State v. Kriesel, 082319 NMCA, A-1-CA-35224

Docket Nº:A-1-CA-35224
Opinion Judge:KRISTINA BOGARDUS, Judge.
Party Name:STATE OF NEW MEXICO, Plaintiff-Appellee, v. ZACHARY KRIESEL, Defendant-Appellant.
Attorney:Hector H. Balderas, Attorney General Santa Fe, NM Walter Hart, Assistant Attorney General Albuquerque, NM for Appellee The Law Office of Scott M. Davidson, Ph. D., Esq. Scott M. Davidson Albuquerque, NM for Appellant
Judge Panel:WE CONCUR: J. MILES HANISEE, Judge, BRIANA H. ZAMORA, Judge.
Case Date:August 23, 2019
Court:Court of Appeals of New Mexico
 
FREE EXCERPT

STATE OF NEW MEXICO, Plaintiff-Appellee,

v.

ZACHARY KRIESEL, Defendant-Appellant.

No. A-1-CA-35224

Court of Appeals of New Mexico

August 23, 2019

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.

APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY Louis P. McDonald, District Judge.

Hector H. Balderas, Attorney General Santa Fe, NM Walter Hart, Assistant Attorney General Albuquerque, NM for Appellee

The Law Office of Scott M. Davidson, Ph. D., Esq. Scott M. Davidson Albuquerque, NM for Appellant

MEMORANDUM OPINION

KRISTINA BOGARDUS, Judge.

{¶1} Defendant Zachary Kriesel appeals his conviction for child abuse resulting in great bodily harm. Defendant challenges (1) the child abuse jury instruction used at trial; (2) the sufficiency of the evidence supporting the conviction; (3) the admission of medical testimony he characterizes as irrelevant; and (4) the trial, generally, as leading to a wrongful conviction because of cumulative error. Concluding that there was no error as Defendant contends, we affirm.

BACKGROUND

{¶2} The following facts are taken from testimony at the second trial1 of this matter. At the time of the incidents leading to Defendant's arrest, he was living in an apartment with his fiancée, Ashley, and her two children, Andree, about nineteen months old, and Areana, four years old. Areana was small for her age-not much bigger than Andree, according to Ashley. The four started living together in March 2011, about three months after Defendant and Ashley began their relationship.

{¶3} On the weekend of July 30 and 31, 2011, Andree was staying with Ashley's mother. During that time, Andree came down with a cold accompanied by a fever. Ashley started a new job that Monday, August 1. Defendant watched the children while she was away; it was the first time he was alone with them for a full day. When Ashley came home from work that afternoon, she decided to take Andree to the emergency room because of his fever. There, a doctor examined Andree, including taking his temperature, checking his vital signs, and checking his belly. Ashley was present during the examination and testified that there was nothing unusual about Andree's body or skin; specifically, she testified that he had no bruises. The doctor determined that Andree needed Motrin and a popsicle. Ashley then took Andree home, where he slept and, according to Ashley, was "fine."

{¶4} On Tuesday, August 2, Ashley went to work and again left the kids in Defendant's care. After work, instead of going directly home, Ashley went shopping with her grandmother and sister. Once home, Ashley checked on Andree, who was asleep in his crib. He was dressed in footed pajamas, fully zipped; Ashley considered his dress unusual, especially given the time of year. That night, at about 2:00 or 3:00 a.m., Andree was "groaning, like he was in pain[, ]" according to Ashley. Ashley checked on him, thinking perhaps his fever had worsened. She adjusted his pacifier, and he went back to sleep.

{¶5} Defendant described what happened that Tuesday while he was caring for the children. Andree started choking while eating macaroni and cheese with hot dogs. Defendant patted him on the back and did compressions on his stomach and managed to dislodge the food. Later, while the kids were playing Ring Around the Rosie on the balcony, Andree fell and hit his head. Afterward, Andree was "playing around throughout the house" and "seemed fine."

{¶6} Ashley went to work on Wednesday, August 3. At one point, she phoned Defendant, who told her that Areana had hit Andree with an Etch-A-Sketch-type toy. When Ashley came home after work, Andree was slumped over on the couch, in blankets, surrounded by stuffed animals, struggling to breathe, not moving, and "throwing up green stuff everywhere." Though Defendant believed it was unnecessary, Ashley sought medical help. She and her sister drove to a pediatric care center while Defendant stayed home with Areana. In the car on the way there, Ashley changed Andree's diaper and noticed bruises all over Andree's body. The doctors at the center examined Andree and then sent them to the hospital in an ambulance. From the hospital, Ashley relayed to Defendant that Andree had forty-five bruises all over his body, "all brand new." Andree underwent emergency surgery for...

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