State v. Lujan

Decision Date03 December 1985
Docket NumberNo. 8161,8161
Citation103 N.M. 667,1985 NMCA 111,712 P.2d 13
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Richard Samuel LUJAN, Defendant-Appellant.
CourtCourt of Appeals of New Mexico
OPINION

GARCIA, Judge.

Defendant appeals his conviction for aggravated assault and child abuse. Five appellate issues have been briefed and are submitted to the court for resolution. The issues are:

1) whether sufficient evidence supports the conviction,

2) whether defendant's actions come within the child abuse statute, NMSA 1978, Section 30-6-1(C) (Repl.Pamp.1984) 3) whether the indictment should have been dismissed on the grounds of double jeopardy,

4) whether the indictment should have been dismissed on the grounds of prosecutorial vindictiveness,

5) whether the trial court erred in allowing impeachment by extrinsic evidence.

We affirm defendant's conviction.

SUBSTANTIAL EVIDENCE

We utilize the substantial evidence test to determine whether the evidence supports the jury's verdict. The tenets of the rule are threefold: 1) that substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; 2) that on appeal, all disputed facts are resolved in favor of the successful party, with all reasonable inferences indulged in support of the verdict, and all evidence and inferences to the contrary discarded; and 3) that although contrary evidence is presented which may have supported a different verdict, the appellate court will not weigh the evidence or foreclose a finding of substantial evidence. State v. Martinez, 95 N.M. 445, 623 P.2d 565 (1981); McCauley v. Ray, 80 N.M. 171, 453 P.2d 192 (1968); Tapia v. Panhandle Steel Erectors Company, 78 N.M. 86, 428 P.2d 625 (1967). In accord with the substantial evidence test, we view the facts most favorable to the state.

FACTS

Don Romero and his spouse, Patricia, were leaving a Walgreen's store located in Albuquerque. Patricia was carrying their seven-month-old baby in her arms. Defendant and four others were in a car parked next to the Romero's vehicle. As the Romeros approached their pickup, defendant and the other occupants of the car began whistling at Patricia and making lewd remarks. The verbal harassment of the Romeros escalated to racial epithets and curses. When the Romeros reached their pickup and got in, defendant pulled his vehicle alongside the truck's passenger side and directed additional profanities at Patricia. The Romeros quickly drove away from the parking lot onto Central Avenue. Defendant pursued the Romero's truck. When defendant overtook the truck, he repeatedly honked his horn, cursed at the truck's occupants, and yelled at Mr. Romero to pull over. Mr. Romero accelerated in an attempt to evade his pursuers. Defendant swerved his vehicle towards the truck and the occupants of defendant's vehicle began to throw beer bottles and cans at the pickup. One beer can entered through Mr. Romero's open window, cracked the inside of his windshield, ricocheted, and struck the infant on his forehead. Defendant then began to ram the Romero pickup with his car until the bumpers of both vehicles locked, forcing them to stop.

Several of the occupants of defendant's vehicle jumped out and attacked Mr. Romero. One of the occupants struck Romero on his face with a tire tester, a device described as an 18-inch piece of wood with a 3-inch galvanized pipe attached to one end. The blow broke Mr. Romero's jaw and shattered several of his teeth. Patricia Romero got down from the vehicle and pleaded with the assailants to leave her husband alone. One of the men responded to her pleas by repeatedly striking her in the face.

Another occupant in defendant's vehicle grabbed a metal awning pole from the back of the pickup and began beating Mr. Romero with it. Romero fought off his assailants, ultimately disarming them. Some of the assailants fled, but Mr. Romero was able to hold the others at bay until the authorities arrived.

SUBSTANTIAL EVIDENCE

Following the proceedings in the metropolitan court, discussed infra, defendant was indicted on charges of aggravated assault, aggravated battery and child abuse. After a jury trial in district court, defendant was acquitted of battery, but convicted of aggravated assault and child abuse.

Defendant initially challenges his convictions on the basis of sufficiency of evidence and argues that he did not see the infant, did not know the infant was in the pickup, and no evidence has been presented showing that he threw the can of beer that struck the child. Secondly, defendant argues that no witness has identified him as an assailant and, at most, the evidence showed that he violated driving rules by engaging in a game of "chicken." This, he states, does not show any shared intent or the active encouragement or approval of the crime.

We reject defendant's arguments. Cf. State v. Luna, 92 N.M. 680, 594 P.2d 340 (Ct.App.1979). The appellate court does not weigh the evidence, but determines whether there is substantial evidence to support the jury's verdict. State v. Martinez. In this case, the evidence, and reasonable inferences which may be legitimately drawn from the evidence, would allow the jury to determine that defendant was aware of the child's presence, and had the shared intent to assault the occupants of the pickup. The Romeros testified that they entered the pickup, carrying the infant, while defendant and his companions were in front of the truck. The evidence demonstrates that defendant actively participated in the verbal and physical attacks on the Romero family. He engaged in the name-calling and threats, pursued the Romeros and drove in such a manner as to endanger the occupants of the pickup. He repeatedly rammed his vehicle into the Romero's truck, forcing it to stop. Whether defendant's conduct unwittingly provided an opportunity for the crime to occur, as defendant argues, or whether it helped, encouraged or caused the crime to be committed, was a jury question which has been resolved against him.

