Santillanes v. State
| Decision Date | 01 March 1993 |
| Docket Number | No. 20638,20638 |
| Citation | 849 P.2d 358,115 N.M. 215,1993 NMSC 12 |
| Parties | Vincent SANTILLANES, Petitioner, v. STATE of New Mexico, Respondent. |
| Court | New Mexico Supreme Court |
We granted the defendant Vincent Santillanes' writ of certiorari to review the Court of Appeals decision affirming his conviction of child abuse under NMSA 1978, Section 30-6-1(C) (Repl.Pamp.1984). Santillanes' primary argument is that the provision in the statute under which he was convicted is unconstitutional because it improperly criminalizes ordinary civil negligence. He raises due process and fundamental fairness issues as well as equal protection and cruel and unusual punishment arguments. Santillanes also contests his conviction on the grounds of insufficiency of evidence, improper venue, prosecution under the wrong statute, and prosecutorial misconduct. Finding that all of his assigned errors are without merit except for his argument regarding the proper interpretation of the statute under which he was convicted, we address only that issue.
Santillanes cut his 7-year-old nephew's neck with a knife during an altercation. The jury convicted him of child abuse involving no death or great bodily injury under Section 30-6-1(C) on February 1, 1991.1 Section 30-6-1(C) reads as follows:
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;
(2) tortured, cruelly confined or cruelly punished; or
(3) exposed to the inclemency of the weather.
NMSA 1978, Sec. 30-6-1(C) (Cum.Supp.1992) (emphasis added).
After the close of all evidence, defense counsel submitted a requested jury instruction to the court setting forth a criminal negligence standard rather than a civil negligence standard to define the negligence element under the statute. Defendant's Requested Instruction No. 3 stated:
An act, to be "negligence" or to be done "negligently," must be one which a reasonably prudent person would foresee as creating a substantial and unjustifiable risk of injury to Paul Santillanes. The risk created must be of such a nature and degree that the reasonably prudent person's failure to perceive it involves a gross deviation from the standard of care that a reasonably prudent person would observe in the same situation.
The requested instruction was patterned after the definition of criminal negligence in Model Penal Code Section 2.02(2)(d) (1985). The trial court refused Santillanes' instruction and instead instructed the jury on a civil negligence standard. That instruction, Instruction No. 7, read:
The term "negligence" may relate either to an act or a failure to act.
An act, to be "negligence," must be one which a reasonably prudent person would foresee as involving an unreasonable risk of injury to himself or to another and which such a person, in the exercise of ordinary care, would not do.
A failure to act, to be "negligence," must be a failure to do an act which one is under a duty to do and which a reasonably prudent person, in the exercise of ordinary care, would do in order to prevent injury to himself or to another.
The trial court apparently did not instruct the jury on the definition of "intentionally."
On appeal to the Court of Appeals, Santillanes claimed that the trial court erred in refusing his requested instruction that delineated a criminal negligence standard. He claimed that the term "negligently" in Section 30-6-1(C) either should be read to mean criminal negligence or that it should be deemed unconstitutionally vague or overbroad in violation of due process of law. While it was not clear whether the jury convicted Santillanes of intentional or negligent child abuse, he argued that the court instructed the jury on both theories and that the jury could have convicted him on either theory. Because the trial court instructed the jury on the wrong standard of negligence, Santillanes argued, his conviction by general verdict must be overturned.
The Court of Appeals, however, held that Santillanes did not preserve for appeal the issue regarding the contested instruction because he failed to tender a proper instruction on the criminal negligence standard. The Court stated that the instruction which Santillanes requested was confusing because it did not permit the jury to evaluate the defendant's conduct by any meaningful standard. The Court also stated that his requested instruction incorrectly defined criminal negligence. Concluding that he failed to preserve this issue for appeal, the Court of Appeals held that Santillanes had no standing to complain of any violation of the due process clause.
Nevertheless, the Court of Appeals analyzed the record for fundamental error. The Court reasoned that because the evidence unmistakably established criminal negligence anyway, no justiciable issue existed in this case regarding any distinction between civil and criminal negligence in the statute.
