State v. Hertzog, A-1-CA-37331

• Citation: 464 P.3d 1090
• Case Date: March 11, 2020
• Court: Court of Appeals of New Mexico

464 P.3d 1090

STATE of New Mexico, Plaintiff-Appellee,
v.
Nathaniel HERTZOG a/k/a a/k/a Nathaniel V. Hertzog a/k/a Nathaniel Vince Hertzog a/k/a Nathanial Hertzog a/k/a Jeffrey Hertzog a/k/a Jeffery Hertzog, Defendant-Appellant.

No. A-1-CA-37331

Court of Appeals of New Mexico.

Filing Date: March 11, 2020

Hector H. Balderas, Attorney General, Santa Fe, NM, John Woykovsky, Assistant Attorney General, Albuquerque, NM, for Appellee

Mark A. Keller Law Office, Terri Keller, Albuquerque, NM, for Appellant

OPINION

HANISEE, Chief Judge.

{1} Nathanial Hertzog (Defendant) appeals his conviction for leaving the scene of an accident (great bodily harm or death) in the fourth degree, contrary to NMSA 1978, Section 66-7-201(B) (1989). On appeal, Defendant argues (1) the district court erred in failing to properly instruct the jury regarding the definition of "accident"; and (2) the State presented insufficient evidence to support Defendant's conviction. We affirm.

BACKGROUND

{2} On the evening of September 12, 2015, Defendant and his girlfriend, Stephanie Frost (Victim), visited the home of their friends, Steve and Samantha Rogers. Over the course of the visit (approximately two and a half hours), Defendant had a "couple of beers," and Victim had five or six shots of hard liquor. Defendant and Victim then left the Rogers’ home in seemingly good spirits with Defendant driving his Chevy Avalanche truck.

{3} During the drive an argument erupted between Defendant and Victim. Victim punched Defendant in the face and then jumped out of the moving truck near Lomas and Wyoming Boulevards. The truck was traveling at approximately forty miles per hour at the time. Defendant braked momentarily following the event, and although he was aware that Victim had jumped out of the truck, he did not stop at or near the scene to investigate Victim's condition, report the incident, provide identification, or render assistance. According to Defendant, he continued driving and turned around at the next intersection, but as he drove past the area where Victim had jumped out, he believed he saw her sitting up on the sidewalk with people around her. Instead of stopping, Defendant departed the area. Defendant then called Steve to ask that he pick up Victim, explaining that she "freaked out[,]" "started punching [Defendant]," "jumped out of the truck[,]" and "was [now] sitting up ... on the curb." Steve told Defendant, "Don't worry about it." He and Samantha would pick Victim up and "give her a ride home."

{4} When Steve and Samantha arrived at the scene about ten minutes after Defendant's call, there were multiple police officers at the scene, and there was a blanket over Victim. Based on witness testimony, it came to light that when Victim jumped out of Defendant's truck, she fell to the ground, and the truck's rear passenger tire ran over her head, crushing her skull and killing her instantly, after which her body rolled toward the curb in the far right lane. After the incident, Defendant told the investigating officer that he did not know that he had run over Victim and did not learn that Victim had died until the following day.

{5} In June 2016 Defendant was charged with knowingly leaving the scene of an accident resulting in great bodily harm or death, contrary to Section 66-7-201(A), (C), and alternatively, the lesser charge of leaving the scene of an accident resulting in great bodily harm or death, contrary to Section 66-7-201(A), (B). At trial, a motorist who witnessed the entire incident from thirty yards away testified that Defendant appeared to be driving the speed limit of forty miles per hour and did not exhibit any signs of unusual driving or swerving. Thereafter, the investigating officer testified that he did not have any evidence that would contradict

464 P.3d 1093

the motorist-witness's testimony regarding Defendant's driving or his speed and that Defendant's statements were consistent with information from other sources. The investigating officer also testified that Defendant told him that, on previous occasions, Victim had jumped out of the vehicle abruptly, but only when the vehicle was stopped, and Defendant's attempts to speak with Victim on those occasions "didn't go well."

{6} The medical examiner thereafter testified that he determined the cause of Victim's death was a blunt head injury, but he was unable to determine whether the manner of death was an accident, homicide, or suicide. An expert in accident reconstruction testified that it was unusual that Victim's body fell underneath Defendant's vehicle, but not unusual that Defendant may not have felt a noticeable vibration when his vehicle went over Victim's body considering he drove a 5,400 pound truck and there are asphalt and concrete cracks on Lomas Boulevard. The expert further testified that any driver may have attributed such vibration to normal driving conditions. However, the expert also admitted that it was more likely than not that an individual who jumps out of a moving vehicle would be injured, but that the extent of the injury would depend on how the individual lands. Following a three-day trial, the jury convicted Defendant of the lesser charge of leaving the scene of an accident resulting in great bodily harm or death, a fourth degree felony, and Defendant was sentenced to a term of incarceration of eighteen months, of which nine months were suspended, for a total incarceration term of nine months. Defendant appeals from his conviction.

DISCUSSION

I. The District Court Did Not Err in Its Instruction Regarding Leaving the Scene of an Accident

{7} Defendant's primary argument on appeal is that the given jury instruction for leaving the scene of an accident was improper because it failed to define what constitutes an "accident." The parties stipulated that a conviction for leaving the scene of an accident requires, as a threshold matter, that Defendant knew he was involved in an accident. Defendant contends an accident is limited to circumstances in which a driver is aware that his or her vehicle collided with or struck another vehicle, person, stationary object, or animal, and that a definitional instruction was necessary to ensure that the jury understood such. Because we conclude that the term accident encompasses a circumstance where a passenger jumps from a moving vehicle, we disagree.

{8} Section 66-7-201(A) provides:

The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible, but shall then immediately return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of [NMSA 1978,] Section 66-7-203 [ (1978) ].¹

(Emphasis added.) Defendant was convicted of violating Subsection (B) of Section 66-7-201, which makes it a fourth degree felony to fail to stop or to comply with the requirements of Section 66-7-203, "where the accident results in great bodily harm or death." Section 66-7-201(B).

{9} Because there are no uniform jury instructions for the crimes that Section 66-7-201 defines, the State and Defendant proposed competing instructions, and ultimately, the district court gave the following instruction for the offense for which Defendant was convicted:

1. [D]efendant was the driver of a motor vehicle involved in an accident which resulted in the death of [Victim];

464 P.3d 1094

2. [D]efendant knew that there was an accident;

3. [D]efendant knowingly failed to stop his vehicle at the scene of the accident or as close as possible without obstructing traffic more than necessary, [and] knowingly failed to comply with the requirements of ... Section 66-7-203[.]²

{10} Defendant's proposed instructions were materially the same except for the second element: instead of stating, "[D]efendant knew there was an accident[,]" the proposed instructions attempted to define what constituted the accident, stating, "[D]efendant knowingly collided with or otherwise injured another person/or [D]efendant knew that there was an accident that occurred involving his car and [Victim]" and "the accident resulted in great bodily harm or death to [Victim]." After lengthy discussion regarding the statute and the appropriate jury instruction, the district court declined to include Defendant's proposed language.

{11} Since the issue was preserved, we review the jury instructions for reversible error. See State v. Benally , 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 ("The standard of review we apply to jury instructions depends on whether the issue has been preserved. If the error has been preserved we review...