cheek on them and found that the victim, her two and one-half year old step-son, was not breathing. Defendant called her husband and then called 911. She performed CPR on the victim until the ambulance and police arrived. The victim was transported to the emergency room where he was pronounced dead.
{6} At trial, Defendant testified that on the night of the victim’s death, her step-son had been acting up and refused to go to bed when she asked him to do so. She said that she picked the victim up and playfully tossed him into bed, something that both Defendant and her husband testified that they often did with the children. Defendant testified that she heard the victim’s head hit something on the bed, but that when she cheeked on him his еyes were open and he was not crying. Only later, when she checked on the victim a second time, did Defendant realize that the victim was no longer breathing.
{7} When Defendant arrived at the emergency room, she told the attending physician that the victim had fallen several days earlier and that the victim had been throwing tantrums, during which he would throw himself on the floor and bang his head. Defendant did not tell the doctor that she had tossed the victim onto the bed. In addition, Defendant admitted that she never told anyone in law enforcement about tossing the victim into bed, and Defendant’s husband testified that Defendant did not tell him this version of events until several days after the victim’s death.
{8} Defendant was charged with child abuse resulting in death. Prior to trial, the State learned that Defendant had videotaped a re-enactment of her version of the events leading up to the victim’s death. At the State’s request, the trial court ordered Defendant to provide the State with a copy of the videotape by January 24, 2000. Defendant failed to produce the videotape until February 7, 2000, the. day before the trial began. On February 14, 2000, Defendant asked the trial court to exclude rebuttal testimony
{9} At trial, Defendant presented three defense theories: (1) that the victim’s death was a freak accident caused by Defendant’s playful tossing of the victim into bed, (2) that by tossing the victim into the bed, Defendant unintentionally exacerbated the victim’s prior head injury, or (3) that the victim had injured himself by repeatedly banging his head into the floor while throwing a tantrum. The State offered mediсal testimony that the injuries suffered by the victim were incompatible with Defendant’s three scenarios. The experts testified that the complex skull fractures suffered by the victim were consistent with the victim having been ejected from a ear in a highway-speed automobile accident or with his falling from a two- to four-story building. The experts also testified that the victim had approximately seventeen bruises of varying ages around his head and neck, in addition to bruises on other parts of his body. In addition, the witnesses testified that some of the bruises were in atypical places, and not over bony prominences where one would expect them if they had been caused by the victim falling down. Based on the severity of the skull fractures suffered by the victim as well as the suspicious bruising, the experts concluded that the victim died as a result of child abuse.
{10} After the jury found Defendant guilty of child abuse resulting in death, the trial court held a sentencing hearing, as required by
DISCUSSION
A. Apprendi
{11} Defendant argues that New Mexico’s felony sentencing scheme is unconstitutional under Apprendi,
{12} In Apprendi, the defendant fired several bullets into the home of an African American family that had recently moved into a previously all-white neighborhood.
{13} The crux of Defendant’s challenge to the New Mexico sentencing scheme is her argument that the maximum sentence authorized by a jury’s verdict is the basic sentence prescribed by
1.
{14} In scrutinizing the constitutionality of
{15}
A. The court shall hold a sentencing hearing to determine if mitigating or aggravating circumstances exist and take whatever evidence or statements it deems will aid it in reaching a decision. The court may alter the basic sentence as prescribed inSection 31-18-15 NMSA 1978 upon a finding by the judge of any mitigating or aggravating circumstances surrounding the offense or concerning the offender. If the court determines to alter the basic sentence, it shall issue a brief statement of reasons for the alteration and incorporate that statement in the record of the case.
