State v. Mascarenas

Decision Date25 May 2000
Docket NumberNo. 25,577.,25,577.
PartiesSTATE of New Mexico, Plaintiff-Respondent, v. Marcos MASCAREÑAS, Defendant-Petitioner.
CourtNew Mexico Supreme Court

Phyllis H. Subin, Chief Public Defender, Lisabeth L. Occhialino, Assistant Appellate Defender, Santa Fe, for Petitioner.

Patricia A. Madrid, Attorney General, Steven S Suttle, Assistant Attorney General, Santa Fe, for Respondent.


BACA, Justice.

{1} Defendant, Marcos Mascareñas, appeals his conviction and sentence of twelve years imprisonment for negligent child abuse resulting in death, contrary to NMSA 1978, § 30-6-1(C) (1973, as amended through 1989).1 We granted certiorari pursuant to NMSA 1978, § 34-5-14(1972) (outlining the scope of our appellate jurisdiction) to review the Court of Appeals' decision affirming Mascareñas' conviction for child abuse. See also Rule 12-502 NMRA 2000. Mascareñas appeals his conviction on several grounds; 1) fundamental error occurred because the trial court failed to provide the jury with an instruction for negligent child abuse that adequately defined criminal negligence; 2) fundamental error occurred because the jury instructions omitted an essential element requiring that the State prove he acted "without justification"; 3) the child abuse statute is unconstitutionally vague; 4) the trial court committed reversible error by refusing to allow the testimony of his rebuttal expert witness regarding the public's awareness of shaken baby syndrome (SBS); 5) insufficient evidence exists to support the verdict; 6) the trial court improperly admitted evidence of Mascareñas' prior drug use and a prior injury to the child; 7) the State's opening statement and closing argument contained misleading statements about the law and facts not in evidence; 8) his conviction and twelve year sentence, despite lacking criminal intent, amounts to cruel and unusual punishment; and 9) the cumulative effect of the trial court's errors deprived him of his right to a fair trial. Because we reverse Mascareñas' conviction based on the deficiencies in the jury instructions and hold that sufficient evidence exists to support remand, we need not reach his other claims of error.


{2} On October 6, 1996, emergency medical technicians were summoned to render assistance to six-month old Matthew Cisneros, who was suffering from a seizure. Upon arrival, the medical technicians found Matthew unresponsive and displaying signs that his brain was not receiving oxygen. He was transported to the emergency room at Holy Cross Hospital in Taos where tests revealed the likelihood that Matthew had suffered head trauma. The treating physician diagnosed Matthew's injuries as subdural hematoma, cerebral edema, and cardio-pulmonary arrest all of which were consistent with shaken baby syndrome. Matthew later went into complete respiratory and cardiac arrest and was successfully resuscitated. Matthew was transported via helicopter to the Pediatric Intensive Care Unit at University of New Mexico Hospital in Albuquerque. Over the next four days Matthew's neurologic functions deteriorated and brain death was declared on October 10, 1996. Matthew died after he was taken off life support. Mascareñas was subsequently arrested and charged with child abuse resulting in death.

{3} At trial, Mascareñas testified that Matthew was left in his care after Lisa, the child's mother, left for work in the morning. Matthew then became agitated and began crying. Mascareñas testified that he was frustrated that Matthew would not stop crying and admitted that he shook Matthew "hard once." He also testified that he tossed Matthew in the air, took him for a ride in his truck, and fed him in the attempt to calm him down. After returning home, Matthew had a seizure and Mascareñas testified that he and his cousin drove Matthew to Lisa's parents' home a short distance away and then called 911 to summon emergency medical assistance.

{4} During the trial, Matthew's treating doctors, a radiologist, and a pathologist, testified as the State's expert witnesses. They stated that the cause of death was SBS and that Matthew displayed classic SBS symptoms. The radiologist testified that CT scans of Matthew's head indicated that he had suffered two separate injuries, one occurring in the last twelve to eighteen hours, the other, ten to fourteen days earlier. Although the State's expert witnesses testified that it was their opinion that only forceful, repeated shaking could cause the severe injuries associated with SBS, one State expert witness did concede that there was a debate within the medical community as to whether one shake was sufficient to cause the injuries associated with SBS.

{5} Mascareñas based his defense on his lack of knowledge of SBS. He explained that his initial failure to tell family members and medical personnel that he had shaken Matthew was because he did not know that shaking a baby could cause the symptoms Matthew displayed. Medical personnel testified that Mascareñas answered their questions without hesitation. At trial he testified, "I hurt to know that my stupidity and ignorance caused this to my child, to my baby."

