State v. Vargas
Annotate this Case
Download PDF
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number: 3 Filing Date: January 12, 2016 4 NO. 33,247 5 STATE OF NEW MEXICO, 6 Plaintiff-Appellee, 7 v. 8 MICHAEL VARGAS, SR., 9 Defendant-Appellant. 10 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 11 Teddy L. Hartley, District Judge 12 Hector H. Balderas, Attorney General 13 M. Anne Kelly, Assistant Attorney General 14 Santa Fe, NM 15 for Appellee 16 Jorge A. Alvarado, Chief Public Defender 17 Mary Barket, Assistant Appellate Defender 18 Santa Fe, NM 19 for Appellant 1 OPINION 2 WECHSLER, Judge. 3 {1} Defendant Michael Vargas, Sr. appeals his convictions on each of twenty-four 4 counts of intentional child abuse by torture, contrary to NMSA 1978, Section 30-65 1(D)(2) (2009). Defendant raises numerous issues on appeal, including (1) violations 6 of his rights to due process and to be free from double jeopardy, (2) the insufficiency 7 of the evidence to support his convictions, (3) prosecutorial misconduct, (4) improper 8 admission of opinion testimony by a non-expert witness, (5) erroneous jury 9 instructions, and (6) sentencing error. We are persuaded that expert testimony related 10 to stun gun technology and the victim’s injuries was improperly admitted through an 11 unqualified lay witness. The admission of this testimony was not harmless and 12 requires reversal of Defendant’s convictions on all counts. Because of this ruling, 13 Defendant’s arguments related to erroneous jury instructions and sentencing decisions 14 are moot. 15 {2} With respect to additional issues raised, our ruling affects Defendant’s request 16 for reversal due to prosecutorial misconduct. However, while prosecutorial 17 misconduct may be so unfairly prejudicial that it bars retrial, Defendant does not 18 request this remedy or develop such an argument on appeal. Because a finding in 19 Defendant’s favor would reduce the number of charges on retrial, we reach 1 Defendant’s sufficiency of the evidence argument and conclude that it lacks merit. 2 Finally, we hold that the twenty-four identical counts contained in the indictment lack 3 the required specificity and constitute a violation of Defendant’s rights to due process 4 and to be free from double jeopardy. Because the evidentiary issue requires reversal 5 of all convictions, we remand for a new trial with instructions designed to cure the 6 due process and double jeopardy problems. 7 BACKGROUND 8 {3} This case arose from allegations of child abuse by D.L. against Defendant, who 9 was his foster father. The Children Youth and Families Department (CYFD) placed 10 D.L. and his older sister L.L. with Defendant and his family in Clovis, New Mexico 11 after the children were removed from their biological mother in Arizona. The 12 children’s biological mother was related to Defendant’s wife. In late July or early 13 August 2010, Defendant purchased a stun gun online that was delivered to the 14 family’s home.1 In mid-October 2010, D.L. first reported to a school counselor that 15 he was being abused at home. After consulting her supervisor and meeting with D.L. 16 again on October 29, 2010, the counselor reported the allegations to CYFD. CYFD 1 17 The attorneys and witnesses in this case use the term “taser” and “stun gun” 18 and “tased” and “stunned” interchangeably when referring to the assaults on D.L. For 19 the purposes of continuity, we use the term “stunned” to describe the assaults and the 20 term “stun gun” rather than “taser” to describe the device. 2 1 conducted its own investigation and removed both children from the home the same 2 day. 3 {4} Accounts of the use of the stun gun on D.L. between early August and October 4 29, 2010 vary. Testimony by D.L. indicated that he was stunned repeatedly by 5 Defendant and Defendant’s sons Mikey and Brandon over the course of three months. 6 When asked on direct examination specifically how many times he was stunned, D.L. 7 did not know. He did testify, however, that (1) Defendant stunned him more than 24 8 times, (2) Mikey stunned him approximately fifteen times, and (3) Brandon stunned 9 him approximately three times. D.L. then testified on cross-examination that he 10 counted to himself each time he was stunned, but he stopped counting at twenty-four 11 times even though he was stunned more than twenty-four times. He further testified 12 that Defendant personally stunned him less than twenty-four times. 13 {5} D.L.’s testimony indicated that the incidents took place both at Defendant’s 14 home, where most of the family members resided, and at Mikey’s home. D.L. testified 15 about two specific incidents, including one when he was stunned on the arm by 16 Mikey on the day the stun gun arrived in the mail and another when Defendant 17 stunned D.L. while the family was visiting at Mikey’s house. He testified that he 18 asked Defendant and Mikey not to stun him and that Defendant would laugh when 19 Mikey stunned him. D.L. also testified that most of the marks on his body during his 3 1 police interview were the result of mosquito bites, although certain specific marks 2 were from the stun gun. 3 {6} Testifying on behalf of the State, L.L’s testimony generally corroborated the 4 pattern of abuse against D.L. by Defendant and his sons, although there were 5 significant inconsistencies between her direct and cross-examination testimony. L.L. 6 initially stated that she first saw D.L. stunned by Mikey at the family’s house on the 7 day the device arrived. On cross-examination, L.L. first testified that D.L. was 8 stunned on two different days in October: once by Mikey in the kitchen of the 9 family’s house and once by Mikey at Mikey’s house when the family went over for 10 a visit. L.L. then testified that Defendant first stunned D.L. while sitting on the couch 11 on the day the device arrived in the mail. After a brief recess, defense counsel again 12 attempted to establish the sequence of events. At this point, L.L. stated simply that 13 she could not remember all the specific incidents, that there were many incidents, and 14 that they happened very fast. L.L consistently testified that she saw D.L. get stunned 15 by either Defendant or his sons between ten and fifteen times. 