C. The amount of the alteration of the basic sentence for noncapital felonies shall be determined by the judge. However, in no case shall the alteration exceed one-third of the basic sentence____
That the
{16} This conclusion is further supported by a comparison of
{17} The real question, however, is whether the Legislature intended
{18} Prior to 1977, New Mexico used an indeterminate sentencing scheme, under which, for example, a defendant convicted of a second degree felony was sentenced to a term of “not less than ten [10] years nor more than fifty [50] years.” NMSA 1953, § 40A-29-3(B) (1963). Under this scheme, a trial court lacked discretion to impose any term of years other than the minimum and maximum provided by law. See State v. Hovey,
{19} In 1977, the Legislature passed the “Criminal Sentencing Act,” a determinate sentencing scheme which created a range of sentences within which a trial court could set a definite term of imprisonment. 1977 N.M. Laws, ch. 216, § 4. Using the same example as above, for a second degree felony, a court could sentence a defendant to a “definite term of not less than seven years nor more than fifteen years.” Id. Under this scheme, the Legislature transferred the authority to set a defendant’s actual term of imprisonment from the parole board to the sentencing court. Id. §§ 4,12.
{20} In 1979, the Legislature amended the Act by replacing the ranges with basic sentences and adding
{21} In reviewing the history of sentencing in New Mexico, we conclude that the authority of the sentencing court, namely to determine where within the range a particular criminal defendant should be sentenced, has not changed since the 1977 amendment implemented determinate sentencing within a range of years and gave the trial court the authority to impose a sentence of a definite term of years within that range. Rather, we understand the current scheme to be a means of protecting defendants, in a way that was not present from 1977 to 1979, from arbitrary sentencing decisions without the possibility of any appellate review.
{22} We deem it noteworthy that both this Court and the New Mexico Supreme Court, in first ruling on the constitutionality of
{23} Sentencing under the 1977 version of the Act, with its explicit reference to ranges of sentences, would be constitutional under the Apprendi decision. The 1979 amendments merely opened the sentencing process to some potential appellate review, a change that benefits criminal defendants in New Mexico. Defendant’s position, that
2.
{24} Defendant’s argument that
{26} In reviewing the many federal and state cases interpreting the Apprendi opinion, we could find no cases holding that a sentencing scheme like
{27} For example, federal cases have dealt primarily with whether the quantity of drugs possessed by a defendant is an element or a sentencing factor under
{28} State cases decided since Apprendi are similar. In each case, the sentencing court was asked to consider a specific fact or facts to determine whether to sentence a defendant to an enhanced sentence that was beyond the range allowed for the underlying felony. See People v. Tlmrow,
{29} Unlike the sentencing schemes at issue in these federal and state eases, which apply only to defendants convicted of particular crimеs under particular circumstances,
nothing in this history suggests that it is impermissible for judges to exercise discretion-taking into consideration various factors relating both to offense and offender-in imposing judgment within the range prescribed by statute. We have often noted that judges in this countiy have long exercised' discretion of this nature in imposing sentence within statutory limits in the individual case.
B. Aggravating Circumstances
{30} Defendant argues that the trial court abused its discretion by using “lack of remorse” and “initial and continued deception” as aggravating circumstances justifying an increase in Defendant’s basic sentence. Defendant concedes that she failed to preserve this issue below, but asserts that a defendant may challenge the legality of a sentence for the first time on appeal. We take this opportunity to clarify that not all sentencing issues may be raised for the first time on appeal. We hold that, because Defendant failed to object at sentencing, the issue is not properly before us.
{31} While it is true that the issue of whether a sentence was authorized by statute is jurisdictional and may be raised for the first time on appeal, see State v. Jensen,
{32} The rules of preservation are not mere technicalities, but serve an important function in appellate review. Particularly in eases such as the one at bar, the requirements that a party object at trial and invoke a ruling from the trial court insure that the record is adequate for meaningful review and give the trial court an opportunity to correct any alleged errors. The case at bar is an excellent example of the dangers of failing to preserve an issue. Had Defendant alerted the court to the claim of error, the trial court could have explained its reasoning behind each factor and explained the weight afforded to each, such that we would not “have to guess at what was and what was not an issue at trial.” State v. Lucero,
{33} Even if we were to reach this issue, however, we would affirm. We reject Defendant’s contention that these aggravating circumstances were based on Defendant’s refusal to admit guilt. The evidence showed that Defendant had deceived emergency room personnel and law enforcement personnel by not telling them her version of events and waited almost a week to inform her husband of her part in the victim’s death. In addition, her testimony was incompatible with expert testimony. Even under Defendant’s version of events, Defendant admits that her actions contributed to the victim’s death. Defendant could have assumed responsibility for her role without recanting her defense theories. The trial court was entitled to rely on Defendant’s inability to accept this responsibility as a basis for aggravating her sentence.