{6} Despite his defense, Mascareñas was convicted of negligent child abuse resulting in death and sentenced to twelve years in prison. He now appeals his conviction claiming the jury instructions failed to adequately define the requisite criminal negligence standard. We agree and hold that the failure to adequately define the criminal negligence standard constitutes fundamental error.


{7} Mascareñas did not object to the jury instruction or tender a curative instruction. Because he failed to preserve this error for appeal, we review only for fundamental error. See State v. Sosa, 1997-NMSC-032, ¶ ¶ 23-24, 123 N.M. 564, 943 P.2d 1017 ("Having failed to proffer accurate instructions, object to instructions given, or otherwise preserve the issue for appeal ... we will limit our evaluation to the claim of fundamental error."); Rule 12-216 NMRA 2000 (setting forth preservation requirements). In State v. Clark, we stated, "To the extent alleged violations rise to the level of fundamental error, the question will be reviewed on appeal and, if fundamental error exists, a new trial will be ordered." 108 N.M. 288, 297, 772 P.2d 322, 331 (1989), habeas corpus relief granted on other grounds by, Clark v. Tansy, 118 N.M. 486, 882 P.2d 527 (1994). Fundamental error exists "when guilt is so doubtful that it would shock the judicial conscience to allow the conviction to stand." State v. Baca, 1997-NMSC-045, ¶ 41, 124 N.M. 55, 946 P.2d 1066. In State v. Garcia, 46 N.M. 302, 309, 128 P.2d 459, 462 (1942), this Court observed, "[e]rror that is fundamental must be such error as goes to the foundation or basis of a defendant's rights or must go to the foundation of the case or take from the defendant a right which was essential to his defense and which no court could or ought to permit him to waive."


{8} Mascareñas claims that fundamental error occurred because the trial court failed to provide the jury with an instruction defining criminal negligence. The jury was provided an instruction which tracked the language of UJI 14-602 NMRA 1999.2 The negligent child abuse instruction provided to the jury read:

For you to find Marcos Mascareñas guilty of child abuse resulting in death as charged in Count 1, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. Marcos Mascareñas negligently caused Matthew Cisneros to be placed in a situation which endangered the life or health of Matthew Cisneros or to be cruelly punished.
2. To find that Marcos Mascareñas negligently caused child abuse to occur, you must find that Marcos Mascareñas knew or should have known of the danger involved in forcefully shaking Matthew Cisneros and acted with reckless disregard for the safety or health of Matthew Cisneros.
3. Marcos Mascareñas['] actions resulted in the death of Matthew Cisneros.
4. Matthew Cisneros was under the age of 18.
5. This happened in New Mexico on or about the 6th day of October, 1996.

(emphasis added). Mascareñas argues that this instruction fails to adequately define the requisite culpable mental state for criminal negligence by including language confusing criminal negligence and civil negligence. Specifically, he argues that the use of the term "negligently" in the second element of the jury instruction, juxtaposed with the terms "knew or should have known" and "acted with a reckless disregard" creates the "distinct possibility that the jury understood the applicable negligence standard to criminalize `careless' conduct or perhaps only `extremely careless' conduct." See State v. Magby, 1998-NMSC-042, ¶ 15, 126 N.M. 361, 969 P.2d 965 (noting that neither understanding was correct) (citing State v. Yarborough, 1996-NMSC-068, ¶ 21, 122 N.M. 596, 930 P.2d 131).

{9} Criminal negligence has been defined as including "conduct which is reckless, wanton, or willful." State v. Arias, 115 N.M. 93, 96, 847 P.2d 327, 330 (Ct.App.1993),overruled on other grounds by State v. Abeyta, 1995-NMSC-52, 120 N.M. 233, 242, 901 P.2d 164, 173; see also State v. Harris, 41 N.M. 426, 428, 70 P.2d 757, 757 (1937) (defining criminal negligence as "conduct ... so reckless, wanton, and willful as to show an utter disregard for the safety of [others]"). In contrast, we have defined civil negligence to include conduct "a reasonably prudent person would foresee as involving an unreasonable risk of injury to [himself] [herself] or to another and which such a person, in the exercise of ordinary care, would not do." UJI 13-1601 NMRA 2000. Mascareñas argues that it is impossible to determine if jurors applied the incorrect civil negligence standard typically invoked by the "knew or should have known" language or the proper criminal negligence standard which requires a finding that he acted in reckless...

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