State v. Begay

• Decision Date: 16 January 2019
• Docket Number: A-1-CA-35964
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. RYAN BEGAY, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee, v. RYAN BEGAY, Defendant-Appellant.

A-1-CA-35964

COURT OF APPEALS OF THE STATE OF NEW MEXICO

January 16, 2019

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Stan Whitaker, District Judge

Hector H. Balderas, Attorney General

Anita Carlson, Assistant Attorney General

Santa Fe, NM

for Appellee

Caren I. Friedman

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

GALLEGOS, Judge Pro Tempore.

{1} Following a jury trial, Ryan Begay (Defendant) was convicted of one count of child abuse (recklessly caused, great bodily harm); two counts of child abuse (recklessly caused, no death or great bodily harm); one count of shooting at or from a motor vehicle (great bodily harm); one count of shooting at or from a motor vehicle (no injury); and one count of tampering with evidence. Defendant appeals his convictions, raising six issues: (1) sufficiency of the evidence to support the child abuse convictions, including whether the victim's injury amounted to great bodily harm; (2) denial of due process of law; (3) double jeopardy; (4) inconsistent verdicts; (5) error in striking a juror for cause; and (6) ineffective assistance of counsel.

{2} We conclude that Defendant's convictions for two counts of child abuse (recklessly caused, no death or great bodily harm) violate double jeopardy and we remand, directing the district court to vacate one of the two counts of child abuse (recklessly caused, no death or great bodily harm). Unpersuaded by the balance of Defendant's appellate arguments, we otherwise affirm.

BACKGROUND

{3} At approximately 11:00 a.m. on June 26, 2013, Defendant and his girlfriend, Sabra Montoya, along with Sabra's sister, Samantha, went to an apartment complex in Albuquerque to purchase heroin. Defendant apparently obtained some heroin and "shot up" in the apartment complex parking lot. Sabra's cousin, Trey Gomez, who lived in the complex, came outside and confronted Defendant in the parking lot. Following an intense argument with Trey, Defendant, Sabra, and Samantha began to drive away, with Sabra driving the vehicle, Defendant riding as the front passenger, and Samantha sitting in the back seat. They heard noises, which they purportedly believed to be shots fired at them—later determined to be rocks being thrown—coming from Trey's direction. Defendant then balanced himself out of the passenger window and fired several gunshots over the roof of the vehicle in Trey's direction. Several adults and three children (J.A., Ma.G. and Me.G.,) had been in the parking lot along with Trey during the confrontation, and one of the little girls, twenty-month-old J.A., was shot in her leg. Defendant, Sabra, and Samantha drove off, and Defendant later threw the gun in the Rio Grande River.

{4} Defendant was charged with—and tried for—fifteen different crimes, fourteen of which were related to the shooting, with the last charge being tampering with evidence. The jury was instructed on self-defense for all of the shooting related counts. Following his trial, Defendant was ultimately convicted for six of the charges. He now appeals. We consider his appellate issues in turn.

DISCUSSION

I. Sufficiency of the Evidence

A. Standard of Review

{5} The first issue on appeal is whether there was sufficient evidence to support Defendant's child abuse convictions, including whether J.A.'s injury amounted to great bodily harm. In assessing the sufficiency of the evidence, the reviewing court "view[s] the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict." State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. In criminal cases, "[t]he test for sufficiency of the evidence is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt with respect to every element essential to a conviction." State v. Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and citation omitted). We disregard all evidence and inferences that support a different result. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. We "will not second-guess the jury's decision concerning the credibility of witnesses, reweigh the evidence, or substitute [our] judgment for that of the jury. So long as a rational jury could have found beyond a reasonable doubt the essential facts required for a conviction, [the appellate c]ourt will not upset a jury's conclusions." State v. Ramirez, 2018-NMSC-003, ¶ 6, 409 P.3d 902 (alteration, emphasis, internal quotation marks, and citations omitted).