C. Sufficiency of the Evidence
{34} Defendant argues that the evidеnce introduced at trial was insufficient to support her conviction for child abuse resulting in death. We disagree. In reviewing the sufficiency of evidence used to support a conviction, we determine whether substantial evidence exists to support a finding of guilt beyond a reasonable doubt for every element essential to the conviction. See State v. Rojo,
{35} According to Section 30-6-1(C), abuse of a child “consists of a person knowingly, intentionally or negligently, and without justifiable cause, causing or permitting a child to be ... (1) placed in a situation that may endanger the child’s life or health [or] (2) tortured, cruelly confined or cruelly punished.” At trial, the State bore the burden of proving that Defendant knew or should have known of the danger created by her actions and that she acted with a reckless disregard for the child’s safety and health. See Santillanes v. State,
{36} In Sheldon, we upheld a defendant’s conviction where medical testimony established that the victim had suffered skull fractures on both sides of the head, and medical experts rejected the defendant’s explanation that the injuries could have been caused by a child flipping or jumping into a playpen where the victim was sleeping.
{37} In the case at bar, as in Sheldon, the medical testimony established that the victim suffered a skull fracture to the back of his head, the victim’s injury resulted from extraordinarily substantial force, Defendant was the only person in the household at the time the victim was injured who was physically capable of inflicting the victim’s injury, Defendant admitted tossing the victim back into the victim’s bed and hearing the victim’s head hit something, and there was medical testimony that Defendant’s explanations of how the victim sustained his fatal injury were medically unacceptable. These facts are sufficient to sustain Defendant’s conviction. See id.; Aguayo,
{38} Defendant complains that the trial court abused its discretion by allowing Dr. Karen Campbell to give rebuttal testimony that Defendant claims was essentially direct testimony, and thus resulted in the State restating its case. The State counters that not оnly was the testimony proper rebuttal evidence, but also informs us that the trial court allowed the testimony in part because Defendant was twelve days late in producing a videotaped re-enactment of Defendant’s version of the events leading up to the victim’s death. The trial court concluded that Defendant’s failure to produce the videotape until the day before trial prevented the State from presenting an expert in child injuries in its case in chief. As such, the court admitted the testimony both as genuine rebuttal of the defenses presented at trial and as a remedy for Defendant’s late disclosure.
{39} The admission of rebuttal evidence is within the discretion of the trial court and will not be disturbed absent an abuse of that discretion. State v. Simonson,
{40} The case upon which Defendant relies to support her argument that the testimony was improper rebuttal evidence, Wright v. State,
{41} In the cаse at bar, Dr. Campbell’s rebuttal testimony did not bear as directly or dramatically on Defendant’s guilt, but was offered to rebut two defense theories of how the victim sustained his injuries. First, through Defendant’s own testimony and the videotaped re-enactment, Defendant presented the defense that she had playfully tossed the victim onto the bed, accidentally causing the injuries that resulted in the victim’s death. Dr. Campbell testified that the victim’s injuries could not have been caused in the manner claimed by Defendant. Defendant’s second theory was that the victim had suffered a prior head injury that was exacerbated or “reactivated” when Defendant tossed the victim onto the bed. Dr. Campbell testified that the prior injury had nothing to do with the victim’s death. The State was entitled to present evidence rebutting Defendant’s theories. See Simonson,
{42} Finally, we hold that the trial court did not abuse its discretion by admitting Dr. Campbell’s testimony as a remedy for Defendant’s late disclosure of the videotaped re-enactment. Since the State did not have access to the videotape until the day before trial, it was well within the trial court’s authority to afford the State an opportunity to call Dr. Campbell.