In this Court, Santillanes maintains that felony punishment should attach only to criminal behavior, in this case criminal negligence, not to ordinary civil negligence. Santillanes asserts that according felony status to acts of civil negligence violates substantive due process because the civil negligence standard is not tailored to meet the statutory goal of protecting children from abuse. Finally, Santillanes claims that as the Court of Appeals interpreted the statute, the civil negligence standard overreaches its mark and incorporates conduct that is not criminal, but rather simply negligent. Thus, he claims that the term "negligently," as interpreted, is overbroad in violation of due process of law.
The State counters that the statute, as applied, only pertains to child abuse that goes beyond merely normal action or inaction. See State v. Coe, 92 N.M. 320, 321, 587 P.2d 973, 974 (Ct.App.), cert. denied, 92 N.M. 353, 588 P.2d 554 (1978). According to the State, the Court in Coe limited the scope of the ordinary negligence standard because it interpreted the term "abuse" to require a showing of something more than just simple negligence or inadvertence even if it fell short of requiring a showing of criminal negligence. Thus, the State argues that the term "negligently," as interpreted in Coe and as applied in numerous other cases, is not constitutionally overbroad or vague. In addition, the State emphasizes that our courts have long interpreted the statute as requiring only a civil negligence standard and that there is no reason to change it now.
First, we must address the issue of whether Santillanes preserved the assigned error for appeal. The relevant rule states:
for the preservation of error in the charge, objection to any instruction given must be sufficient to alert the mind of the court to the claimed vice therein, or, in case of failure to instruct on any issue, a correct written instruction must be tendered before the jury is instructed.
SCRA 1986, 5-608(D) (Repl.Pamp.1992). The Court of Appeals did not find that Santillanes failed to make a proper objection to the negligence instruction that the trial court gave to the jury. Rather, the Court ruled that Santillanes had no standing to raise his constitutional attack because he failed to preserve the issue when he submitted an incorrect instruction on criminal negligence. The Court of Appeals erred in its interpretation of Rule 5-608. See Gallegos v. State, 113 N.M. 339, 341, 825 P.2d 1249, 1251 (1992).
Under Rule 5-608, counsel must submit a proper instruction to preserve error only if no instruction is given on the issue in question on appeal. Here, the trial court gave an instruction on the issue in question on appeal, albeit a civil negligence instruction, and it is that issue which forms the basis of Santillanes' constitutional attack. Moreover, because there is no uniform jury instruction on criminal negligence in New Mexico, defense counsel relied on the Model Penal Code. While his proffered instruction was not a precise restatement of the Model Penal Code's definition of criminal negligence, defense counsel captured the essence of that definition and thus informed the trial judge of the claimed vice in the charge given to the jury. See id. We hold that Santillanes preserved his issue for appeal.
At common law, the conviction of a crime required satisfaction of the element of intent. See Perez v. State, 111 N.M. 160, 161, 803 P.2d 249, 250 (1990). The legislature, however, may define certain conduct as criminal without the element of intent. State v. Barber, 91 N.M. 764, 766, 581 P.2d 27, 28 (Ct.App.1978). When a criminal statute is silent about whether a mens rea element is required, we do not assume that the legislature intended to enact a no-fault or strict liability crime. Instead, it is well settled that we presume criminal intent as an essential element of the crime unless it is clear from the statute that the legislature intended to omit the mens rea element. See Reese v. State, 106 N.M. 498, 501, 745 P.2d 1146, 1149 (1987) (Ransom, J., specially concurring). This determination is one of statutory construction in light of what the common law required. Id.
It is also well settled that the legislature has the authority to make negligent conduct a crime. See State v. Lucero, 87 N.M. 242, 245, 531 P.2d 1215, 1218 (Ct.App.), cert. denied, 87 N.M. 239, 531 P.2d 1212 (1975). The issue in this case, then, is not whether we must read the mens rea element into a criminal statute because the child abuse statute contains a mens rea element. Rather, the question is when ...
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