State v. Chavez

• Decision Date: 11 October 2007
• Docket Number: No. 25,490.,25,490.
• Citation: 2007 NMCA 162,173 P.3d 48
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Kimberly Rose CHAVEZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

173 P.3d 48

2007 NMCA 162

STATE of New Mexico, Plaintiff-Appellee, v. Kimberly Rose CHAVEZ, Defendant-Appellant.

No. 25,490.

Court of Appeals of New Mexico.

October 11, 2007.

Certiorari Denied, No. 30,733, November 20, 2007.

Gary K. King, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellee.

John Bigelow, Chief Public Defender, Sheila Lewis, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Freeman Boyd Daniels Hollander Goldberg & Ives P.A., Martha A. Mulvany, Albuquerque, NM, for Amicus Curiae New Mexico Criminal Defense Lawyers Association.

OPINION

ROBINSON, Judge.

{1} A jury convicted Kimberly Rose Chavez (Defendant) of one count of abandonment or abuse of a child resulting in death, and possession of drug paraphernalia. Defendant raises several issues on appeal: (1) the district court erred in excluding a proposed exhibit of a report from the U.S. Consumer Products Safety Commission; (2) the evidence was insufficient to support a conviction for negligent child abuse resulting in death; (3) the jury instruction given for negligent child abuse resulting in death was incorrect and incomplete; and (4) she received ineffective assistance of counsel. We affirm.

I. BACKGROUND

{2} On December 9, 2003, Defendant said that her son (Child) had been sick with bronchitis, and she put him to bed at 10:00 p.m. She placed the swaddled infant on a low youth bed with no side rails, on his back with a bottle, and covered him with another blanket. Because the house had no central heat, she placed an electric space heater on the floor "catty-corner" to the bed. The heater was approximately nine inches from the youth bed at its closest point. Defendant said she fell asleep on the couch in the adjoining room. Defendant left her Child unattended all night, swaddled in blankets, on a bed with no rails. Child rolled off the bed and was burned to death by the space heater left beside the bed.

{3} The State presented evidence that on December 10, 2003, at 10:23 a.m., officers responded to a dispatch call at Defendant's home. Beside the smell of burnt flesh, the officers saw drug paraphernalia in plain view consisting of a brass pipe, a lighter, a nail clipper with burnt ends, a little plastic jar with a foil-wrapped pipe inside, and an ashtray. Defendant then consented to a search where the officers found a glass pipe with a burnt end on the kitchen shelf, a small jeweler's bag with white residue in the master bedroom, and a pipe bong. A forensic scientist testified that the two metal pipes tested positive for marijuana, and the residue in the glass pipe and in the small bag tested positive for methamphetamine. Defendant's blood was drawn that day at 3:40 p.m. and tested positive for methamphetamine. A certified technician from the Department of Health was unable to definitely say when Defendant ingested the methamphetamine, but agreed it was consistent with ingestion during the previous twenty-four hours.

{4} Defendant was convicted of one count of abandonment or abuse of a child resulting in death-a first-degree felony-contrary to NMSA 1978, § 30-6-1(D)(1) (2005), and possession. Defendant appeals.

II. DISCUSSION

A. The Trial Court Did Not Err in Excluding the Defense's Proposed Exhibit of a Report From the U.S. Consumer Products Safety Commission

{5} "Admission or exclusion of evidence is a matter within the discretion of the trial court and the court's determination will not be disturbed on appeal in the absence of a clear abuse of that discretion." State v. Stampley, 1999-NMSC-027, ¶ 37, 127 N.M. 426, 982 P.2d 477 (internal quotation marks and citation omitted).

{6} Defense counsel sought permission to introduce at trial a six-page document dated February 2001, generated by the U.S. Consumer Products Safety Commission, regarding the consumer use of space heaters and incidents of death from their use. The district court ruled the report irrelevant because Defendant did not read the report, nor was she familiar with the report. The court also found that the other deadly incidents discussed in the report were not relevant to this case. We agree.