16 {7} The State’s final witness was Detective Rick Smith. Detective Smith stated that 17 he had been a police officer for twenty-nine years, including as an investigator 18 specializing in sexual assault and child abuse cases with the Clovis Police 19 Department since 2007. Detective Smith also testified as to his experience with stun 4 1 guns similar to the one described by D.L. and L.L. Detective Smith was not offered 2 or qualified as an expert witness on the topic of stun guns or the injurious effects of 3 stun guns to humans. Detective Smith offered substantial testimony related to the 4 operation of stun guns, the types of injuries they create, and the manner in which 5 those injuries heal.2 6 {8} Defendant testified that he purchased the stun gun online, gave it to his son 7 Mikey, and never saw it again. Defendant also testified that he never stunned D.L. 8 and was unaware if, or that, his sons were doing so. 9 {9} Following a jury trial, Defendant was convicted of twenty-four counts of child 10 abuse by torture. 11 IMPROPER EXPERT TESTIMONY 12 Standard of Review 13 {10} Defendant claims that the district court improperly admitted expert opinions 14 offered by Detective Smith as lay witness testimony under Rule 11-701 NMRA. 15 Appellate courts review the admission of evidence for an abuse of discretion. State 16 v. Flores, 2010-NMSC-002, ¶ 25, 147 N.M. 542, 226 P.3d 641. A court abuses its 17 discretion when its evidentiary rulings indicate a misapprehension of the law. State 2 18 We expand upon this testimony below because it forms the basis of one of 19 Defendant’s issues on appeal. 5 1 v. Elinski, 1997-NMCA-117, ¶ 8, 124 N.M. 261, 948 P.2d 1209, overruled on other 2 grounds by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110. If Detective Smith’s 3 testimony was improperly admitted under Rule 11-701, that admission would indicate 4 a misapprehension of our law and constitute an abuse of discretion by the district 5 court. 6 Preservation 7 {11} To preserve evidentiary objections, a defendant must make a timely objection 8 that specifically apprises the trial court of the nature of the claimed error and invokes 9 an intelligent ruling thereon. State v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 10 993 P.2d 1280. Defendant objected to Detective Smith being allowed to testify in an 11 expert capacity without qualification. Defendant’s objection specifically stated that 12 Detective Smith lacked medical training necessary to opine as to the cause of D.L.’s 13 injuries. This objection was sufficient to put the district court on notice as to 14 Defendant’s assertion that Detective Smith was offering opinions that exceeded the 15 scope of lay testimony. 16 Admission of Detective Smith’s Testimony as Lay Witness Opinion Testimony 17 {12} Our rules of evidence create a distinction between opinion testimony offered 18 by an observer and expert witness testimony offered based upon expertise in the 6 1 relevant subject matter area. Compare Rule 11-701, with Rule 11-702 NMRA. Rule 2 701 states: 3 4 If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is 5 A. rationally based on the witness’s perception, 6 7 B. helpful to clearly understanding the witness’s testimony or to determining a fact in issue, and 8 9 C. not based on scientific, technical, or other specialized knowledge within the scope of Rule 11-702 NMRA. 10 In contrast, Rule 702 states: 11 12 13 14 15 16 A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue. {13} In federal courts, Federal Rule of Evidence 701 (Rule 701) governs lay opinion 17 testimony and was amended in the year 2000 in order to “eliminate the risk that the 18 reliability requirements set forth in [Fed. R. Evid.] 702 [(Rule 702)] will be evaded 19 through the simple expedient of proffering an expert in lay witness clothing.” Rule 20 701 advisory comm. notes, 2000 amends. The rule “does not distinguish between 21 expert and lay witnesses, but rather between expert and lay testimony.” Id. Under 22 Rule 701, it “is possible for the same witness to provide both lay and expert testimony 23 in a single case,” but “any part of a witness’s testimony that is based upon scientific, 7 1 technical, or other specialized knowledge . . . is governed by the standards of [Rule] 2 702.” Id. 3 {14} New Mexico’s Rule 11-701 is modeled upon Rule 701 and was amended in 4 2006 to guarantee application consistent with the federal rule. See Rule 11-701 5 Comm. Commentary (“The addition of Paragraph C in 2006 brought this rule into 6 alignment with federal rule 701. This amendment was made to the federal rule in 7 2000 to avoid the misuse of the lay witness opinion rule as a guise for offering 8 testimony that in reality is based on some form of claimed expertise of the 9 witness. . . . If the witness testifies [as to] scientific, technical or other specialized 10 knowledge, then the admissibility of such testimony must be analyzed under Rule 11 11-702 NMRA for expert testimony.”). Since the language and intent of our Rule 1112 701 mirrors that of Rule 701, we do not hesitate to look to federal court analysis of 13 proper and improper lay opinion testimony. Kipnis v. Jusbasche, 2015-NMCA-071, 14 ¶ 7, 352 P.3d 687, cert. granted, 2015-NMCERT-___ (No. 35,249, June 19, 2015) 15 (“When the state and federal evidence rules are identical, we may rely on 16 interpretations of the federal rule as persuasive authority.”). 