State v. Castaneda

• Decision Date: 26 April 2001
• Docket Number: No. 21,091.,21,091.
• Citation: 130 N.M. 679,2001 NMCA 52,30 P.3d 368
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Sandra CASTAŇEDA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

30 P.3d 368

130 N.M. 679

2001 NMCA 52

STATE of New Mexico, Plaintiff-Appellee, v. Sandra CASTAŇEDA, Defendant-Appellant.

No. 21,091.

Court of Appeals of New Mexico.

April 26, 2001.

Certiorari Denied June 18, , 2001.

Patricia A. Madrid, Attorney General, Margaret McLean, Assistant Attorney General, Santa Fe, NM, for Appellee.

Phyllis H. Subin, Chief Public Defender, Sheila Lewis, Assistant Public Defender, Santa Fe, NM, for Appellant.

Certiorari Denied, Nos. 26,026 and 26,987, June 18, 2001 and July 11, 2001.

OPINION

FRY, Judge.

{1} Defendant was convicted of three counts of child abuse and one count each of aggravated driving while under the influence (refusal); driving on the wrong side of the road; no insurance; and resisting, evading, or obstructing an officer. She was acquitted of two counts of child not properly restrained. Defendant now appeals her convictions.

{2} Defendant makes five arguments on appeal: (1) that her convictions under the general child abuse statute should be reversed because the legislature intended the DWI statute to govern in cases of child abuse involving operation of a motor vehicle while intoxicated; (2) that she should not have been convicted of three counts of negligent child abuse because there was evidence of only one negligent act, and there is no evidence that the legislature ever intended the crime of negligent child abuse to be fragmented into multiple crimes; (3) that the State's evidence of child abuse was insufficient to prove criminal negligence because the law requires a finding of wanton conduct to support a criminal conviction for a negligent act; (4) that a juror's attempt to qualify his vote during polling cast doubt on the verdict, and the jury inappropriately shifted the burden of proof to Defendant to show that she was not intoxicated; and (5) that the district court abused its discretion when it refused to qualify a defense witness as an expert and refused to allow that witness to give his expert opinion about Defendant's level of intoxication based on his review of Defendant's videotaped performance of field sobriety tests. We reverse on the second issue and remand with instructions to the district court to merge Defendant's three convictions of child abuse into one conviction of child abuse. We affirm on all other issues.

FACTS

{3} Defendant was driving home from a wedding reception when she was stopped by Deputy Nevarez for making an illegal turn and driving in the wrong lane. Nevarez testified that when he reached Defendant's side window, he smelled alcohol. He testified further that Defendant's eyes were bloodshot and watery and that she appeared to be intoxicated. There was testimony that Defendant did not appear to be intoxicated when she left the wedding and that her level of intoxication could have been as low as .02 when she was driving, based on the amount of alcohol she consumed, the rate of consumption, and other relevant factors. Nevarez testified that he saw three children in the car whom he later learned were ages 8, 9, and 14. Defendant's mother was also in the car. Nevarez testified that no one in the car was wearing a seat belt. Testimony conflicted as to whether the children were in their seatbelts from the time the car left the wedding. When Nevarez asked Defendant for her driver's license, she first fumbled through her cards and gave him an unrelated card, then eventually found her license and gave it to him. When asked whether she had been drinking, Defendant answered that she had been at a wedding and had a pitcher of beer during the reception. She told Nevarez she was drunk.

{4} Nevarez attempted to administer field sobriety tests and the horizontal gaze nystagmus test. In his opinion, Defendant did not successfully complete the field sobriety tests because she was staggering and stumbling, and she showed signs of nystagmus. When he later tried to administer the breathalyzer test, Defendant told him that she was drunk and did not need to perform any tests.

DISCUSSION

I. The General/Specific Statute Rule

{5} Defendant argues that her convictions for child abuse should be reversed because the legislature intended the DWI statute to govern in cases of child abuse involving operation of a motor vehicle while intoxicated. Defendant urges us to apply the general/specific statute rule, which states that if one statute addresses a subject generally, and another statute addresses the same subject specifically, the more specific statute controls and a defendant cannot be charged with or punished for violation of both statutes. State v. Cleve, 1999-NMSC-017, ¶¶ 17, 25, 127 N.M. 240, 980 P.2d 23. In determining whether the general/specific statute rule applies, we undertake the two lines of analysis set forth in State v. Guilez, 2000-NMSC-020, ¶ 7, 129 N.M. 240, 4 P.3d 1231: quasi-double-jeopardy analysis and preemption analysis.