{7} Even assuming, arguendo, that the district court erred, the purported error in this case was harmless. New Mexico follows the standard for harmless error set out by the United States Supreme Court in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See State v. Jett, 111 N.M. 309, 312, 805 P.2d 78, 81 (1991). In Chapman, the Supreme Court defined the standard as "whether there is a reasonable possibility that the [error] might have contributed to the conviction." 386 U.S. at 23, 87 S.Ct. 824 (improper admission of evidence) (internal quotation marks and citation omitted). In State v. Balderama, our Supreme Court held that "[e]rror in the exclusion of evidence in a criminal trial is prejudicial and not harmless if there is a reasonable possibility that the excluded evidence might have affected the jury's verdict." 2004-NMSC-008, ¶ 41, 135 N.M. 329, 88 P.3d 845.

{8} We do not see how the report could have contributed to Defendant's argument in any way that would have altered the outcome of the trial. Assuming the report had been admitted into evidence, Defendant had never seen or relied upon the report prior to Child's death, and it did not directly relate to any fact at issue in this case. Therefore, we affirm the district court.

B. The Conviction for Child Abuse Resulting in Death Was Supported by Sufficient Evidence

{9} Defendant contends that there was insufficient evidence to convict her of criminal negligent child abuse or abandonment resulting in death. In evaluating a claim that the evidence is insufficient to support a conviction, the analysis is 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. Apodaca, 118 N.M. 762, 765-66, 887 P.2d 756, 759-60 (1994). "A reviewing court must view the evidence in the light most favorable to the state, resolving all conflicts therein and indulging all permissible inferences therefrom in favor of the verdict." State v. Reyes, 2002-NMSC-024, ¶ 43, 132 N.M. 576, 52 P.3d 948 (quoting State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988)). 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." Sutphin, 107 N.M. at 131, 753 P.2d at 1319.

{10} The State presented evidence that on December 9, 2003, Defendant said that Child had been sick with bronchitis, and she put him to bed at 10:00 p.m. She placed Child on a low youth bed, on his back with a bottle, and covered him with blankets. The bed was positioned against the wall, and Defendant placed Child with his head pointing toward the wall so that, if he rolled, the railings at the head and foot of the bed might block him. Because the house had no central heat, she placed an electric space heater on the floor catty-corner to the bed. The heater was approximately nine inches from the youth bed at its closest point. Defendant said she fell asleep on the couch. Defendant left Child unattended all night, swaddled in blankets, on a bed with no rails. He rolled off the bed and was burned to death by the space heater left beside the bed. This evidence satisfies the elements of negligent child abuse resulting in death.

{11} In light of the evidence presented, it is not unreasonable for the jury to have determined that Defendant was guilty of one count of abandonment or abuse of a child resulting in death. Child was placed in a dangerous situation, which was created by Defendant because she placed Child in a sleeping arrangement that was highly and obviously dangerous to an infant and then completely failed to monitor him. Defendant testified that she knew Child could fall off the bed if left alone, and agreed it was important to check on him, especially since he was sick.

{12} Defendant argues that Child's death was not foreseeable. The jury's finding to the contrary is amply supported. Child was not even six months old and was swaddled in blankets. He could roll, but had no other substantial control over his bodily movements. Defendant was aware of this and placed Child in a way that, if he rolled, he would probably roll toward one end of the bed and not off the bed. However, the possibility that an unattended infant could manage to roll off a bed with no rails is far from unforeseeable. The foreseeability that Child would roll off the bed and be injured by the heater because of his near complete inability to move away from it is evident. The danger was not remote, improbable, or unexpected. The evidence sufficiently supported the conviction for negligent child abuse resulting in death.

{13} "The jury, as the trier of fact, was entitled to weigh this evidence." State v. Hunter, 101 N.M. 5, 7, 677 P.2d 618, 620 (1984). Therefore, we hold that a rational jury could have relied on this evidence to satisfy each element of the negligent child abuse resulting in death instruction and, as stated in Hunter, "[t]his Court will not substitute its determination for that of the jury." Id.

C. The Jury Instructions Given Were the Approved Uniform Jury Instructions and Did Not Constitute Fundamental Error

{14} Defendant contends that the jury instructions improperly permitted the jury to convict her of the negligent child abuse charge based upon a civil negligence standard rather than a criminal negligence standard. We disagree.

{15} "The propriety of jury instructions given or denied is a mixed question of law and fact. Mixed questions of law and fact are reviewed de novo." State v. Salazar, 1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996. Here, we must also decide whether a reasonable juror would have been confused or misled by the instruction. State v....