17 {15} Whether lay opinion testimony is admissible requires a two-step analysis. First, 18 the court must find that the opinion is based on personal perception or personal 19 observation by the witness. Hansen v. Skate Ranch, Inc., 1982-NMCA-026, ¶ 22, 97 8 1 N.M. 486, 641 P.2d 517. Second, the opinion must be rationally based on the 2 witness’s own perception or observation. Sanchez v. Wiley, 1997-NMCA-105, ¶ 17, 3 124 N.M. 47, 946 P.2d 650. The content of such testimony “is generally confined to 4 matters which are within the common knowledge and experience of an average 5 person.” State v. Winters, 2015-NMCA-050, ¶ 11, 349 P.3d 524 (internal quotation 6 marks and citation omitted).3 7 {16} The testimony of law enforcement officers presents a particular challenge to 8 courts given that an officer’s personal perception of events is often informed by 9 technical or other specialized knowledge obtained through the officer’s professional 10 experience. The training and daily interactions undertaken by law enforcement 11 officers are not part of the “common knowledge and experience of an average 12 person.” Id. ¶ 11 (internal quotation marks and citation omitted). However, law 13 enforcement officers regularly make observations in the course of their professional 14 15 16 17 18 19 20 21 3 Our appellate cases provide non-exhaustive lists of subject matter areas in which lay opinion testimony is properly admitted. See Bunton v. Hull, 1947-NMSC005, ¶ 27, 51 N.M. 5, 177 P.2d 168 (listing “identity of persons or things; the age, health, physical condition, and appearance of a person; the lapse of time; the dimensions and quantities of things” as areas where lay opinion testimony is appropriate); State v. Alberico, 1993-NMSC-047, ¶ 45, 116 N.M. 156, 861 P.2d 192 (listing “circumstances involving value, voice and handwriting identification, sanity, or speed” as areas where lay opinion testimony is appropriate). 9 1 duties, such as the speed of an automobile, that are proper lay opinion testimony from 2 either an officer or a casual observer. 3 {17} Our district courts perform the function of gatekeepers in order to ensure that 4 properly admitted lay opinion testimony is not contaminated by improper expert 5 testimony. See, e.g., State v. Downey, 2008-NMSC-061, ¶ 25, 145 N.M. 232, 195 6 P.3d 1244 (describing trial judges as gatekeepers with respect to relevance and 7 reliability of evidence). This Court has frequently determined the admissibility of 8 non-expert opinion testimony by law enforcement officers. See, e.g., State v. 9 Wildgrube, 2003-NMCA-108, ¶¶ 12-15, 134 N.M. 262, 75 P.3d 862 (holding that 10 officer’s personal observation of the debris field from an automobile accident allowed 11 testimony as to the nature of the accident); Hansen, 1982-NMCA-026, ¶¶ 21, 24 12 (holding that officer’s personal observations made at a roller rink allowed testimony 13 as to the absence of safety protocol); State v. Gerald B., 2006-NMCA-022, ¶ 23, 139 14 N.M. 113, 129 P.3d 149 (holding that expert testimony is not required to identify 15 marijuana); cf. State v. Duran, 2015-NMCA-015, ¶ 15, 343 P.3d 207 (holding that a 16 forensic examiner’s personal observations of child sexual assault victims did not 17 allow lay testimony as to the behavior of victims generally). We reiterate that the 18 content of lay opinion testimony is properly limited to “matters which are within the 19 common knowledge and experience of an average person.” Winters, 2015-NMCA10 1 050, ¶ 11 (internal quotation marks and citation omitted). When the line between lay 2 and expert opinion is blurred during the course of a single witness’s testimony, it is 3 the proper function of the district court, as gatekeeper, to correct the error when 4 raised. 5 {18} United States v. Jones, 739 F.3d 364 (7th Cir. 2014), provides a comprehensive 6 discussion of this principle. In that case, the defendant was charged with bank 7 robbery. Id. at 366. The prosecution argued that the defendant participated in the 8 robbery, that he placed bait money containing a dye pack in his pocket, and that the 9 dye pack exploded causing a grapefruit-sized burn on the defendant’s thigh. Id. at 10 367. On appeal of his conviction, the defendant argued that the trial court allowed 11 improper expert testimony by the investigating detective under the guise of lay 12 testimony. Id. at 366-67. The testimony in question related to the technical functions 13 of dye packs and physical injuries caused by dye packs. Id. at 367. The prosecution 14 did not offer or qualify the detective as an expert. Id. at 368. The detective testified 15 that (1) a dye pack is designed to detonate between ten and thirty seconds after 16 leaving a bank; (2) the purpose of this delay is to create witnesses outside the bank; 17 (3) a dye pack instantly burns at approximately 400 degrees, releases smoke, tear gas, 18 and red dye; (4) he had seen burns caused by dye packs three to five times during his 11 1 career; and (5) a dye pack can cause severe burns if it ignites in close proximity to the 2 body. Id. at 367-68. 3 {19} The Seventh Circuit held that the witness’s testimony was comprised of both 4 lay and expert opinions. In arriving at this conclusion, the court noted that 5 6 7 8 9 10 [l]ay testimony is based upon one’s own observations, with the classic example being testimony as to one’s sensory observations. . . . In contrast, testimony moves from lay to expert if an officer is asked to bring her law enforcement experience to bear on her personal observations and make connections for the jury based on that specialized knowledge. 11 Id. at 369 (citation omitted). 