State v. Montoya

Decision Date12 March 2015
Docket Number33,967.
PartiesSTATE of New Mexico, Plaintiff–Appellee, v. Nathan MONTOYA, Defendant–Appellant.
CourtNew Mexico Supreme Court

Jorge A. Alvarado, Chief Public Defender, Nicole S. Murray, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Gary K. King, Attorney General, Jacqueline R. Medina, Assistant Attorney General, Santa Fe, NM, for Appellee.


VIGIL, Chief Justice.

{1} This case presents another example of the ongoing confusion created by our child abuse jury instructions. Breandra Pena (Baby Breandra), age seventeen months, died while in the care of Nathan Montoya (Defendant). Defendant was convicted of intentional child abuse resulting in the death of a child under twelve contrary to NMSA 1978, Section 30–6–1(D), (H) (2009) and sentenced to life imprisonment.

{2} In our review of Defendant's conviction on direct appeal, we first hold that the jury instructions used in Defendant's trial accurately instructed the jury of the law and did not constitute reversible error. We determine that, when considered as a whole, the instructions used in this case are distinguishable from those used in previous cases which we have reversed based on erroneous child abuse jury instructions. We also hold that reckless child abuse may, in some cases, be a lesser included offense of intentional child abuse resulting in the death of a child under twelve, and disavow New Mexico cases suggesting otherwise. Accordingly, we determine that when a jury is correctly instructed on both reckless and intentional child abuse resulting in the death of a child under twelve, a step-down instruction is appropriate.

{3} Next, we hold that the admission of a forensic pathologist's expert testimony was not in error and that sufficient evidence was presented to convict Defendant. Finally, we hold that it was abuse of discretion for the district court judge to refuse to consider mitigating the basic sentence of life imprisonment, based on the court's mistaken understanding that the life sentence was mandatory and could not be altered. Defendant's conviction for intentional child abuse is affirmed and the case is remanded to the district court for resentencing with consideration of potential mitigating circumstances.

A. Facts

{4} Baby Breandra was born to Melissa Romero (Mother) and Andrew Pena on September 24, 2009. Mother occasionally asked her cousin, Edwardine Fernandez (Fernandez), Breandra's godmother, and Defendant to look after Baby Breandra. On March 4, 2011, when Baby Breandra was seventeen months old, Fernandez and Defendant picked up Baby Breandra from Mother's home in Albuquerque and took her to their home in Española for the weekend. When Fernandez and Defendant picked up Baby Breandra from Mother, she had no signs of bumps or bruises on her body.

{5} On March 8, 2011, Fernandez was at work by 7:00 a.m. at St. Vincent Hospital in Santa Fe, leaving Defendant at home alone with Baby Breandra. Fernandez was in contact with Defendant regularly throughout the day, about once an hour. At about 9:00 a.m., Defendant's friend Derek Vigil (Vigil) visited Defendant at home. Vigil left around 11:30 a.m. or noon. When Vigil left, he did not see any signs that Baby Breandra was in distress.

{6} Around 1:42 p.m., Defendant called 911 and told the operator that Baby Breandra had been teething, had not been feeling well, had been throwing up, and was not coming back. Defendant reported that Baby Breandra still had a heartbeat. He did not report that the baby had fallen in the bathtub, or that he dropped her, as he later claimed. Paramedics were dispatched in response to a child having difficulty breathing. While en route to the scene, the paramedics received an update that the child had stopped breathing, and a second update that the child had no heartbeat.

{7} The paramedics arrived at Defendant's home at 1:48 p.m. When they arrived, Defendant was standing in the doorway holding Baby Breandra, who was limp, nonresponsive, and pale. The paramedics noted that Baby Breandra had bruising throughout her body, including marks on her chest and belly and a scrape on her nose, and that her ears were red, bruised, and swollen. The paramedics immediately began life saving measures on Baby Breandra, but knew she was dead as soon as they got her on the gurney in the ambulance.

{8} Randy Sanchez, one of the responding paramedics, testified as an expert witness in the field of EMT paramedics. Mr. Sanchez testified that based on her cool, pale skin, he believed Baby Breandra was deceased before Defendant placed the call to 911. In his opinion, the baby's injuries were not consistent with choking. Mr. Sanchez said it was fairly obvious that the baby had sustained traumatic injuries.

