State v. Schoonmaker

• Decision Date: 10 September 2004
• Docket Number: No. 23,927.,23,927.
• Citation: 105 P.3d 302,136 N.M. 749
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Jake SCHOONMAKER, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

105 P.3d 302

136 N.M. 749

STATE of New Mexico, Plaintiff-Appellee, v. Jake SCHOONMAKER, Defendant-Appellant.

No. 23,927.

Court of Appeals of New Mexico.

September 10, 2004.

Certiorari Granted January 21, 2005.

Patricia A. Madrid, Attorney General, James O. Bell, Assistant Attorney General, Santa Fe, NM, for Appellee.

John B. Bigelow, Chief Public Defender, Steven J. Potter, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Certiorari Granted, No. 28,954, January 21, 2005.

OPINION

BUSTAMANTE, Judge.

{1} Defendant appeals his conviction for Child Abuse, NMSA 1978, § 30-6-1(D)(1), (2) (2001), and sentencing as a serious violent offense pursuant to NMSA 1978, § 33-2-34(L)(4)(n) (2004). The issues raised are whether: (1) the jury was properly instructed on negligent child abuse, (2) an acquittal on intentional child abuse and subsequent prosecution for negligent abuse violates double jeopardy, (3) character evidence was improperly excluded, (4) there is sufficient evidence for the conviction, and (5) the district court's findings support its determination that Defendant's conviction is a serious violent offense. We affirm.

FACTS AND PROCEEDINGS

{2} Defendant was indicted on August 9, 2000, for intentional child abuse resulting in great bodily harm, or in the alternative, negligent child abuse resulting in great bodily harm. At the first trial, the jury acquitted Defendant of charges relating to intentional child abuse, but hung on whether he committed negligent abuse. An order declaring a mistrial was entered on March 20, 2002. On September 17, 2002, Defendant was retried on one count of negligent child abuse. Defendant was convicted after a five-day jury trial. The testimony elicited at trial supports the following facts.

{3} On June 20, 2001, "DT" was delivered five weeks premature. According to the baby's treating physician, Dr. Vigil, DT was released from the hospital on June 27 and examined by him on July 5, 19, and 21, 2000. Other than a mild case of bronchitis, Dr. Vigil observed DT to be a normal and healthy newborn.

{4} During this period, DT's mother (Mother) dated Defendant, and testified that she usually stayed at his home a couple of nights a week. Mother testified that she and DT stayed with Defendant on July 23 and 24. At 3:20 p.m. on July 24, 2000, Mother left DT alone with Defendant at his home for the first time. She had arranged for Defendant to take care of DT so that she could go to work. Defendant agreed to take care of DT for about an hour and a half until the baby's grandmother got off work and could pick him up. According to Mother, she changed and fed DT before leaving, then laid him on the sofa with his back against the sofa. She testified that DT was normal and healthy, up to and including July 23 through July 24 at 3:20 p.m.

{5} Two hours later, at 5:30 p.m., Defendant and the baby appeared at DT's great-grandmother's house. Defendant told DT's great-grandmother that DT had rolled off the sofa and that there was a problem. She saw that DT had vomited and while cleaning him, noticed he was very pale, limp, and "just staring." After making a brief call to her daughter for advice, she took DT to a nearby urgent care clinic where he was examined and taken to UNM Hospital via ambulance.

{6} Medical tests revealed that DT had a severe subdural hematoma, retinal hemorrhages, and brain injury resulting in total blindness. The State's experts on shaken baby syndrome, Dr. Campbell and Dr. Wood, and two treating physicians testified that DT's injuries were diagnostic of major head trauma, resulting from a high-speed car crash or a fall from two or three stories, or abusive head trauma, known as "shaken baby syndrome" In their opinions, however, the injuries were consistent with shaken baby syndrome resulting from violently shaking the baby. Dr. Campbell explained that DT had no external injuries indicative of an impact-type injury, and that his injuries were consistent with shaken baby syndrome and inconsistent with falling off a couch or shaking a baby to arouse it, even in a panic. She also opined that the injury was inflicted "very shortly [before DT became] symptomatic."

{7} Defendant, on the other hand, repeatedly told family members and police that DT had fallen from the couch. Over time, his story changed: he claimed that he had a car accident on the way over to the great-grandmother's house; he also said that he shook the car seat to keep DT awake. Although Defendant's mother denied it at trial, her prior testimony was that Defendant admitted shaking DT to revive the baby after he fell off the sofa. While he denied its implications, the State also produced a letter from Defendant to Mother admitting, "I shook [DT]."