WHETHER DEFENDANT'S ACTION COME WITHIN THE CHILD ABUSE STATUTE

Section 30-6-1(C), prohibiting the intentional or negligent abuse of a child, provides that a "person" who causes or permits a child to be placed in a situation that may endanger a child's life or health, is liable for the crime of child abuse. Cf. Sec. 30-6-1(B).

In construing the statute, the court's overriding concern is to give effect to the intent of the legislature. First Nat. Bank v. Southwest Yacht & Marine Supply Corp., 101 N.M. 431, 684 P.2d 517 (1984). Legislative intent is to be determined primarily by the language of the statute, and words will be given their plain and ordinary meaning unless a different intent is clearly indicated. State v. Pedroncelli, 100 N.M. 678, 675 P.2d 127 (1984); Phoenix, Inc. v. Galio, 100 N.M. 752, 676 P.2d 829 (Ct.App.1984). When no contrary intent is indicated and the words are free from ambiguity, no other means of interpretation should be resorted to and there is no room for construction. Perea v. Baca, 94 N.M. 624, 614 P.2d 541 (1980); Arnold v. State, 94 N.M. 381, 610 P.2d 1210 (1980); State v. Elliott, 89 N.M. 756, 557 P.2d 1105 (1977),

The use of the word "person" in the statute must be presumed to carry its ordinary meaning. There is no ambiguity in the statute nor is there any reason to believe the legislature did not intend to proscribe the conduct in question when committed by any "person." There exists neither cause nor justification for this court to limit the legislative choice made by the appropriate law-making body.

Dicta in State v. Coe, 92 N.M. 320, 587 P.2d 973 (Ct.App.1978), may appear to offer a contradictory interpretation. In Coe, defendant maintained that NMSA 1953, Section 40A-6-1(C), which was repealed in 1973, but contained the exact language as Sec. 30-6-1(C), was unconstitutionally vague. In finding that "reasonable adults" would have no difficulty in ascertaining the proscribed conduct, the court stated:

Defendant's contention, that because of its negligence requirement the statute covers any and all harm that might befall a child, is without substance. * * *

The statute then does not apply to ordinary situations where a child is injured, but only to those where the parent performs or fails to perform some abusive act. (Emphasis added).

Id. at 321, 587 P.2d at 974.

Coe focused on the type of behavior prohibited by the child abuse statute, not the class of possible defendants. This interpretation is supported by the fact that in Coe, the defendant was not the parent of the child he murdered, but was merely living with the child's mother. Additionally, in ruling that the statute was constitutional, the court noted that the legislature "acted within its province to protect abused children." Id. at 322, 587 P.2d at 975. There is no reason to believe that the legislature intended that its protection be limited only to the children of abusive parents. See State v. Howell 93 N.M. 64, 596 P.2d 277 (Ct.App.1979) (Defendant was the husband of the child's babysitter and did not occupy a parental or guardianship role in relation to the child, but was prosecuted under the child abuse statute).

Section 30-6-1(C) forbids anyone from endangering the life or health of a child. The legislature's decision to criminalize the conduct described by the statute reflects a compelling public interest in protecting defenseless children. State v. Lucero, 87 N.M. 242, 531 P.2d 1215 (Ct.App.1975). The adoption of defendant's argument would interfere with the legislature's decision. There is no question that defendant's behavior endangered the child's life. We decline to hold defendant is not within the ambit of ...

To continue reading

Request your trial
43 cases
  • Santillanes v. State
    • United States
    • New Mexico Supreme Court
    • March 1, 1993
    ...interest in protecting defenseless children" and thus was a proper exercise of the legislature's police power. State v. Lujan, 103 N.M. 667, 671, 712 P.2d 13, 17 (Ct.App.1985), cert. denied, 103 N.M. 740, 713 P.2d 556 (1986). The State also points out that the statute has withstood many con......
  • Gutierrez v. Moriarty
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • January 7, 1991
    ...so doubtful as to shock the conscience); Clark, 772 P.2d at 331 (fundamental error if miscarriage of justice); State v. Lujan, 103 N.M. 667, 712 P.2d 13, 19 (Ct.App.1985) (fundamental error if denial of due process of law), cert. denied, 103 N.M. 740, 713 P.2d 556 (1986). Review of a defaul......
  • State v. Reed
    • United States
    • New Mexico Supreme Court
    • August 17, 2005
    ...any person who causes or permits a child to be placed in a situation that endangers the child's life. See State v. Lujan, 103 N.M. 667, 667, 669, 712 P.2d 13, 13, 15 (Ct.App.1985) (affirming conviction for child abuse after defendant chased a family in a pickup truck while his friends threw......
  • State v. Reyes
    • United States
    • New Mexico Supreme Court
    • July 24, 2002
    ...so as to establish a foundation for later showing, through other admissible evidence, that they were false."); State v. Lujan, 103 N.M. 667, 674, 712 P.2d 13, 20 (Ct.App.1985) (concluding that an attempt to deceive police shows a consciousness of 2. Statement of Defendant. {31} While the fo......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT