State v. Consaul

CourtSupreme Court of New Mexico
Citation332 P.3d 850
Decision Date25 August 2014
Docket NumberNo. 33,483.,33,483.
PartiesSTATE of New Mexico, Plaintiff–Respondent, v. Daniel CONSAUL, Defendant–Petitioner.

332 P.3d 850

STATE of New Mexico, Plaintiff–Respondent,
v.
Daniel CONSAUL, Defendant–Petitioner.

No. 33,483.

Supreme Court of New Mexico.

Aug. 21, 2014.
Mandate Granted Aug. 25, 2014.


[332 P.3d 851]


Jorge A. Alvarado, Chief Public Defender, Allison H. Jaramillo, Assistant Appellate Defender, Santa Fe, NM, for Petitioner.

Gary K. King, Attorney General, Ralph E. Trujillo, Assistant Attorney General, Santa Fe, NM, for Respondent.

[332 P.3d 852]


OPINION

BOSSON, Justice.

{1} This criminal prosecution under NMSA 1978, Section 30–6–1 (2005) alleged intentional and negligent child abuse causing great bodily harm to an infant. A jury returned a guilty verdict, which our Court of Appeals affirmed in a memorandum opinion. State v. Consaul, No. 29,559, mem. op. at 2, 2012 WL 868811 (N.M.Ct.App. Feb. 20, 2012) (non-precedential).

{2} In our certiorari review of that conviction, we hold first that under the particular circumstances of this case, the district court erred when it rejected defense counsel's request for separate jury instructions for intentional and negligent child abuse. Second, we hold that the evidence offered to support the charge of criminally negligent child abuse resulting in great bodily harm (which we hereafter describe as acts in reckless disregard) failed, according to the State's own witnesses, to prove that Defendant's actions caused the infant's injuries. Third, we hold that the evidence of intentional child abuse resulting in great bodily harm—in this case, an allegation that the accused intentionally suffocated the infant—failed to prove that charge beyond a reasonable doubt.

{3} Accordingly, we reverse the district court and order the charges dismissed with prejudice for lack of sufficient evidence. In the course of our opinion we revisit and modify portions of our jurisprudence regarding the crime of child abuse under Section 30–6–1.

BACKGROUND

{4} Defendant Daniel Consaul was convicted of child abuse resulting in great bodily harm after his nephew, Jack Consaul, suffered a devastating neurological injury when he was ten weeks old.

{5} During the early morning hours of October 10, 2005, Daniel was responsible for watching Jack while Jack's mother, Heidi Consaul, worked a night shift at a local motel. Daniel helped his sister with caretaking duties for Jack and had been doing so since Jack was born. Daniel was also a student at Doña Ana Branch Community College studying fire science.

{6} Daniel began watching Jack during the evening hours of October 9, 2005, after Jack's grandparents dropped him off at the apartment that Daniel and Heidi shared. During this time and into the morning hours of October 10, 2005, Jack became ill. Daniel was the only person with Jack when this occurred, and we derive an account of the events that evening from two statements Daniel gave to law enforcement officers during the subsequent child abuse investigation.

{7} Daniel recounted that on the evening of October 9, 2005, he had been at the New Mexico State University campus visiting friends. He headed home when he learned that he needed to watch Jack because Heidi was going to work early that evening. In his first interview, Daniel stated that he laid Jack down to sleep about 11:30 p.m. In Daniel's second interview, he informed law enforcement officers that he put Jack “in his crib face down because [Jack] was aggravating me with his crying....” Daniel stated that he bundled Jack in a blanket “a little tighter ... than I normally did,” and responded affirmatively when asked if he did this because he was frustrated and wanted Jack to fall asleep so he could complete the tasks his sister had given him. When asked by a law enforcement officer to describe how he bundled Jack and put him to sleep that evening, Daniel responded that he put Jack face down in the crib on a pillow.

{8} Around 1:30 a.m., Jack screamed. Daniel discovered that Jack had thrown up and appeared rigid, so he called Heidi and their neighbor. When Heidi arrived home, she, Daniel and the neighbor rushed Jack to the emergency room at Memorial Medical Center in Las Cruces, where Dr. Martin Boyd, an emergency medicine doctor, examined him. Dr. Boyd testified that Jack arrived shivering and lethargic, but he was “appropriately responsive.” Dr. Boyd ordered lab tests and began administering intravenous (IV) fluids. Dr. Boyd thought something was really wrong with Jack, so he contacted Dr. Hernan Ciudad, the pediatrician on call, for a consult.