12 {20} The court distinguished the testimony in the following way. The detective’s 13 testimony about the specific functions of the dye packs—that is, the manufacturer, the 14 workings of the timer, the purpose to create more witnesses, the temperature at which 15 the pack burned—was “based on technical, specialized knowledge obtained in the 16 course of his position, and was not based on personal observations accessible to 17 ordinary persons.” Id. In contrast, the detective’s testimony about the aftermath of a 18 dye pack exploding near a person’s skin was simply a recollection of the detective’s 19 own sensory observations, which was proper lay testimony. Id. at 370. To emphasize 20 the contrast, the court explained the manner in which the burn testimony would have 21 crossed the line from lay to expert opinion, stating that 12 1 2 3 4 5 6 7 8 [t]he government could have ventured into the territory of expert testimony here if it had gone one step further and solicited an opinion as to the nature of Brown’s scars on his leg. If the government had show[n] the picture of the leg and asked [the witness] if based on his observations of past dye pack incidents, those scars were of the type that would be caused by a dye pack exploding, then that would have been the type of testimony dependent on specialized knowledge and experience that falls within expert testimony. 9 Id. Application of Jones’s distinction to Detective Smith’s testimony indicates that 10 Detective Smith’s testimony crossed the line between lay and expert opinion 11 testimony. 12 {21} Detective Smith’s testimony consisted of various details about stun guns and 13 his opinion as to the cause of D.L.’s bodily injuries. The following exchanges took 14 place on direct examination: 15 16 17 D.A.: [W]ere you able to determine or figure out what type of device these kids were talking about? You said they called it a taser. 18 19 20 Detective Smith: They called it a taser throughout everything up to that point. What it looks like is it’s an electronic stun gun. 21 .... 22 23 D.A.: 24 25 26 27 Detective Smith: As part of my career I worked in the Santa Fe Police Department. I was assigned to the administrative division, and we did actually do some research on stun guns themselves to determine whether or not How do you know so much about stun guns and tasers? 13 1 2 we wanted to utilize them as an alternate means of control. 3 4 D.A.: You’ve actually looked into these as part of your job? 5 Detective Smith: To some extent, yes ma’am. 6 7 D.A.: OK, and the stun gun, versus the taser, again, describe what a stun gun looks like. 8 9 10 Detective Smith: The stun gun is a contact weapon. In other words, you have to have it in your hand and actually make contact with the individual to utilize it. 11 .... 12 13 14 D.A.: 15 16 17 18 19 20 Detective Smith: Yes, the way it worked is that the nodules themselves, or the prongs, are live when the button is pressed and you can hold it up and discharge it and there’s an electrical charge that will go back and forth between the prongs, but if you touch someone with it, one or both prongs can deliver the shock. 21 .... 22 23 D.A.: 24 25 26 Detective Smith: The marks that I’ve seen on [D.L.] are extremely similar to the ones I’ve seen on individuals that have suffered stun guns. 27 .... You heard [D.L.] describe if he moved one prong would hit him. Does that seem accurate to you in your training and experience? Have you ever seen what type of marks are left from a stun gun? 14 1 2 D.A.: So we’ve been talking about mosquito bites, does [the injury] look similar to a mosquito bite? 3 4 5 6 7 8 9 10 Detective Smith: I could see someone that wasn’t familiar with them would think so, but they really didn’t appear to be a mosquito bite because they didn’t have the raised irritation that you would see from a mosquito bite, and then the angry red ring around it that would show on a mosquito bite. There’s a round area that’s very round. Mosquito bites, they come in a variety of shapes and sizes.4 11 .... 12 13 14 D.A.: I want to talk specifically about the difference in what your experience is as a law enforcement [officer] in a stun gun injury. 15 16 17 18 19 20 21 Detective Smith: The stun gun injuries, they’re all consistently—when they hit in pairs, are the same distance apart. . . . The prongs of a stun gun are about . . . two-and-a-half inches apart. . . . And when they both hit they will make marks that are that distance apart. . . . But if you just hit a lone stud, or a lone prong at one point, it can leave a single mark on its own. 22 .... 23 24 25 D.A.: 26 27 Detective Smith: I counted up twenty-four pairs that appeared to be stun gun injuries. [B]ased on your experience in knowing what a stun gun does, how many pairs were you able to locate on his body? 4 28 Defendant’s objection to Detective Smith’s lack of qualification as an 29 expert was raised at this point in the testimony. 15 1 {22} As an initial matter, Detective Smith’s testimony indicates that his experience 2 with stun guns is based upon his law enforcement training and experience, rather than 3 from life experience outside the law enforcement context. Therefore, any commentary 4 by Detective Smith about the technical properties of stun guns, the nature of stun gun 5 injuries and the manner in which they heal, similarities and dissimilarities between 6 stun gun injuries and mosquito bites, and the distance between stun gun prongs, are 7 not “matters which are within the common knowledge and experience of an average 8 person.” Winters, 2015-NMCA-050, ¶ 11 (internal quotation marks and citation 9 omitted). Furthermore, Detective Smith’s testimony crossed the line drawn in Jones 10 in that he did not simply state that he had seen stun gun injuries, describe them, and 11 allow the jury to draw its own conclusion. Instead, Detective Smith several times 12 stated that the marks on D.L.’s body were the type that would be caused by a stun 13 gun. Thus, Detective Smith’s testimony was not simply commentary on observations 14 he witnessed during the investigation, but instead he applied his law enforcement 15 training and experience to “make connections for the jury” as to the cause of the 16 marks on D.L.’s body. Jones, 739 F.3d at 369. 