B. The Evidence Presented Was Sufficient to Support Defendant's Convictions for Child Abuse

{6} Defendant contends that his convictions for child abuse were not supported by sufficient evidence. "Jury instructions become the law of the case against which the sufficiency of the evidence is to be measured." State v. Smith, 1986-NMCA- 089, ¶ 7, 104 N.M. 729, 726 P.2d 883. With respect to the charge of child abuse resulting in great bodily harm, the jury here was instructed as follows:

For you to find [Defendant] guilty of child abuse resulting in great bodily harm, as charged in Count 1, the [S]tate must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:

1. [Defendant] shot [J.A.];

2. By engaging in the conduct described in Paragraph 1, [Defendant] caused [J.A.] to be placed in a situation that endangered the life or health of [J.A.];

3. [Defendant] showed a reckless disregard without justification for the safety or health of [J.A.]. To find that [Defendant] showed a reckless disregard, you must find that [Defendant]'s conduct was more than merely negligent or careless. Rather, you must find that [Defendant] caused a substantial and unjustifiable risk of serious harm to the safety or health of [J.A.]. A substantial and unjustifiable risk is one that any law-abiding person would recognize under similar circumstances and that would cause any law-abiding person to behave differently than [Defendant] out of concern for the safety or health of [J.A.].

4. [Defendant]'s conduct resulted in great bodily harm to [J.A.];

5. . . . Defendant did not act in self-defense;

6. [J.A.] was under the age of eighteen (18);

7. This happened in New Mexico on or about the 26th day of June, 2013.

{7} With respect to the first charge of child abuse not resulting in great bodily harm, the jury was instructed as follows:

For you to find [Defendant] guilty of child abuse, as charged in Count 2, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:

1. [Defendant] shot a firearm in the presence of [Ma.G.];

2. By engaging in the conduct described in Paragraph 1, [Defendant] caused [Ma.G.] to be placed in a situation that endangered the life or health of [Ma.G.];

3. [Defendant] showed a reckless disregard without justification for the safety or health of [Ma.G.]. To find that [Defendant] showed a reckless disregard, you must find that [Defendant]'s conduct was more than merely negligent or careless. Rather, you must find that [Defendant] caused a substantial and unjustifiable risk of serious harm to the safety or health of [Ma.G.]. A substantial and unjustifiable risk is one that any law-abiding person would recognize under similar circumstances and that would cause any law-abiding person to behave differently than [Defendant] out of concern for the safety or health of [Ma.G.];

4. . . . [D]efendant did not act in self-defense;

5. [Ma.G.] was under the age of eighteen (18);

6. This happened in New Mexico on or about the 26th day of June, 2013.

The jury was instructed likewise with regard to the charge of child abuse without bodily injury of Me.G.

{8} Defendant's sufficiency argument is premised almost entirely on his assertion that the "State presented no evidence that [Defendant] was aware that children were present during Trey's attack." Along the same lines, Defendant argues that there is not sufficient proof of mens rea "[w]here a defendant is cognizant that he might injure a member of the public and a child is incidentally affected[.]"

{9} The Legislature defined child abuse, in pertinent part, as "knowingly, intentionally or negligently, and without justifiable cause, causing or permitting a child to be . . . placed in a situation that may endanger the child's life or health[.]" NMSA 1978, § 30-6-1(D)(1) (2009). "Section 30-6-1(D)(1) encompasses abuse by endangerment that results in physical or emotional injury as well as those circumstances where the abused child suffers no injury of any kind at all." Ramirez, 2018-NMSC-003, ¶ 50.

{10} In State v. Consaul, 2014-NMSC-030, ¶¶ 37-40, 332 P.3d 850, our Supreme Court clarified that the proper standard for the lowest level of child abuse under Section 30-6-1(D) is "recklessness" and that juries should no longer be instructed on "negligent" child abuse. The standard for determining child abuse has evolved from a "reasonable probability or possibility that the child will be endangered[,]" State v. Ungarten, 1993-NMCA-073, ¶ 11, 115 N.M. 607, 856 P.2d 569 (internal quotation marks and citation omitted), abrogated on other grounds by State v. Chavez, 2009-NMSC-035, ¶ 22, 146 N.M. 434, 211 P.3d 891, to a "substantial and foreseeable risk of harm[,]" Chavez, 2009-NMSC-035, ¶ 22, (emphasis, internal quotation marks, and citation omitted), and now to its present formulation, a "substantial and unjustifiable risk of [serious harm]." Consaul, 2014-NMSC...