{9} Dr. Ciudad arrived at the hospital around 4:30 a.m. He could not pinpoint exactly

[332 P.3d 853]

what was wrong with Jack, but believed that Jack could be in septic shock. Dr. Ciudad continued to give Jack IV fluids, reviewed his lab results, and administered a spinal tap. Unsure of what was wrong with Jack, Dr. Ciudad called for help, contacting Dr. Dawn Joseph, a critical care specialist at University of New Mexico Hospital (UNMH) in Albuquerque. Both doctors agreed that Jack should be airlifted to UNMH.

{10} When Jack arrived at UNMH, Dr. Joseph examined him. She believed that Jack was in septic shock or suffering from an infection, like meningitis. Dr. Joseph ordered that antibiotics be administered to treat any potential bacterial infection and fluids to treat the shock. During his second day at UNMH, Jack had a seizure. Antiseizure medication did not help control Jack's seizure activity. According to her testimony, at that point Dr. Joseph was very worried that something else was going on with Jack. Following the seizure, Dr. Joseph ordered a CT scan and an MRI. Upon receiving the results, Dr. Joseph realized that Jack had a severe neurological injury, specifically a hypoxic ischemic injury to his brain1, which is a lack of oxygen and blood to the brain, and cerebral edema, which is a swelling in the brain. Dr. Joseph called Dr. Mary Johnson, a pediatric neurologist at UNMH, for a consult.

{11} Almost immediately, Dr. Johnson became concerned that Jack's brain injuries were “non accidental,” specifically, the result of suffocation. In other words, Dr. Johnson suspected child abuse. Once she suspected child abuse, Dr. Johnson “felt that the most likely mechanism, if we talk about mechanisms of brain injury in small children in child abuse, the most likely mechanism was that of suffocation.” Dr. Joseph agreed with Dr. Johnson, stating that suffocation “could be the one diagnosis or the one thing that happened to Jack that could explain everything.”

{12} Believing that Jack was a victim of child abuse in the form of “non accidental” suffocation, UNMH staff alerted the New Mexico Children, Youth and Families Department (CYFD), which then notified law enforcement authorities. With a child abuse investigation underway, Detective Mark Myers of the Las Cruces Police Department interviewed Daniel twice, on October 13 and 14, 2005. Based on the October 14 interview and the doctors' suspicions that Jack was a victim of child abuse, a district judge issued an arrest warrant for Daniel on October 25, 2005.

{13} On October 27, 2005, a grand jury indicted Daniel on charges of negligently caused child abuse resulting in great bodily harm, and in the alternative, intentional child abuse resulting in death or great bodily harm pursuant to Sections 30–6–1(D) and (E).

{14} Importantly, the theory stated in the indictment for both negligent and intentional child abuse was that Daniel had placed Jack in a situation that endangered Jack's life or health “by swaddling Jack ... tightly and leaving him unattended for an extended period of time....” Absent from the indictment was any mention of Dr. Johnson's theory that Daniel had non-accidentally suffocated Jack. At the beginning of Daniel's trial in March 2008, the State's sole theory of the case, consistent with the indictment, was that Daniel had swaddled Jack tightly and left him unattended for a period of time. During trial, however, the State introduced an alternative theory: that Daniel had intentionally suffocated Jack by holding his face down in a pillow or by placing his hand over Jack's mouth, either continuously or in several episodes over a period of time.

{15} The defense countered the State's argument by suggesting that Jack's injuries occurred because the doctors at UNMH had administered an excessive amount of fluid in treating Jack's shock. The defense presented one expert to support its theory that the treatment Jack received at UNMH caused his injuries. The defense also suggested that the doctors' testimony that Jack suffered intentional suffocation was self-serving in that their motive to suggest child abuse was to

[332 P.3d 854]

avoid being held accountable for Jack's injuries.

{16} At the close of trial, defense counsel requested separate jury instructions for negligent and intentional child abuse. The district court declined and gave the jury one uniform jury instruction for both intentional and negligently caused child abuse. SeeUJI 14–602 NMRA (uniform jury instruction delineating the essential elements of intentional or negligently caused child abuse resulting in great bodily harm). In addition, defense counsel requested separate verdict forms for intentional and negligent child abuse, which the district court also declined.

{17} In a general verdict, the jury found Daniel guilty of child abuse resulting in death or great bodily harm. The district court sentenced Daniel to the basic term of 18 years imprisonment. Based on the nature of the crime and the resulting harm, the district court determined that this was a serious violent offense pursuant to NMSA 1978, Section 33–2–34 (2006) which specifies which crimes are serious violent offenses and what amount of prison time is eligible for meritorious deductions.

{18} Daniel raises a number of issues on certiorari, two of which we review in this opinion. We determine first whether the district court erred by denying Daniel's request for separate jury instructions regarding negligent and intentional child...

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