{8} The district court sentenced Defendant to eighteen years imprisonment, and denied the State's request for aggravation but found the offense qualified as a serious violent offense, pursuant to Section 33-2-34(L)(4)(n). Defendant appeals his conviction from the second trial and the status of his conviction as a serious violent offense.

Jury Instructions on Negligent Child Abuse

{9} At the second trial, the jury was instructed on negligent child abuse:

INSTRUCTION No. 3

For you to find Jake Schoonmaker guilty of Child Abuse resulting in Great Bodily Harm, 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. Jake Schoonmaker caused [DT] to be tortured or cruelly punished [DT];

2. Jake Schoonmaker acted with reckless disregard and without justification. To find that Jake Schoonmaker acted with reckless disregard, you must find that Jake Schoonmaker knew or should have known his conduct created a substantial and foreseeable risk, he disregarded that risk and he was wholly indifferent to the consequences of the conduct and to the welfare and safety of [DT];

3. Jake Schoonmaker's actions or failure to act resulted in great bodily harm to [DT];

4. [DT] was under the age of 18;

5. This happened in New Mexico on or about the 24th day of July, 2000.

INSTRUCTION No. 4

For you to find Jake Schoonmaker guilty of Child Abuse resulting in Great Bodily Harm, as charged in the Alternative of Count 1, the State must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:

1. Jake Schoonmaker caused [DT] to be placed in a situation which endangered the life or health of [DT];

2. Jake Schoonmaker acted with reckless disregard and without justification. To find that Jake Schoonmaker acted with reckless disregard, you must find that Jake Schoonmaker knew or should have known his conduct created a substantial and foreseeable risk, he disregarded that risk and he was wholly indifferent to the consequences of his conduct and to the welfare and safety of [DT];

3. Jake Schoonmaker's actions or failure to act resulted in great bodily harm to [DT];

4. [DT] was under the age of 18;

5. This happened in New Mexico on or about the 24th day of July, 2000.

{10} Defendant presents two basic arguments. As best we can tell, his first argument is that, by omitting the terms "negligently and without justification," in paragraph one, after "Schoonmaker" and before "caused," the jury was allowed to convict Defendant under an improper standard. This omission, together with the use of the language "knew or should have known," a term associated with a civil negligence standard, and the omission of "willful or wanton," terms associated with reckless conduct, according to Defendant, confused and misdirected the jury by failing to apprise the jury that they were to consider Defendant's guilt or innocence under a criminal negligence standard. Defendant also seems to say that the omission leaves the instructions ambiguous because they mix objective criteria, that he knew or should have known of the risk, with a subjective state of mind, that he disregarded the risk and was wholly indifferent to the consequences of his conduct. In short, Defendant asks how can a person who is unaware of a risk, disregard it? Defendant suggests that the jury might have improperly convicted him on a lesser civil negligence standard for extreme carelessness or mere inadvertence.

{11} This leads to Defendant's second objection, which is that the jury should have been instructed that the State has the burden to prove Defendant had a subjective awareness of the risk of harm. Defendant argues that an objective standard allows the jury to presume that he had a subjective intent to disregard the risk and unconstitutionally shifted the burden to him to rebut the presumption.

{12} "The propriety of jury instructions given or denied is a mixed question of law and fact," which we review de novo. State v. Magby, 1998-NMSC-042, ¶ 8, 126 N.M. 361, 969 P.2d 965 (internal quotation marks and citation omitted) overruled on other grounds by State v. Mascarenas, 2000-NMSC-017, ¶ 27, 129 N.M. 230, 4 P.3d 1221

. When reviewing for error, we determine "whether `a reasonable juror would have been confused or misdirected' by the jury instruction." State v. Cunningham, 2000-NMSC-009, ¶ 14, 128 N.M. 711, 998 P.2d 176 (quoting State v. Parish, 118 N.M. 39, 42, 878 P.2d 988, 991 (1994)). To preserve an issue for appeal, a defendant must make a timely objection that apprises the trial court of the specific nature of the claimed error and invokes an intelligent ruling thereon. State v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280.

{13} The record reveals that near the end of the second trial, the State requested, and the district court agreed, to delete the terms "negligently and without justification," from the tendered jury instructions to be consistent with the standard form of UJI 14-602 NMRA. Defense counsel objected to the omission and proposed an instruction, which instructed that if the jury found Defendant intentionally and purposefully shook the baby, they should contact the district court...