State v. Tsosie

Decision Date18 October 2011
Docket NumberNo. 30,070.,30,070.
Citation266 P.3d 34,150 N.M. 754,2011 -NMCA- 115
PartiesSTATE of New Mexico, Plaintiff–Appellee, v. Garrell Ray TSOSIE, Defendant–Appellant.
CourtCourt of Appeals of New Mexico

150 N.M. 754
2011 -NMCA- 115
266 P.3d 34

STATE of New Mexico, Plaintiff–Appellee,
v.
Garrell Ray TSOSIE, Defendant–Appellant.

No. 30,070.

Court of Appeals of New Mexico.

Aug. 23, 2011.Certiorari Denied, Oct. 18, 2011, No. 33,227.


[266 P.3d 35]

Gary K. King, Attorney General, Andrew S. Montgomery, Assistant Attorney General, Santa Fe, NM, for Appellee.

Law Offices of Nancy L. Simmons, P.C. Nancy L. Simmons, Albuquerque, NM, for Appellant.

OPINION
GARCIA, Judge.

{1} Defendant Garrell Tsosie appeals the district court's order for conditional discharge and supervised probation following his plea to one count of battery upon a health care worker, contrary to NMSA 1978, Section 30–3–9.2(E) (2006). The State alleged that Tsosie struck Alan Albo, an employee of the Four Winds Recovery Center, Inc. in Farmington, New Mexico (Four Winds). Tsosie filed a motion to dismiss, arguing that

[266 P.3d 36]

the charges lacked a legally sufficient basis because Albo was not a health care worker employed at a health facility as contemplated by Section 30–3–9.2(A)(1) and (2). The district court denied Tsosie's motion, concluding that the Four Winds Protective Care Unit (the PCU) constitutes a health facility and that Albo was both employed there and engaged in the performance of the duties of a health care worker at the time of the alleged battery. Tsosie subsequently entered a conditional guilty plea and reserved the right to appeal the district court's denial of his motion to dismiss.

{2} Tsosie raises three issues on appeal: (1) whether the New Mexico Detoxification Reform Act (the DRA), NMSA 1978, §§ 43–2–1.1 to –23 (1949, as amended through 2005), precludes the State from prosecuting Tsosie for battery upon a health care worker; (2) whether Albo met the definition of a health care worker employed by a health facility as contemplated by Section 30–3–9.2(A)(1) and (2), thereby precluding prosecution under Section 30–3–9.2(E); and (3) whether Section 30–3–9.2(A) and (E) are unconstitutionally vague and overbroad. We hold that (1) the DRA does not preclude prosecution of Tsosie for battery upon a health care worker; (2) Albo was a health care worker employed by a health facility at the time of the alleged battery; and (3) Section 30–3–9.2(A) and (E) are not unconstitutionally vague or overbroad. As a result, we affirm the district court's denial of Tsosie's motion to dismiss.

FACTUAL AND PROCEDURAL HISTORY

{3} On August 3, 2009, law enforcement officers brought Tsosie to the PCU for the purposes of protective custody and detoxification, pursuant to Section 43–2–8(A)(7) of the DRA. Section 43–2–8(A)(7) provides that an intoxicated person may be committed to a treatment facility for protective custody if there is probable cause to believe that the person being committed is incapacitated by alcohol or drugs.

{4} When Tsosie arrived at the PCU, Albo was on duty and checked his vital signs and admitted him to the PCU. Approximately ten minutes later, Albo served Tsosie a cup of soup instead of the tray of food that earlier arrivals had received since the meal count had already been completed for the evening. Tsosie became upset and began to throw other clients' trays on the ground. When Albo attempted to restrain him, Tsosie grabbed Albo's neck and injured him. Albo then punched Tsosie in the face. Tsosie had not yet received a formal assessment at the time of the incident because he was still intoxicated, and formal assessments do not occur until clients have been at the PCU for twenty-four hours and are no longer under the influence of alcohol or drugs.