17 {23} We do not dispute the State’s contention that Detective Smith’s testimony was 18 based upon his personal perceptions. However, we cannot agree that his 19 characterization of these marks as stun gun injuries is one that a “normal person 16 1 would form on the basis of observed facts,” State v. Luna, 1979-NMCA-048, ¶ 19, 2 92 N.M. 680, 594 P.2d 340, particularly when D.L. himself testified that many of the 3 marks on his body were mosquito bites. As such, Detective Smith’s testimony 4 constituted expert opinion testimony and should not have been admitted under Rule 5 11-701.5 6 Harmless Error 7 {24} The State alternatively argues that if Detective Smith’s testimony was 8 improper, its admission constitutes harmless error. Violations of the rules of evidence 9 by a district court are non-constitutional errors. State v. Marquez, 2009-NMSC-055, 10 ¶ 20, 147 N.M. 386, 223 P.3d 931, overruled on other grounds by Tollardo, 201211 NMSC-008. Non-constitutional errors are harmless unless there is a reasonable 12 probability that the error impacted the verdict. Tollardo, 2012-NMSC-008, ¶ 36. To 13 determine the likely effect of the error, courts must evaluate all of the circumstances. 14 Id. ¶ 43. These circumstances include other evidence of the defendant’s guilt, the 15 16 17 18 19 20 5 We observe an interaction that took place during cross-examination of D.L. During an exchange about the marks appearing on D.L.’s body, defense counsel asked D.L “[i]f there are two prongs on the taser you should have more than fortyeight marks on your body. Does that sound right?” to which the prosecution objected and asked whether the question “is [counsel’s] expert opinion.” In response to the objection, the court stated that the question was “too specific.” 17 1 importance of the erroneously admitted evidence to the prosecution’s case, and the 2 cumulative nature of the error. Id. 3 {25} Defendant was charged and convicted of twenty-four counts of child abuse. 4 Detective Smith testified that he observed twenty-four pairs of stun gun injuries on 5 D.L.’s body. This evidence was the most authoritative causal connection between 6 Defendant and the injuries observed on D.L.’s body. No other witness, including D.L. 7 himself, testified to that exact number of marks being caused by a stun gun.6 The 8 primary witnesses against Defendant were young children when the assaults occurred. 9 Their testimony contained numerous inconsistencies and was subject to change under 10 cross-examination. These inconsistencies dramatically increased the importance of 11 Detective Smith’s testimony to the State’s case. See id. Under the circumstances, a 12 reasonable probability exists that Detective Smith’s testimony impacted the jury’s 13 verdict by authoritatively declaring that (1) the cause of D.L.’s injuries was a stun 14 gun, and (2) the number of assaults was at least twenty-four. As such, the admission 15 of Detective Smith’s testimony did not constitute harmless error and requires reversal 16 of Defendant’s convictions on all counts. 6 17 D.L. testified on direct examination that most of the marks present on his 18 body during the police interview were the result of mosquito bites. 18 1 SUFFICIENCY OF THE EVIDENCE 2 {26} Defendant argues that there was not sufficient evidence to support his 3 convictions on twenty-four counts of child abuse by torture. We address this issue 4 independently from our analysis of the evidentiary issue to avoid double jeopardy 5 implications on retrial. See State v. Mascareñas, 2000-NMSC-017, ¶ 31, 129 N.M. 6 230, 4 P.3d 1221 (“By addressing [the defendant’s] claim of insufficient evidence and 7 determining that retrial is permissible, we ensure that no double jeopardy concerns 8 are implicated.”). 9 {27} Sufficient evidence exists to support a conviction when “substantial evidence 10 of either a direct or circumstantial nature exists to support a verdict of guilt beyond 11 a reasonable doubt with respect to every element essential to a conviction.” State v. 12 Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks 13 and citation omitted). “In reviewing the sufficiency of the evidence, we must view the 14 evidence in the light most favorable to the guilty verdict, indulging all reasonable 15 inferences and resolving all conflicts in the evidence in favor of the verdict.” State 16 v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. It is the 17 exclusive province of the jury to resolve inconsistencies or ambiguities in a witness’s 18 testimony, State v. Sena, 2008-NMSC-053, ¶ 11, 144 N.M. 821, 192 P.3d 1198, and 19 “New Mexico appellate courts will not invade the jury’s province as fact-finder by 19 1 second-guessing the jury’s decision concerning the credibility of witnesses, 2 reweighing the evidence, or substituting its judgment for that of the jury.” State v. 3 Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057 (alterations, internal 4 quotation marks, and citation omitted). Instead, we determine only whether “a rational 5 jury could have found beyond a reasonable doubt the essential facts required for a 6 conviction.” Duran, 2006-NMSC-035, ¶ 5 (internal quotation marks and citation 7 omitted). We measure the sufficiency of the evidence against the instructions given 8 to the jury. State v. Smith, 1986-NMCA-089, ¶ 7, 104 N.M. 729, 726 P.2d 883. 