State v. Lukens

• Decision Date: 01 July 2013
• Docket Number: NO. 30,819,30,819
• Citation: State v. Lukens, NO. 30,819 (N.M. App. Jul 01, 2013)
• Parties: STATE OF NEW MEXICO Plaintiff-Appellee, v. DAVID LUKENS, JR., Defendant-Appellant.
• Court: Court of Appeals of New Mexico

STATE OF NEW MEXICO Plaintiff-Appellee, v. DAVID LUKENS, JR., Defendant-Appellant.

NO. 30,819

COURT OF APPEALS OF THE STATE OF NEW MEXICO

Dated: July 1, 2013

This memorandum opinion was not selected for publication in the New Mexico Appellate 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 BERNALILLO COUNTY Kenneth H. Martinez, District Judge

Gary K. King, Attorney General

Margaret E. McLean, Assistant Attorney General

Joel Jacobsen, Assistant Attorney General

Santa Fe, NM

for Appellee

Trace L. Rabern

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

GARCIA, Judge.

{1} Defendant appeals from a jury conviction of negligently caused child abuseresulting in great bodily harm after his three-month-old son, Heath Lukens, was found to have multiple healed fractures. The jury returned a split verdict, finding Defendant guilty of causing only the fractures to Heath's ribs. Defendant raises eight issues on appeal, challenging the evidence admitted against him at trial, the propriety of the jury instructions, and the proportionality of his punishment under the equal protection clause of the New Mexico constitution.

BACKGROUND

{2} Heath was born nine weeks prematurely on August 14, 2005. When he was born, Heath was unable to breathe on his own and was airlifted to a hospital in Albuquerque, where he spent his first few days in an incubator. When it became clear that Heath would have an extended stay at the hospital, Defendant and Heath's mother (Mother) moved from Farmington to Albuquerque. Defendant took a job as a car salesman at an Albuquerque car dealership.

{3} After his birth, Defendant seemed unable to form a bond with Heath and expressed little or no affection towards him. Mother believed that Defendant sometimes handled Heath very roughly. She was worried that he did not know how to properly care for an infant, and did not want Defendant to care for Heath all by himself. Nonetheless, there were times when Defendant cared for Heath alone.

{4} Mother needed surgery in late November 2005. Defendant and Defendant's parents watched Heath while Mother recovered. When Mother was reunited withHeath, she said that "[i]t was like I was handed a different baby back." A few days later, Mother sought medical attention for Heath. Subsequent x-rays revealed "a pattern of injury that includes several fractures. Some were new and some were old." In total, Heath suffered fifteen fractures. Defendant was charged with causing these injuries to Heath.

{5} Trial took place over a two week period of time. The main testimony at trial concerned the competing expert testimony as to the cause and source of Heath's multiple healing fractures. Defendant acknowledged having used excessive force with Heath at times, but argued that the fractures were a result of bone disease due to Heath's status as a premature baby. The State argued that the fractures were intentionally or negligently caused by Defendant. The jury returned a split verdict, finding Defendant guilty of causing the fractures to Heath's ribs but not to his arms or legs. Defendant timely filed an appeal with this Court.

{6} We note that in Defendant's briefs to this Court, he refers to some portions of the record proper, some general citations to the district court proceedings, and certain specific citations to the proceedings below, but fails to provide the required citations to the record. It is well established that this Court will not search the record to find support for Defendant's contentions. See State v. Rojo, 1999-NMSC-001, ¶ 44, 126 N.M. 438, 971 P.2d 829 (pointing out that an appellate court will not search the record to find whether an issue was preserved); Ross v. City of Las Cruces, 2010-NMCA-015, ¶ 18, 148 N.M. 81, 229 P.3d 1253 ("Where a party fails to cite any portion of the record to support its factual allegations, the Court need not consider its argument on appeal."). The State's answer brief provides more specific citations to the record, and Defendant did not submit a reply brief or otherwise challenge these citations. Where a defendant does not provide appropriate citations to the record but argues that the State's rendition of the facts is incorrect, we note that this Court indulges every presumption in favor of the "correctness and regularity" of the district court's decision in favor of the prevailing party. Rojo, 1999-NMSC-001, ¶ 53 (internal quotation marks and citation omitted).

DISCUSSION

A. Admissibility of Evidence

1. Standard of Review

{7} We review the district court's admission or exclusion of evidence for an abuse of discretion and we will not disturb its evidentiary ruling absent a clear abuse of that discretion. State v. Stanley, 2001-NMSC-037, ¶ 5, 131 N.M. 368, 37 P.3d 85. "An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case. We cannot say the [district] court abused its discretion by its ruling unless we can characterize it as clearly untenable or not justified by reason." Id. (internal quotation marks and citation omitted).

