State v. Gonzales
| Decision Date | 05 August 2011 |
| Docket Number | No. 28,700.,28,700. |
| Citation | 150 N.M. 494,263 P.3d 271,2011 -NMCA- 081 |
| Parties | STATE of New Mexico, Plaintiff–Appellee,v.Alicia Victoria GONZALES, Defendant–Appellant. |
| Court | Court of Appeals of New Mexico |
OPINION TEXT STARTS HERE
Gary K. King, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, NM, for Appellee.Jane B. Yohalem, Santa Fe, NM, for Appellant.
{1} This case raises an issue of first impression as to whether a case that might otherwise be regarded as vehicular manslaughter is punishable under our child abuse statute simply because the person killed or injured by Defendant's criminal negligence was a child. Here, we distinguish between criminal negligence that endangers the public at large and results in injury or death to a member of the public, who happens to be a child, and criminally negligent conduct that creates a discernable risk of danger to a particular child or particular children. We hold that a discernable risk of danger to a particular child or particular children is required to support a conviction for negligent child abuse by endangerment under NMSA 1978, Section 30–6–1(D)(1) (2004) (amended 2009). We further hold that for a defendant to be criminally liable for child abuse by endangerment, he or she must be aware of a particular danger to the identifiable child or children when engaging in the conduct that creates the risk of harm.
{2} In this case, Defendant contends that the district court erred in failing to grant her motion for dismissal and her motion for directed verdict on the child abuse by endangerment charges on the basis that she was unaware that her conduct posed a particular and foreseeable risk of likely injury to the children injured by her actions. The district court similarly denied Defendant's proposed jury instructions requiring child abuse by endangerment to include an element of awareness. We conclude that the district court erred. Accordingly, we reverse Defendant's convictions for negligent child abuse by endangerment, as she was not proven to be aware of the danger to the particular children who were the victims of her drunk driving.
{3} Defendant argues that the State is barred from retrying her for vehicular homicide and intentional child abuse. We agree and hold that double jeopardy bars retrial of Defendant for vehicular homicide. We remand for vacation of the child abuse convictions and discharge of Defendant and the amendment of the judgment and sentence to reflect those charges on which Defendant's convictions remain unaffected by this Opinion.
{4} Defendant drove on the interstate while severely drunk, sideswiped one car, and ploughed into the rear of another car, in which two minors, Manuel and Deandre, were riding in the back seat. Manuel was pronounced dead at the scene; Deandre received minor injuries. As a result, the grand jury indicted Defendant for two counts of negligent child abuse by endangerment, including one count of endangerment resulting in death.1 Defendant was also charged and convicted of aggravated driving while intoxicated and leaving the scene of an accident. Defendant does not contest those convictions, and they are not a part of this appeal.
{5} Prior to trial, Defendant filed a motion to dismiss the charges of child abuse, arguing that child abuse cannot be charged when the children injured were “not in the vehicle of the accused and the accused [was] not aware of their presence on the roadway.” (Emphasis omitted.) Defendant argued that the State sought to criminalize as child abuse any negligent behavior undertaken on the road when a child might be present in another car without consideration of whether Defendant's conduct specifically put a child at risk. The State did not disagree with this characterization, stating that any conduct undertaken in reckless disregard of the “welfare and safety of everyone on the road” was sufficient to prove child abuse. The State stated:
Criminal negligence does not require a showing that [D]efendant had specific knowledge of her victims. It only requires a reckless disregard of the danger that she is putting her potential victims in.... It was foreseeable that her conduct could endanger the lives of not only adults, but also children. Children are a part of the general public, a more vulnerable part.
{6} During the hearing on the motion to dismiss, the district court inquired of the State why child abuse had not been charged in the alternative with vehicular homicide. Counsel for the State initially did not know, but later stated that its decision to charge Defendant only with child abuse and not vehicular homicide was intentionally undertaken as an exercise of its discretion. The State thus did not pursue vehicular homicide charges at any time.