9 {28} Defendant argues at length that the State failed to present sufficient evidence 10 to prove beyond a reasonable doubt that (1) Defendant directly assaulted D.L. twenty11 four times, or (2) Defendant was culpable under the language of our accessory statute. 12 We address these arguments in turn. 13 Sufficiency of the Evidence to Convict Defendant as D.L.’s Principal Abuser 14 {29} Child abuse occurs when “a person knowingly, intentionally or negligently, and 15 without justifiable cause, caus[es] or permit[s] a child to be: (1) placed in a situation 16 that may endanger the child’s life or health; (2) tortured, cruelly confined or cruelly 17 punished; or (3) exposed to the inclemency of the weather.” Section 30-6-1(D). The 18 twenty-four count indictment against Defendant was consistent with the statutory 19 language. 20 1 {30} At trial, the district court gave a jury instruction requiring that, to convict 2 Defendant of child abuse by torture, the jury must find that Defendant (1) caused D.L. 3 to be tortured; (2) intentionally and without justification; (3) while D.L. was under 4 the age of eighteen; and (4) in the state of New Mexico between August 1, 2010 and 5 October 29, 2010. This instruction is consistent with the uniform jury instruction on 6 child abuse. See UJI 14-604 NMRA (1999) (withdrawn 2015). The language of the 7 jury instruction, which only included the word “caused,” implies that the Defendant 8 must be found to be the principal abuser to support a conviction under this 9 instruction. To affirm Defendant’s convictions as D.L.’s principal abuser, this Court 10 must conclude that any rational jury, based upon the evidence presented, could have 11 found Defendant guilty beyond a reasonable doubt. Duran, 2006-NMSC-035, ¶ 5. 12 {31} D.L. testified that Defendant stunned him more than twenty-four times. While 13 D.L.’s testimony was not unequivocal on this topic, it was presented to the jury for 14 consideration. The jury also saw pictures of D.L.’s injuries and heard corroborating 15 testimony from L.L. and Detective Smith. On this evidence, a rational jury could have 16 found Defendant guilty beyond a reasonable doubt as D.L.’s principal abuser on 17 twenty-four counts of child abuse by torture. 21 1 Sufficiency of the Evidence to Convict Defendant as an Accessory to Abuse 2 Committed by Another 3 {32} Additionally, the district court gave a jury instruction requiring that, to convict 4 Defendant as an accessory to child abuse by torture, the jury must find (1) Defendant 5 intended that the crime be committed; (2) the crime was committed; and (3) 6 Defendant helped, encouraged, or caused the crime to be committed. This instruction 7 is consistent with the uniform jury instruction on accessory liability. See UJI 14-2822 8 NMRA. 9 {33} Our accessory liability statute provides, in pertinent part, that “[a] person may 10 be charged with and convicted of the crime as an accessory if he procures, counsels, 11 aids or abets in its commission and although he did not directly commit the crime.” 12 NMSA 1978, § 30-1-13 (1972). Being an accessory is not a distinct offense, but it is 13 instead linked to the actions of the principal. State v. Carrasco, 1997-NMSC-047, ¶ 6, 14 124 N.M. 64, 946 P.2d 1075. A person charged as an accessory is equally as culpable 15 as the primary offender and is subject to the same punishment. Id. An accessory must 16 share the criminal intent of the principal, and this intent may be inferred “from 17 behavior which encourages the act or which informs the confederates that the person 18 approves of the crime after the crime has been committed.” Id. ¶ 7. Generally, mere 19 presence during the commission of the charged offense, even presence accompanied 20 by mental approbation, is insufficient to infer the criminal intent required by the 22 1 statute. Luna, 1979-NMCA-048, ¶ 11. However, this generality does not apply in the 2 same manner to those “entrusted with the care and safekeeping of a child[.]” State v. 3 Orosco, 1991-NMCA-084, ¶ 25, 113 N.M. 789, 833 P.2d 1155, aff’d, 1992-NMSC4 006, 113 N.M. 780, 833 P.2d 1146. 5 {34} In Orosco, the defendant lived with his girlfriend and her six-year-old son, the 6 victim. Id. ¶ 2. While providing child care, the defendant and a friend took the victim 7 to a bar where the friend sexually assaulted the victim. Id. After the assault, the victim 8 consistently stated that he was forced to perform sexual acts on the friend, but he gave 9 inconsistent statements about the defendant’s role in the assault. Id. In one statement, 10 the victim alleged that the friend assaulted him in the bar bathroom and that the 11 defendant laughed at him when the assault was over. Id. ¶ 4. In later statements, the 12 victim alleged that both the defendant and the friend were in the bathroom and that 13 the defendant held his head while the friend attempted to have oral sex with him. Id. 14 ¶¶ 5-6. The defendant was charged with criminal sexual contact with a minor as an 15 accessory. See id. ¶ 1. At trial, both the state and the defendant took the position that, 16 in order to convict, the jury must find that the defendant took an active role in the 17 assault. See id. ¶ 22 (“Thus, both the state and [the] defendant seem to concede that 18 [the] defendant’s mere presence during the molestations would not suffice to convict 19 him as an accessory, even though [the] defendant had charge of the care of the minor 23 1 and took no steps to protect him.”). While expressly upholding the defendant’s 2 convictions based upon testimony indicating approval or encouragement in the 3 assault, this Court, sua sponte, held that a parent, or a person “charged with the care 4 and welfare of [a] child,” is culpable as an accessory for the failure, when present, to 5 take reasonable steps to protect a child from an assault by another. Id. ¶¶ 20, 26-27. 