State v. Consaul
| Decision Date | 20 February 2012 |
| Docket Number | NO. 29,559,29,559 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. DANIEL CONSAUL, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
This memorandum opinion was not selected for publication in the New Mexico 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 DOÑA ANA COUNTY
Gary K. King, Attorney General
Santa Fe, NM
Ralph E. Trujillo, Assistant Attorney General
for Appellee
Jacqueline L. Cooper, Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM
for Appellant
Our opinion filed August 31, 2011 is hereby withdrawn, and this opinion is filed in its stead. We deny Defendant's motion for rehearing.
Defendant Daniel Consaul appeals from a judgment, order, and commitment convicting him of child abuse, contrary to NMSA 1978, Section 30-6-1(C), (D) (2005) (amended 2009), sentencing him to eighteen years imprisonment, and designating the offense as a serious violent offense (SVO), pursuant to the Earned Meritorious Deductions Act (EMDA), NMSA 1978, § 33-2-34 (2004) (amended 2006). On appeal, Defendant argues that (1) the State failed to present sufficient evidence that Defendant intentionally or negligently caused the victim's brain injuries, (2) Dr. Denise Coleman, an expert witness in critical care pediatrics and child abuse, impermissibly told the jury that the victim's injuries were caused by child abuse, (3) Dr. Mary Johnson, an expert witness in pediatric neurology, impermissibly commented on the veracity of Defendant when she testified that because Defendant's story changed she suspected child abuse, (4) the district court erred in denying defense counsel's request for separate jury instructions and separate verdict forms for negligent child abuse and intentional child abuse, (5) the district court erred in determining that it could not mitigate Defendant's sentence, and (6) the district court erred in determining that Defendant's offense was an SVO. We affirm.
The State charged Defendant with one count of child abuse resulting in great bodily harm after ten-week-old Jack Consaul suffered neurological injuries (brain injuries) while in Defendant's care. Defendant is Jack's uncle and occasional caretaker. Defendant babysat Jack on the night Jack suffered his brain injuries while Jack's mother, Defendant's sister, Heidi Consaul (Heidi) worked. The criminal complaint alleged that Defendant either "knowingly, intentionally or negligently and without justifiable cause, permitted or caused Jack . . . to be placed in a situation that may endanger the child's life or health, which resulted in [Jack] suffering great bodily harm."
Defendant's version of events derived from two interviews with Detective Mark Meyers that occurred shortly after the incident. In the first interview, Defendant stated that Jack was sleeping in his crib when he suddenly cried out. Defendant rushed to the bedroom and found that Jack had vomited in the crib and appeared rigid. In his second interview, which occurred once the doctors treating Jack began to suspect child abuse, Defendant admitted to getting frustrated with Jack because Jack would not stop crying. Defendant admitted swaddling Jack tightly with a blanket and placing Jack face down on a pillow in the crib for at least an hour. Defendant checked on Jack once and observed that Jack seemed to be fine and sleeping. Shortly after checking onJack, Defendant heard Jack scream and found that Jack had vomited and appeared rigid. He called Heidi and a neighbor, and they both rushed to the apartment. They took Jack to an emergency room in Las Cruces, and Jack was subsequently airlifted to the University of New Mexico Hospital (UNMH).
Initially, the pediatrician on call at the emergency room, Dr. Hernan Ciudad, thought Jack had an infection and that his symptoms were due to septic shock. The pediatric intensivist at UNMH who initially treated Jack, Dr. Dawn Joseph, also believed that Jack suffered from a bacterial infection and was in septic shock. Once Jack's cultures came back negative for infection, Dr. Joseph determined that Jack was not in septic shock and could not find anything else wrong with Jack. Shortly thereafter, CT and MRI scans revealed that Jack suffered brain damage, brain swelling, and ischemia, which is insufficient blood flow to the brain.
On the second day in the hospital, Jack suffered a seizure that could not be contained with anti-seizure medication. Dr. Joseph called Dr. Mary Johnson, a pediatric neurologist at UNMH, to provide a consultation due to Jack's seizure. Dr. Johnson suggested that Jack may have suffered from suffocation, and Dr. Joseph concurred that suffocation explained all of Jack's symptoms. Once the UNMH doctors determined that suffocation caused Jack's injuries, a child abuse investigation began.
