State v. Bustillos

• Decision Date: 01 April 2014
• Docket Number: NO. 31,354,31,354
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. ISRAEL BUSTILLOS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee, v. ISRAEL BUSTILLOS, Defendant-Appellant.

NO. 31,354

COURT OF APPEALS OF THE STATE OF NEW MEXICO

Dated: April 1, 2014

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

Reed Sheppard, District Judge

Gary K. King, Attorney General

Yvonne M. Chicoine, Assistant Attorney General

Santa Fe, NM

for Appellee

D. Chipman Venie

Albuquerque, NM

for Appellant

MEMORANDUM OPINION

VIGIL, Judge.

{1} On December 22, 2007, Defendant's five-month-old daughter, Baby Geovanndied while in Defendant's care. Baby Geovanny's autopsy revealed she had died of blunt force trauma to her head. Defendant was charged with one count of child abuse resulting in death or great bodily harm, intentionally inflicted, negligently inflicted, or negligently permitted, and an additional count of child abuse because the autopsy revealed older injuries as well. The jury found Defendant guilty of one count of child abuse, negligently caused death or great bodily harm, in violation of NMSA 1978, Section 30-6-1(D) (2009), and acquitted Defendant of the remaining charges. This appeal followed. We affirm.

ANALYSIS

{2} Defendant raises the following seven issues on appeal:(1) the State failed to provide sufficient evidence that Defendant negligently caused Baby Geovanny's death beyond a reasonable doubt; (2) the testimony of the supervising forensic pathologist regarding Baby Geovanny's autopsy violated the Confrontation Clause; (3) the trial court erred in not permitting Defendant to introduce evidence of pertinent character traits; (4) the trial court erred in denying Defendant's request for a continuance so that his expert could testify in person; (5) the trial court erred in allowing the testimony of a rebuttal witness; (6) the trial court erred in denying Defendant's motion for a new trial due the rebuttal witness's alleged perjury; and (7) the prosecutor committed reversible error under Brady for allegedly failing to produce exculpatory evidence. Weaddress each issue in turn below.

1. Sufficiency of the Evidence

{3} Defendant argues that the evidence presented at trial was insufficient to support the guilty verdict for child abuse negligently causing Baby Geovanny's death. After an examination of the record, we conclude that the evidence was sufficient and affirm.

A. Facts

{4} On the morning of December 22, 2007, police responded to a 911 call that an infant (Baby Geovanny) had stopped breathing. Paramedics were already present and administering CPR on Baby Geovanny when police arrived. Defendant told police that he was caring for Baby Geovanny and his two-year-old son while his girlfriend, the children's mother, went to work. He said that Baby Geovanny had recently been diagnosed with an ear infection and was acting fussy that morning. He also said that he had given her a bath to try to sooth her and placed her in her crib, before cooking breakfast for his son. Defendant told police that he then realized that Baby Geovanny had stopped crying. When he went to check on her, he found that she was not breathing and was cold to the touch. He then called Baby Geovanny's maternal grandmother, Lucy Hermosillo, and told her Baby Geovanny was not breathing. Ms. Hermosillo asked him why he was calling her instead of 911. She then sped to Defendant's apartment. According to Ms. Hermosillo, it took her three to five minutesto arrive, and evidence showed Defendant called 911 after she arrived. Defendant told police he had panicked. Ms. Hermosillo performed CPR until the paramedics arrived. The attempts to resuscitate Baby Geovanny failed and she died at the scene.

{5} Baby Geovanny's autopsy revealed that although the only sign of external injury was a superficial scratch on her back by her neck that showed signs of healing, she had several internal injuries that indicated she had suffered head trauma. Her internal injuries included a hemorrhage deep in her brain, a laceration or tear on her brain, and two recent bruises on her skull. She also had older injuries, including hemorrhages around her optic nerves that were covered in new blood indicative of recent trauma on top of old injury, a subdural hematoma that was at least four days old but also had fresh blood on it that could have come from the day she died, a brain hemorrhage on the front part of her brain, a rib fracture callus, and a pelvic fracture callus.

