State v. Davis, 26,573.

• Docket Nº: No. 26,573.
• Citation: 2009 NMCA 067, 212 P.3d 438
• Case Date: June 25, 2009
• Court: Court of Appeals of New Mexico

212 P.3d 438 2009 NMCA 067 STATE of New Mexico, Plaintiff-Appellee,
v.
Richard DAVIS, Defendant-Appellant. No. 26,573. Court of Appeals of New Mexico. June 25, 2009.

[212 P.3d 439]

Gary K. King, Attorney General, Nicole Beder, Assistant Attorney General, Santa Fe, NM, for Appellee.

Hugh W. Dangler, Chief Public Defender, Eleanor Brogan, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

ROBLES, Judge.

{1} Defendant was convicted of child abuse. On appeal, Defendant raises issues regarding jury instructions, the failure to hold a Faretta hearing, the lack of proof of valid prior felonies for purposes of sentencing, ineffective assistance of counsel, and insufficiency of evidence. Although we hold that there was sufficient evidence to support Defendant's conviction of intentional child abuse, we reverse this conviction and remand for a new trial because of fundamental error in the jury instructions. We need not reach Defendant's remaining appellate issues because of the remand.

I. FACTS

{2} Defendant was taking care of his three-year-old son (Child) at the home of his girlfriend, Maria Gordon. During that time, Gordon's family members called police twice to conduct welfare checks on her. During the second welfare check, the responding officer found Child naked with wounds on his back and stomach. When officers later found Defendant in the bedroom, he became hostile and resisted their attempt to arrest him. Defendant also refused to give the officers any information about Child at that time.

{3} Paramedics examined Child at the scene. The paramedics who examined Child noted more than fifteen marks on his body extending from his upper to lower back. Some of the marks wrapped around onto Child's abdomen. Defendant claimed that Gordon's dog likely caused the marks on Child's body. Doctor Marcey Gillespie examined Child at the emergency room. She observed a number of linear "impact marks" that began on Child's back and wrapped around his upper torso. Doctor Gillespie testified that, in her opinion, the wounds were not consistent with Child being scratched by Gordon's Siberian Husky dog. She noted that Child did not have any broken skin that would be consistent with dog scratches. Doctor Gillespie testified that Child's wounds were consistent with child abuse and appeared to have been caused by him being hit with a thin, flexible object. Tracie Houston, an investigator with the Children, Youth and Families Department, saw Child in the emergency room. She testified

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that, in her experience, Child's wounds were not consistent with dog scratches and that he appeared to have been whipped with a thin, flat object, possibly a cord. Police later searched Gordon's home and retrieved various cords that were consistent with Child's injuries.

{4} Defendant testified at trial that he did not cause Child's injuries. According to Defendant, the injuries were caused by Gordon's dog scratching Child. Additional facts are set out below.

II. ANALYSIS

A. Jury Instructions

{5} Defendant was indicted for intentional child abuse, contrary to NMSA 1978, Section 30-6-1(D)(2) (2005), under a theory of cruelly punishing, torturing, or cruelly confining Child by whipping his back with an unknown object. Defendant was not indicted for negligent child abuse, and the State did not seek to amend the indictment to charge negligent child abuse at any time.

{6} Following the close of evidence, the court instructed the jury on both intentional and negligent child abuse. The instruction stated as follows:

For you to find [Defendant] guilty of child abuse which did not result in death or great bodily harm, the [S]tate must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:

1. [Defendant] caused [Child] to be placed in a situation which endangered the life or health of [Child] or tortured or cruelly punished [Child].

2. [D]efendant acted intentionally or with reckless disregard and without justification.

To find that [Defendant] acted with reckless disregard, you must find that [Defendant] knew or should have known ... Defendant's conduct created a substantial and foreseeable risk, ... Defendant disregarded that risk and ... Defendant was wholly indifferent to the consequences of the conduct and to the welfare and safety of [Child].

3. [Child] was under the age of 18[.]

4. This happened in New Mexico on or about the 24th day of September, 2002.

(Emphasis added.) The verdict form returned by the jury stated that it found Defendant guilty of abuse of a child without specifying whether the jury found intentional or negligent child abuse.

{7} Defendant argues that the district court erred in instructing the jury on both negligent and intentional child abuse. Defendant made no objection to the jury instructions below; therefore, the district court had no opportunity to address the issue. We review Defendant's challenge to the instruction for fundamental error. See Rule 12-216(B)(2) NMRA; State v. Gonzalez, 2005-NMCA-031, ¶ 19, 137 N.M. 107, 107 P.3d 547 (stating that when a defendant does not object to the jury instructions as given, an appellate court reviews that instruction for fundamental error). Fundamental error exists "if there has been a miscarriage of justice, if the question of guilt is so doubtful that it would shock the conscience to permit the conviction to stand, or if substantial justice has not been done." State v. Sutphin, 2007-NMSC-045, ¶ 16, 142 N.M. 191, 164 P.3d 72 (internal quotation marks and citation omitted); see State v. Barber, 2004-NMSC-019, ¶ 17, 135 N.M. 621, 92 P.3d 633 (explaining that fundamental error includes both "cases with defendants who are indisputably innocent, and cases in which a mistake in the process makes a conviction fundamentally unfair notwithstanding the apparent guilt of the accused").

{8} The State concedes that the district court erred in submitting the instruction on negligent child abuse to the jury, and we agree. "A defendant in a criminal case is entitled to know what he is being charged with and to be tried solely on those charges. It is improper to instruct the jury as to a crime not formally charged if that crime is not a lesser[-]included offense of the crime formally charged." State v. Johnson, 103 N.M. 364, 371-72, 707 P.2d 1174, 1181-82 (Ct.App.1985) (reversing the defendant's conviction for negligent arson where he had

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been charged only with malicious and willful arson, and negligent arson was not a lesser-included offense); See Rule 5-611(D) NMRA (providing that the jury can find a defendant guilty of an offense necessarily included in the crime charged if instructed); State v. Hamilton, 107 N.M. 186, 189, 754 P.2d 857, 860 (Ct.App.1988).

{9} A defendant is considered to be on notice to defend against uncharged lesser-included offenses. A crime is considered a lesser-included offense when, under either the statutory elements or the facts alleged in the charging documents and supported by the evidence, the defendant could not have committed the greater offense without also committing the lesser offense. See State v. Meadors, 121 N.M. 38, 42-43, 908 P.2d 731, 735-36 (1995); State v. Collins, 2005-NMCA-044, ¶¶ 8-10, 137...