6 {35} Based on Orosco, as D.L.’s foster parent, Defendant had an affirmative duty 7 to protect D.L. from assaults occurring during Defendant’s presence. He thus was 8 subject to conviction under our accessory liability statute on this basis. 9 {36} At trial, D.L. testified that (1) Defendant purchased the stun gun and gave it to 10 his son Mikey; (2) he was stunned by Mikey approximately fifteen times; (3) he was 11 stunned by Brandon approximately three times; and (4) Defendant was present during 12 assaults by Mikey and Defendant would laugh in response. L.L. testified that she saw 13 D.L. get stunned by various individuals between ten and fifteen times. On this 14 evidence, a rational jury could have found Defendant guilty beyond a reasonable 15 doubt as an accessory to child abuse inflicted by another, even though the maximum 16 number of convictions supported by the evidence is eighteen. 17 {37} When, as in this case, a district court uses general rather than specific verdict 18 forms, the appellate courts are often unable to determine the jury’s rationale for 19 conviction. In this case, the jury might have found that Defendant was guilty of all 24 1 twenty-four counts of child abuse as the principal abuser. The jury also might have 2 found that Defendant was guilty in part as the principal abuser and in part as an 3 accessory. Regardless of the basis for the jury’s conclusion, the evidence was 4 sufficient because the convictions can be sustained under just one of the 5 theories—that is, that Defendant was guilty beyond a reasonable doubt as the 6 principal abuser on all twenty-four counts. 7 DUE PROCESS AND DOUBLE JEOPARDY 8 {38} Defendant’s final argument relates to the charging scheme employed by the 9 State at trial. Defendant argues that the State’s indictment violated his right to due 10 process inasmuch as he was denied notice of the particular charges against him and 11 potentially subjected him to double jeopardy under a course of conduct theory of 12 prosecution. “We review questions of constitutional law and constitutional rights, 13 such as due process protections, de novo.” N.M. Bd. of Veterinary Med. v. Riegger, 14 2007-NMSC-044, ¶ 27, 142 N.M. 248, 164 P.3d 947. 15 {39} The United States Constitution provides procedural due process protections to 16 criminal defendants, including the right to have “reasonable notice of charges against 17 [them] and a fair opportunity to defend[.]” State v. Baldonado, 1998-NMCA-040, 18 ¶ 21, 124 N.M. 745, 995 P.2d 214. “Procedural due process also requires that criminal 19 charges provide criminal defendants with the ability to protect themselves from 25 1 double jeopardy.” State v. Dominguez, 2008-NMCA-029, ¶ 5, 143 N.M. 549, 178 2 P.3d 834 (internal quotation marks and citation omitted). The right to these 3 protections is regularly asserted in cases in which, as here, the allegations of child 4 victims lack specificity as to the date, location, or details of an incident. See generally 5 id.; Baldonado, 1998-NMCA-040; State v. Tafoya, 2010-NMCA-010, 147 N.M. 602, 6 227 P.3d 92. 7 {40} The rights of defendants are balanced against the state’s compelling interest in 8 protecting child victims of abuse and prosecuting perpetrators of violence against 9 children. See Baldonado, 1998-NMCA-040, ¶ 20 (“[T]here exists a profound tension 10 between the defendant’s constitutional rights to notice of the charges against him and 11 to present a defense, and the state’s interest in protecting those victims who need the 12 most protection.” (internal quotation marks and citation omitted)). Given this 13 compelling interest, our courts recognize the limitations of child victims and are “less 14 vigorous in requiring specificity as to time and place when young children are 15 involved than would usually be the case where an adult is involved.” Id. ¶ 21 (internal 16 quotation marks and citation omitted). 17 {41} Application of our relevant case law to the facts of this case demonstrates that 18 Defendant’s argument must prevail. Defendant was charged with twenty-four counts 19 of child abuse by torture; a number that appears to be derived by combining Detective 26 1 Smith’s claim that twenty-four matched injuries were located on D.L.’s body, and 2 D.L.’s testimony that he stopped counting how many times he was stunned at twenty3 four. The criminal indictment does not differentiate between any of the incidents, but 4 instead it presents twenty-four identical counts. Each count states: 5 6 7 8 9 10 11 Child Abuse, in that on or between June 01, 2010, and October 29, 2010, in Curry County, New Mexico, the above-named defendant did intentionally and without justification, cause or permit D.L., a child under the age of eighteen years, to be placed in a situation that may endanger his life or health, OR tortured, cruelly confined or cruelly punished D.L., contrary to NMSA 1978, Section 30-6-1(D), a third degree felony. 12 The charging period was later amended to August 1, 2010 to October 29, 2010. 13 {42} As a threshold matter, this case does not present a question of the permissibility 14 of the charging period. It is undisputed that any stunning that did occur happened 15 between the date the stun gun arrived in the mail, sometime in early August 2010, and 16 October 29, 2010, when D.L. and L.L. were removed from the house. As a result, this 17 case does not require application of the Baldonado test for permissibility of the 18 charging period. See id. ¶ 27 (outlining test for a permissible charging period when 19 the allegations of a child victim lack specificity with respect to timing of the 20 assault(s)). While this Court recognizes the merits of the public policy rationale 21 outlined in Baldonado, a determination as to the presence of a due process violation 27 1 in the present case does not turn on questions related to “whether an indictment is 2 reasonably particular with respect to the time of the offense.” Id. ¶ 26. 