The State charged Defendant, in the alternative, with negligent child abuse and intentional child abuse. With regard to the negligent child abuse charge, the State's theory was that Jack's injuries were caused by Defendant swaddling Jack too tightly and placing him face down out of frustration, actions that the State argued amount to gross recklessness for the safety and welfare of Jack. Regarding the intentional child abuse charge, the State's theory of the case was that swaddling Jack and placing him face down would not cause such severe brain injuries and therefore Defendant intentionally suffocated Jack to get him to stop crying. Defendant presented evidence and argued that Jack's injuries were not caused by suffocation while Jack was in Defendant's care and instead that Jack suffered brain damage while at UNMH caused by excessive fluid given to Jack in order to treat the original diagnosis that Jack suffered from septic shock as a result of an infection.
Defendant requested a separate jury instruction and separate verdict forms for negligent child abuse and intentional child abuse. The district court denied Defendant's request and provided the jury with a single jury instruction, which included the mens rea for negligent and intentional child abuse in the alternative and a general verdict form. The jury returned a general verdict convicting Defendant of child abuse. At Defendant's sentencing hearing, the district court sentenced Defendant to a basic sentence of eighteen years. The district court did not considermitigating factors at the sentencing hearing, reasoning that because our Supreme Court declared NMSA 1978, Section 31-18-15.1 (1993) (amended 2009), facially unconstitutional, it did not have discretion to consider mitigating factors. The district court further found that Defendant's conviction was an SVO under the EMDA, Section 33-2-34(L)(4)(o)(9), finding that Defendant acted intentionally in causing Jack's brain injuries.
On appeal, Defendant argues that (1) the State failed to present sufficient evidence that Defendant intentionally or negligently caused Jack's brain injuries, (2) Dr. Coleman, an expert witness in critical care pediatrics and child abuse, impermissibly told the jury that Jack's injuries were caused by child abuse, (3) Dr. Johnson, an expert witness in pediatric neurology, impermissibly commented on the veracity of Defendant when she testified that because Defendant's story changed she suspected child abuse, (4) the district court erred in denying defense counsel's request for separate jury instructions and separate verdict forms for negligent child abuse and intentional child abuse, (5) the district court erred in determining that it lacked discretion to mitigate Defendant's sentence, and (6) the district court erred in determining that Defendant's offense was an SVO. We affirm.
Defendant argues that the State failed to present sufficient evidence that Defendant either intentionally or negligently caused Jack's brain injuries. Because the jury returned a general verdict, we address whether sufficient evidence supported Defendant's convictions for both negligent child abuse and intentional child abuse. "The test for sufficiency of the evidence is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction." State v. Sena, 2008-NMSC-053, ¶ 10, 144 N.M. 821, 192 P.3d 1198 (internal quotation marks and citation omitted). "[S]ubstantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion[.]" State v. Baca, 1997-NMSC-059, ¶ 14, 124 N.M. 333, 950 P.2d 776 (internal quotation marks and citation omitted). We view the evidence in the light most favorable to, and indulge all inferences in favor of, the verdict. Sena, 2008-NMSC-053, ¶ 10; State v. Sanders, 117 N.M. 452, 456, 872 P.2d 870, 874 (1994). If there is sufficient evidence supporting the verdict, we do not reweigh the evidence or substitute our judgment for that of the factfinder. State v. Fuentes, 2010-NMCA-027, ¶ 13, 147 N.M. 761, 228 P.3d 1181.
In order to convict Defendant of negligent child abuse, the State had to prove beyond a reasonable doubt that (1) Defendant endangered the life or health of Jack,(2) Defendant acted with reckless disregard, (3) Defendant's actions or failure to act resulted in great bodily harm to Jack, and (4) Jack was under the age of eighteen. See UJI 14-602 NMRA. In order to find that Defendant acted with reckless disregard, the State had to prove that Defendant knew or should have known that his conduct created a substantial and foreseeable...
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