{9} Deputy Jason Gallegos of the Rio Arriba County Sheriff's Office testified that he was dispatched to a call regarding an unresponsive baby at Defendant's home. Deputy Gallegos approached Defendant and asked him what happened. Defendant told Deputy Gallegos that he had been watching Baby Breandra and she was teething and grumpy. Defendant said he and Baby Breandra were sitting on the bed, eating cheese and crackers and watching cartoons. Baby Breandra wouldn't stop crying, so Defendant decided to give her a bath. Defendant said that after the bath, he decided to put the baby down for a nap, so he laid her on the bed and gave her a sippy cup of milk. Defendant said Baby Breandra started choking on the milk and she threw up a light brown substance. Defendant said he patted her on the back to try to dislodge whatever the baby was choking on. After speaking to Deputy Gallegos, Defendant cried and paced around the house, asking if the baby was ok.

{10} In her statement to the police, Fernandez said that Defendant called her earlier that day and told her that Baby Breandra was fussy because she was teething. Defendant told Fernandez that he gave Baby Breandra Tylenol

because she was drooling and felt feverish, and he gave her some Orajel. Defendant reported to Fernandez that he suspected the Orajel made Baby Breandra throw up, and he called 911 because she threw up and was choking. At trial, Fernandez recounted that at 12:47 p.m., Defendant had called to tell her that Baby Breandra had fallen in the bathtub and scraped her nose, but otherwise seemed fine. Fernandez said she forgot to tell the police in her statement that Defendant said Baby Breandra had fallen in the tub.

{11} Agent Joey Gallegos interviewed Defendant at the New Mexico State Police Office in Española. Agent Gallegos testified that after he told Defendant that Baby Breandra was dead, Defendant said, “I slapped her. I got her by her ears and she didn't want to keep quiet.” When Agent Gallegos showed Defendant pictures of Baby Breandra's injuries and asked if Defendant had caused them, Defendant responded, “Yeah, that one that she has, yeah. I did spank her and all of that. That's what I'm saying.” Later in his statement to the police, Defendant claimed that the baby fell in the bathtub, and that he accidentally dropped her while running to the living room.

{12} Dr. Clarissa Krinsky, Assistant Professor of Pathology at the University of New Mexico and Medical Investigator at the Office of the Medical Investigator, testified as an expert in forensic pathology. Dr. Krinsky supervised the autopsy of Baby Breandra on March 9, 2011. Dr. Krinsky observed abrasions covering large areas of both sides of the baby's head and contusions on both ears. Dr. Krinsky opined that the injuries to Baby Breandra's ears were intentional, caused by someone grabbing and pulling them, and could not have been caused by the baby herself. Dr. Krinsky saw between forty and fifty bruises on Baby Breandra's back, chest, and abdomen. The baby also had subdural and subarachnoid hemorrhages

on both sides of the brain, indicative of significant head trauma. Dr. Krinsky said these types of injuries were unlikely to be caused by a fall in a bathtub. Dr. Krinsky also found significant internal abdominal injuries, which she characterized as classic intentional injuries found in children who were punched or kicked in the stomach.

{13} Dr. Krinsky said that Baby Breandra's death was the result of multiple blunt force injuries. Dr. Krinsky concluded that the constellation of injuries on Baby Breandra's body was a result of intentional, nonaccidental trauma, and that the manner of death was homicide, which she defined as death at the hands of another.

B. Procedure

{14} Defendant was charged with abuse of a child resulting in the death of Baby Breandra, a child under twelve, caused by knowingly, intentionally, or recklessly,1 and without justifiable cause, endangering, torturing, or cruelly punishing the child contrary to Sections 30–6–1(D)(1) or (2) and (H). Defendant was convicted of intentional child abuse resulting in the death of a child under twelve and sentenced to life in prison. Defendant appealed directly to this Court pursuant to Rule 12–102(A)(1) NMRA and Article VI, Section 2 of the New Mexico Constitution. Further procedural background is provided below as necessary.


{15} Defendant advances numerous arguments on appeal, including: that the jury instructions used at trial were a misstatement of the law and misled the jury, that the pathologist's expert testimony about a “constellation of injuries” on the baby should not have been admitted, that the State failed to present sufficient evidence to support Defendant's conviction, that he received ineffective assistance of counsel, and that the district court's failure to consider potential mitigating circumstances in sentencing Defendant was an abuse of discretion. We address each argument in turn.

A. Jury Instructions

{16} Defendant argues that jury instruction number three erroneously combined the elements of both intentional and reckless child abuse, which Defendant asserts was a misstatement of the law, was confusing to the jury, and constitutes reversible...

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