2. Expert Testimony

{8} Defendant argues that the district court improperly qualified Ms. Dentz, Dr. Williamson, and Dr. Coleman as expert witnesses for the State because "there is no scientific method involved in 'diagnosing' child abuse." Defendant further argues that the district court erred in allowing these witnesses to provide "ultimate" opinions regarding the cause of injuries suffered by Heath. Rule 11-702 NMRA requires three prerequisites for admission of expert testimony: (1) the expert must be qualified; (2) the scientific evidence must assist the trier of fact; and (3) the expert may only testify to "scientific, technical or other specialized knowledge." State v. Alberico, 116 N.M. 156, 166, 861 P.2d 192, 202 (1993) (internal quotation marks and citation omitted).

{9} Defendant has summarily argued that it was error to qualify Ms. Dentz, Dr. Williamson, and Dr. Coleman as expert witnesses because the areas of "child abuse," "child abuse pediatrics," and "child abuse and neglect" are not valid areas of expertise. Defendant has failed to elaborate or develop this argument regarding why the qualifications and expertise of these witnesses were insufficient to assist the jury in determining the causes of Heath's injuries, or why it was improper for the district court to qualify these witnesses as experts in the field of child abuse. This Court does not review unclear or undeveloped arguments. See State v. Fuentes, 2010-NMCA-027, ¶ 29, 147 N.M. 761, 228 P.3d 1181. As such, we will defer to the evidentiary ruling of the district court and address this argument no further. State v. Woodward, 121 N.M. 1, 4, 908 P.2d 231, 234 (1995).

{10} Relying on Alberico, 116 N.M. at 176, 861 P.2d at 212, Defendant asserts that all three expert witnesses offered a conclusion on the ultimate issue at trial, thereby usurping the function of the jury. Defendant specifically objects to testimony that Heath's injuries were "diagnostic of child abuse;" "diagnosed as non-accidental trauma;" "nearly certainly caused by child abuse;" and "not caused by accident." We note that Defendant has not provided this Court with any citations to the record for these purported quotations. See Rule 12-213(A)(4) NMRA. However, even if we assume all four quotations are accurate, Defendant's argument has misconstrued Alberico. See State v. Landgraf, 1996-NMCA-024, ¶ 20, 121 N.M. 445, 913 P.2d 252 (acknowledging that our Supreme Court's holding in Alberico recognized "the continuing validity of its prior decisions that expert testimony is admissible even if it touches upon an ultimate issue to be decided by the trier of fact" (internal quotation marks and citation omitted)).

{11} The Alberico Court held that an expert may not testify with regard to the credibility of the complaining witness, may not give testimony on the identity of the perpetrator, and may not provide testimony to show that symptoms or injuries were, in fact, caused by abuse. Alberico, 116 N.M. at 175-77, 861 P.2d at 211-13. However, the Court held that a qualified expert could testify that the symptoms suffered by the alleged victim "are consistent with those suffered by someone who has been sexually abused." Id. at 178, 861 P.2d at 213-14. Thus, Alberico permits aqualified expert to testify, based on experience, that the facts of the case are consistent with a crime. See State v. Wilson, 2011-NMSC-001, ¶¶ 29-38, 149 N.M. 273, 248 P.3d 315 (holding that an expert's opinion that the victim's cause of death was consistent with smothering was admissible), overruled on other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110.

{12} The primary issue before the jury was whether Heath's injuries were caused by non-accidental trauma or by problems associated with his premature birth. During trial, both parties presented expert testimony as to the cause of Heath's injuries to support their respective positions. In compliance with Alberico and other New Mexico cases, none of the expert testimony at issue in this case was about Defendant's identity or credibility. While the experts gave their opinions regarding the cause of the injuries to Heath and whether the injuries were consistent with abuse, no expert testified that, in fact, the injuries were caused by abuse. See Wilson, 2011-NMSC-001, ¶ 38 ("The jury remained the ultimate arbiter of [the expert witness's] credibility, and it was free to reject his opinion and conclude that [the victim's] death was caused by natural causes."); Lee v. Martinez, 2004-NMSC-027, ¶ 16, 136 N.M. 166, 96 P.3d 291 ("Given the capabilities of jurors and the liberal thrust of the rules of evidence,...