{7} Following extensive argument by the parties, the district court held as a matter of law that “the current statute as it stands under child abuse does not necessitate or need an awareness factor ... all that's required as far as knowledge is that the defendant knows or should have known that the defendant's conduct created the substantial or foreseeable risk.” The district court further stated its opinion that a “person [can] cause [a child to be placed] or place a child ... in a dangerous situation, life or health, ... and not be aware of it.” The district court denied Defendant's motion, and the case proceeded to trial, resulting in Defendant's convictions and her appeal. The issue continued to be raised by Defendant throughout the trial, including a motion for directed verdict, with identical results.
{8} We review the interpretation of a statute in the context of a motion to dismiss de novo with the primary goal of ascertaining and giving effect to the intent of the Legislature. State v. Smith, 2004–NMSC–032, ¶ 8, 136 N.M. 372, 98 P.3d 1022. Criminal statutes are to be strictly construed. We take care that criminal statutes are not applied beyond their intended scope and are “defined with appropriate definiteness.” State v. Chavez, 2009–NMSC–035, ¶ 10, 146 N.M. 434, 211 P.3d 891 (internal quotation marks and citation omitted); see Smith, 2004–NMSC–032, ¶ 8, 136 N.M. 372, 98 P.3d 1022 ().
{9} Double jeopardy arguments cannot be waived. A defendant may raise such arguments at any time. NMSA 1978, § 30–1–10 (1963); see State v. Jimenez, 2007–NMCA–005, ¶ 11, 141 N.M. 106, 151 P.3d 67; State v. Vaughn, 2005–NMCA–076, ¶ 8, 137 N.M. 674, 114 P.3d 354. When such arguments arise on appeal, we apply a de novo standard of review. Jimenez, 2007–NMCA–005, ¶ 11, 141 N.M. 106, 151 P.3d 67.
III. DISCUSSIONA. The Current Landscape of Child Abuse By Endangerment
{10} Until now, every child abuse by endangerment case in New Mexico pertaining to a defendant's operation of a motor vehicle while intoxicated involved the defendant's knowledge or placement of the children in the vehicle prior to the conduct that constituted the endangerment. See, e.g., State v. Chavez, 2009–NMCA–089, ¶ 14, 146 N.M. 729, 214 P.3d 794 (); State v. Watchman, 2005–NMCA–125, ¶¶ 4–5, 138 N.M. 488, 122 P.3d 855 (); State v. Montoya, 2005–NMCA–078, ¶¶ 2, 4, 137 N.M. 713, 114 P.3d 393 (); State v. Santillanes, 2001–NMSC–018, ¶¶ 2, 38, 130 N.M. 464, 27 P.3d 456 (); State v. Castaneda, 2001–NMCA–052, ¶¶ 19–22, 130 N.M. 679, 30 P.3d 368 ().
{11} Similarly, in State v. Lujan, the defendant was convicted of child abuse when he attacked another car with his own vehicle with prior knowledge that the victim's car was transporting a child. 103 N.M. 667, 669–70, 712 P.2d 13, 15–16 (Ct.App.1985). His awareness of the child's presence within the car prior to his attack was dispositive. Id. In each of the above cases, the child was within the circumstantial ambit of foreseeable risk and likely injury created by the defendant. The defendant's behavior was directed toward the child, and the defendant was or should have been aware of the risk to the child of whose presence he or she knew of at the time.
{12} We have further interpreted Section 30–6–1(D) “to address situations where an accused's conduct exposes a child to a significant risk of harm,” irrespective of whether the child was actually injured. Chavez, 2009–NMSC–035, ¶ 15, 146 N.M. 434, 211 P.3d 891. Nonetheless, there has been no appellate case in New Mexico for endangering a child whose presence was not previously known to the defendant at the time the negligent and dangerous behavior was commenced. Because our appellate courts have not previously determined whether the Legislature intended the child endangerment statute to encompass conduct similar to that in the present case, we turn to the language of the statute for guidance.
B. Criminal Negligence
{13} According to our rules of statutory construction, the statute's plain language “is the primary indicator of legislative intent.” High Ridge Hinkle Joint Venture v. City of Albuquerque, 1998–NMSC–050, ¶ 5, 126 N.M. 413, 970 P.2d 599 (internal quotation marks and citation omitted). In addition, we are to apply the ordinary meaning of the words in the statute unless...
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