A. Quasi-Double-Jeopardy Analysis

{6} Under quasi-double-jeopardy analysis, we first determine whether the prohibited conduct under the general and specific statutes is unitary. Id. ¶ 12. Defendant was charged with two crimes: (1) placing a child in a situation that may endanger the child's life or health, see NMSA 1978, § 30-6-1(C)(1) (1997); and (2) refusing to submit to alcohol testing at a time when she was found to be driving while under the influence of alcohol, see NMSA 1978, § 66-8-102(D)(3) (1999). The test for unitary conduct is whether the two events are "sufficiently separated by time or space, or whether the quality and nature of the acts, objects, and results can be distinguished." State v. Davis, 2000-NMCA-105, ¶ 6, 129 N.M. 773, 14 P.3d 38.

{7} Here we find that Defendant's conduct was not unitary. The jury could have found Defendant guilty of child abuse on the basis of conduct other than DWI, such as her failure to properly restrain the children. See Guilez, 2000-NMSC-020, ¶ 13 (finding non-unitary conduct where conduct supporting child abuse was completed, although continuing, when defendant placed child in vehicle without child restraint device, while conduct supporting reckless driving did not begin until defendant began driving carelessly). Defendant argues that failure to restrain the children cannot be the basis for the child abuse charge because the jury acquitted her on the charges of child restraint violations. We disagree. We can only speculate as to the reasons for the jury's decision to acquit, and inconsistent verdicts are not necessarily irrational or erroneous. See State v. Padilla, 86 N.M. 282, 284, 523 P.2d 17, 19 (Ct.App. 1974). Because the conduct is non-unitary, we next determine whether the legislature intended to preempt the child abuse statute.

B. Preemption Analysis

{8} Preemption analysis focuses on whether the legislature intended the DWI statute to operate as an exception to the child abuse statute. Cleve, 1999-NMSC-017, ¶ 27. In other words, did the legislature intend to limit prosecutorial discretion such that a person who drives intoxicated with a child in the car is charged only under the DWI statute? To answer this question, we employ traditional rules of statutory construction. Id. ¶¶ 26-27. Looking first at the elements of the two crimes, it appears that the child abuse statute and the more specific DWI statute criminalize some of the same conduct. When a person drives while intoxicated with a child in the car, he arguably also "knowingly, intentionally or negligently, and without justifiable cause, ... permit[s] a child to be ... placed in a situation that may endanger the child's life or health" in violation of the child abuse statute. Section 30-6-1(C). Thus, the two statutes appear to be in conflict. However, we must determine whether the legislature intended to repeal the child abuse statute, as it applies to children in vehicles driven by persons under the influence, when it enacted the Motor Vehicle Code, generally, and the DWI statute, specifically. See Guilez, 2000-NMSC-020, ¶ 15.

{9} We are guided by Guilez, in which a defendant was charged with both child abuse and reckless driving. Id. ¶ 1. Holding that the legislature did not intend to repeal the child abuse statute when it enacted the reckless driving statute, Guilez noted that the two statutes have distinct purposes. "The child abuse statute was designed to give greater protection to children than adults" and evidences an intent to impose more severe penalties for endangering a child's safety than for jeopardizing another adult's safety. Id. ¶ 17. "[T]he reckless driving statute punishes conduct that might harm either a member of the general public or any property." Id. Neither the reckless driving statute addressed in Guilez nor the DWI statute at issue here provides extra protection for children. See id. ¶ 20.

{10} Defendant argues that the legislature intended the DWI statute to be an exception to the child abuse statute. As support for her position, she notes that the legislature increased DWI penalties twenty-four years after it enacted the child abuse statute. She argues that the increase in penalties was intended to preempt the field when the danger was caused by drunk driving. We are not persuaded. The legislature increased the penalties for child abuse at the same time it was increasing the penalties for DWI. In 1989 the legislature changed "child abuse not resulting in great bodily harm" from a fourth degree felony to a third degree felony. See 1989 N.M. Laws, ch. 351, § 1. In 1988 the legislature increased the penalties for second or subsequent DWI, 1988 N.M. Laws, ch. 56, § 8, and in 1993 it added the misdemeanor with which Defendant was charged—aggravated DWI. 1993 N.M. Laws, ch. 66, § 7. These amendments demonstrate that the legislature intends to protect two distinct interests through two distinct statutory schemes; the child abuse statute protects children from abuse, and the DWI statute protects the general public (including children) from intoxicated drivers.

...