3 {43} Instead, our inquiry relates to the lack of specificity of the incidents alleged 4 against Defendant, making Dominguez the controlling precedent. 2008-NMCA-029. 5 In Dominguez, the defendant was charged with ten counts of criminal sexual contact 6 of a minor under the age of thirteen over a period of approximately ten weeks. Id. ¶ 2. 7 All ten counts of the indictment were identical and “[n]othing in the indictment 8 provided any information that would distinguish one count from any other count.” Id. 9 After the state filed a bill of particulars, the district court concluded that “the [s]tate 10 had provided [the d]efendant with notice of the facts and circumstances as to five 11 alleged incidents,” and it dismissed the five remaining undifferentiated counts. Id. 12 ¶ 4. On appeal, this Court reviewed the dismissal of the five undifferentiated counts 13 and held that the dismissal was appropriate for the “five counts that could not be 14 linked to a particular incident of abuse.” Id. ¶ 10. We noted: 15 16 17 18 19 [a]lthough we have allowed some leeway in the charging period where child victims are unable to recall dates with specificity, we have never held that the [s]tate may move forward with a prosecution of supposedly distinct offenses based on no distinguishing facts or circumstances at all, simply because the victim is a child. 20 Id. Additionally, we stated that our holding was necessitated by the “very real 21 possibility that the defendant would be subject to double jeopardy in his initial trial 28 1 by being punished multiple times for what may have been the same offense.” Id. ¶ 9 2 (alterations, internal quotation marks, and citation omitted). 3 {44} We followed the Dominguez rationale in Tafoya, 2010-NMCA-010, ¶¶ 22, 24. 4 In Tafoya, the defendant was charged with four counts of criminal sexual penetration 5 of a minor under the age of thirteen, among other charges. Id. ¶ 1. Two of the counts 6 were for vaginal penetration and two of the counts were for anal penetration. Id. ¶ 2. 7 The defendant was convicted of the four charges. Id. ¶ 6. On appeal, the defendant 8 argued that a lack of factual specificity in the indictment and the evidence at trial 9 required reversal. Id. ¶ 20. Relying on Dominguez, we held that a lack of 10 differentiation with respect to the counts of vaginal and anal penetration necessitated 11 reversal of one count of each. Tafoya, 2010-NMCA-010, ¶¶ 22, 24. 12 {45} The State charged Defendant with twenty-four individual counts of child abuse 13 based upon D.L.’s allegations that Defendant and his sons assaulted him with a stun 14 gun numerous times between August and October 2010. The indictment did not 15 provide notice as to any specific instance in which Defendant was alleged to be the 16 principal abuser. Nor did it provide notice as to any specific instance in which 17 Defendant was alleged to be an accomplice to abuse inflicted by others. We view this 18 case as directly analogous to Dominguez, in that the indictment and trial placed 19 Defendant in a situation in which it was “impossible for the jury to conclude that [he] 29 1 was guilty of some of the offenses, but not others” and “[t]he jury could have found 2 him not guilty of some of the counts only if they reached the conclusion that the child 3 victim had overestimated the number of abusive acts.” 2008-NMCA-029, ¶ 8 (internal 4 quotation marks and citation omitted). 5 {46} Because Defendant’s due process rights were violated by the district court 6 proceedings, and retrial is not barred, we must craft an appropriate remedy. State v. 7 Slade, 2014-NMCA-088, ¶ 40, 331 P.3d 930 (“Where a defendant successfully 8 challenges his or her conviction on some basis other than insufficiency of the 9 evidence, double jeopardy does not apply.” (internal quotation marks and citation 10 omitted)). 11 {47} In similar circumstances, our double jeopardy jurisprudence allows for the state 12 to proceed with a single count of child abuse by torture under a course of conduct 13 theory. See Dominguez, 2008-NMCA-029, ¶ 10 (“[I]f the [s]tate can only support its 14 indictment with a child’s statements regarding a defendant’s course of conduct and 15 does not have enough specific information to charge distinct incidents of abuse, the 16 [s]tate is still able to go forward with the prosecution since this Court has held that 17 evidence of a course of conduct will support a single count of abuse.”); State v. 18 Altgilbers, 1989-NMCA-106, ¶¶ 38-39, 109 N.M. 453, 786 P.2d 680 (explaining that 19 the state may charge a single count for multiple acts under a course of conduct 30 1 theory). That said, the State is not required to employ a course of conduct theory on 2 retrial. If the State elects to retry Defendant on multiple counts of child abuse by 3 torture, it shall file a bill of particulars supporting its indictment. The district court 4 may then conduct a hearing to determine whether each count charged meets the due 5 process requirements under Dominguez. If the result of that hearing is a ruling that 6 certain counts must be dismissed, Defendant’s new trial shall be on the remaining 7 counts only. 8 CONCLUSION 9 {48} For the foregoing reasons, we reverse Defendant’s convictions on all counts 10 and remand to the district court for retrial consistent with procedures outlined in this 11 opinion. 12 {49} IT IS SO ORDERED. 13 14 ________________________________ JAMES J. WECHSLER, Judge 15 WE CONCUR: 16 ________________________________ 17 MICHAEL E. VIGIL, Chief Judge 18 ________________________________ 19 MICHAEL D. BUSTAMANTE, Judge 31
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