{6} The forensic pathologist from the Office of the Medical Investigator (OMI) that supervised the autopsy, Dr. Michelle Barry-Aurelius, testified that in her opinion Baby Geovanny died of blunt force trauma to the head and the manner of death was homicide. She explained that shaking a baby, throwing a baby, or hitting a baby's head against something hard can cause optic nerve sheath hemorrhages and that shaking a baby or a head impact could have caused the tear on her brain. She alsotestified the dying brain cells she saw in Baby Geovanny's brain indicated that Baby Geovanny would have been unconscious or comatose within seconds of the head trauma and that Baby Geovanny survived in this comatose state for a few hours before dying. Approximately three and one-half hours passed from the time the mother left for work and the time Defendant called 911 to report that Baby Geovanny had stopped breathing.

B. Standard of Review

{7} In examining Defendant's claim, we review "whether substantial evidence exists of either a direct or circumstantial nature to support a verdict of guilty beyond a reasonable doubt with respect to each element of the crime charged." State v. Chavez, 2007-NMCA-162, ¶ 9, 143 N.M. 126, 173 P.3d 48. In making this determination, "we must view 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. Quinones, 2011-NMCA-018, ¶ 37, 149 N.M. 294, 248 P.3d 336 (internal quotation marks and citation omitted); accord State v. Reyes, 2002-NMSC-024, ¶ 43, 132 N.M. 576, 52 P.3d 948, abrogated on other grounds by Allen v. LeMaster, 2012-NMSC-001, 267 P.3d 806. "We do not weigh the evidence or substitute our judgment for that of the fact finder so long as there is sufficient evidence to support the verdict." Chavez, 2007-NMCA-162, ¶ 9 (alteration, internalquotation marks, and citation omitted).

C. Discussion

{8} Defendant was convicted of criminally negligent child abuse resulting in death or great bodily harm for Baby Geovanny's death. Child abuse "consists of a person 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." See NMSA 1978, § 30-6-1(D)(1) (2009). In this context, "'negligently' refers to criminal negligence and means that a person knew or should have known of the danger involved and acted with a reckless disregard for the safety or health of the child." Section 30-6-1(A)(3).

{9} We review Defendant's claim of insufficient evidence through the lens of the jury instructions for negligent child abuse resulting in death or great bodily harm. See Quinones, 2011-NMCA-018, ¶ 38 ("The sufficiency of the evidence is assessed against the jury instructions because they become the law of the case."). In order to find Defendant guilty of this count, the jury was required to find that: (1) Defendant caused Baby Geovanny "to be placed in a situation which endangered the life or health of[Baby Geovanny]"; (2) Defendant "acted with reckless disregard and without justification"; requiring a finding that Defendant knew or should have known that his "conduct created a substantial and foreseeable risk"; that he disregarded that risk andthat he "was wholly indifferent to the consequences of the conduct and to the welfare and safety of [Baby Geovanny]"; (3) "[Defendant's] actions or failure to act resulted in the death of or great bodily harm to [Baby Geovanny]"; (4) [Baby Geovanny] was under the age of 18"; and (5) "This happened in New Mexico on or about the 22nd day of December, 2007." See UJI 14-602 NMRA.

{10} Defendant contends that there was insufficient evidence to support a finding that he was "wholly indifferent to the consequences of the conduct and to the welfare and safety of [Baby Geovanny]" because he took at least four different actions trying to save her. Defendant then describes the actions he took once he discovered that Baby Geovanny was not breathing. He insists that the jury must have concluded that Defendant did nothing when he found Baby Geovanny in medical distress in order to find him guilty. He intimates his behavior amounted to ordinary negligence, which he points out is not sufficient. See State v. Massengill, 2003-NMCA-024, ¶ 45, 133 N.M. 263, 62 P.3d 354 ("Our Supreme Court has determined that 'the child abuse statute contains no indication that the [L]egislature intended felony punishment to attach to ordinary negligent conduct.'" (quoting Santillanes v. State, 1993-NMSC-012, ¶ 31, 115 N.M. 215, 849 P.2d 358)). However, Defendant's arguments overlook the fact that the jury may not have necessarily considered any of his actions after he found Baby Geovanny unresponsive in reaching its guilty verdict. He was not convicted ofchild abuse due to medical neglect resulting in death or great bodily harm, where his actions after finding his child in need of medical attention would have been relevant. See, e.g., State v. Nichols, 2013-NMCA-_, ¶ 1,_P.3d_(No. 30,783, Dec. 20, 2013) (affirming the defendant's conviction for child abuse due to medical neglect resulting in death or...