CONCLUSION
{43} For the foregoing reasons, we affirm.
{44} IT IS SO ORDERED.
Concurrence Opinion
(concurring in part and dissenting in part).
{45} Believing that the majority misconstrues the core holding of Apprendi, I dissent. In light of this dissenting position on the issue of aggravating circumstances, I need not address Defendant’s second issue. I concur with the majority opinion with regard to Defendant’s issues concerning the sufficiency of the evidence and the rebuttal witness.
{46} The mаjority frames the Apprendi issue correctly — that is, whether the “maximum sentence authorized by a jury’s verdict is the basic sentence prescribed by
{47} The core concern of the Court in Apprendi is the constitutional right to trial by jury and proof to a jury beyond a reasonable doubt of all facts allowing imposition of the statutory maximum sentence. The Supreme Court starts its analysis with this proposition.
{48} The central role of jury fact finding is illustrated by the Supreme Court’s majority’s responses to Justice O’Connor’s dissent. For example, responding to the dissent’s reliance on Williams v. New York,
{49} Later, responding to the dissent’s “novel view” that the Supreme Court has long recognized that not all facts affecting punishment need go to the jury, the majority concludes from its review of the same evidence that: “The judge’s role in sentencing is constrained at its outer limits by the facts alleged in the indictment and found by the jury. Put simply, facts that expose a defendаnt to a punishment greater than that otherwise legally prescribed were by definition ‘elements’ of a separate legal offense.” Id. at 2359 n. 10.
{50} In a passage closely related to this thought, the Court also notes:
The historic link between verdict and judgment and the consistent limitation on judges’ discretion to operate within the limits of the legal penalties provided highlight the novelty of a legislative scheme that removes the jury from the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.
Id. at 2359.
{51} These statements by the Court — coupled with its repeated citation to In re Winship,
{52} Analyzing New Mexico’s sentencing scheme from this perspective compels the conclusion that it does not comply with the constitution as interpreted in Apprendi.
A. If a person is convicted of a noncapital felony, the basic sentence of imprisonment is as follows:
(1) for a first degree felony, eighteen years imprisonment;
(2) for a second degree felony resulting in the death of a human being, fifteen years imprisonment;
(3) for a second degree felony, nine years imprisonment;
(4) for a third degree felony resulting in the death of a human being, six years imprisonment;
(5) for a third degree felony, three years imprisonment; or
(6) for a fourth degree felony, eighteen months imprisonment.
B. The appropriate basic sentence of imprisonment shall be imposed upon a person convicted of a first, second, third or fourth degree felony or a second or third degree felony resulting in the death of a human being, unless the court alters such sentence pursuant to the provisions of Section[s] 31-18-15.1, 31-18-16, 31-18-16.1 or 31-18-17 NMSA 1978.
Absent application of an enhancement, the jury verdict can only result in imposition of the statute’s “basic sentence” less mitigation. In order to impose any sentence greater than the basic sentence, there must be additional facts found, thus the problem under Apprendi with our statute.
{53} Put another way, under
{54} The majority’s historical review is unavailing. Even if the legislature intended to treat
{55} In any event, I do not agree with the majority’s historical analysis or its approach to statutory construction. First, our case law indicates that New Mexico regards
{56} Second, the language of
B. The appropriate basic sentence of imprisonment shall be imposed upon a person convicted of a first, second, third or fourth degree felony or a second or third degree felony resulting in the death of a human being, unless the court alters such sentence pursuant to the provisions of Section[s] 31-18-15.1, 31-18-16, 31-18-16.1 or 31-18-17 NMSA 1978.
The other statutory provisions listed together with
{57} If
{58} Finally, the majority’s argument that
{59} I conclude that enhancement of the basic sentence pursuant to our aggravation statute,
Notes
. It should be noted that only
. Nonetheless, the irony that the 1977 statute would probably be acceptable under Apprendi is not lost on me.