{5} Tsosie moved to dismiss the charge of battery upon a health care worker on the grounds that (1) the DRA does not allow prosecution for batteries committed while a person was under the influence of alcohol; (2) Albo was not a health care worker at a health facility as defined by Section 30–3–9.2(A)(1) and (2); and (3) Section 30–3–9.2(A) and (E) are unconstitutionally vague and overbroad. Tsosie contended that dismissal was appropriate because the undisputed facts did not provide a legally sufficient basis for the charges. The State filed a response to all three contentions raised in Tsosie's motion to dismiss.

{6} At the hearing on the motion to dismiss, the district court clarified that it was deciding as a matter of law whether Albo was a health care worker employed by a health facility based upon the undisputed facts regarding the facility and the nature of Albo's employment. Accordingly, this question of law was appropriate for disposition in a motion to dismiss. See State v. Johnson, 2009–NMSC–049, ¶ 4, 147 N.M. 177, 218 P.3d 863 (concluding that where the facts were undisputed, it was appropriate for the district court to determine as a matter of law whether security guards were “school employees” as envisioned in a statute prohibiting battery upon school personnel upon a motion to dismiss).

{7} The record reflects that the following undisputed facts were heard by the district court at the hearing on the motion to dismiss. Four Winds is licensed by the New Mexico Department of Health and Safety (the Department) as an adult residential care facility,

[266 P.3d 37]

and the PCU does not hold a separate license. The PCU is one of several buildings at Four Winds, which also includes an administrative building, a treatment facility, and a long-term treatment facility. The PCU is under the same management as the rest of Four Winds, and the PCU does not receive any separate funding.

{8} When clients arrive at Four Winds, they are initially admitted to the PCU if they are intoxicated or test positive for any drug at the time of their arrival. Clients are not permitted to leave the PCU for at least twenty-four hours and usually remain in protective custody for seventy-two hours. At that point, they may choose to remain at the PCU for up to twelve days before they are either released or moved to another Four Winds facility for further treatment.

{9} Employees such as Albo are given the title of Counselor Aides. When clients arrive at the PCU, Counselor Aides check clients' vital signs, perform various laboratory testing, question clients regarding their medical history, dispense meals, and provide care for clients. After clients are admitted to the PCU, Counselor Aides continue checking the clients' vital signs approximately every two hours, including temperature, respiration, blood pressure, and heart rate. Counselor Aides also monitor the blood sugar of clients with diabetes. As soon as PCU clients are sober enough to interact with the staff, they also begin receiving substance abuse treatment. Treatment may include talking to clients about their drinking behavior and its consequences, prescribing and dispensing medication, and completing behavioral therapy. After clients have been at the PCU for twenty-four hours, formal assessments are completed, and treatment plans are developed. If clients wish to be referred to long-term treatment, then additional assessments must be completed.

{10} Counselor Aides receive special training and become certified medical technicians. They are trained to take vital signs and identify issues associated with detoxification, and they are also instructed regarding the past medical history of specific clients. Counselor Aides are required to have current CPR and first aid certification. Although Albo testified that he had not yet received his certification as a medical technician at the time of the alleged incident, he had prior medical experience, was trained in how to use the equipment, and had also completed his training with Four Winds. Once certified, Counselor Aides at the PCU are permitted to dispense prescription medication. One trained nurse on staff also serves the Four Winds facility, including the PCU. Finally, Four Winds employs a physician who is on call twenty-four hours per day and visits the facility weekly.

{11} The district court denied Tsosie's motion to dismiss, concluding that Four Winds was a health facility as defined by Section 30–3–9.2(A)(1), that Albo was employed at Four Winds, and that Albo was engaged in the performance of the duties of a health care worker at the time of the alleged battery. Tsosie subsequently entered a conditional guilty plea, reserving his right to appeal the district court's denial of his motion to dismiss. We must now review the district court's denial of Tsosie's motion to dismiss.

DISCUSSIONThe DRA Does Not Preclude Prosecution of Tsosie for Battery Upon a Health Care Worker

{12} Tsosie argues that because he was in protective custody due to intoxication at the time of the incident, the DRA precludes his prosecution for battery upon a health care worker. Specifically, he contends that because the DRA is more specific than the battery upon a health care worker statute, the DRA controls. Tsosie reasons that the broader criminal statute prohibiting battery upon a health care worker cannot impinge upon the specific protections the DRA affords to intoxicated persons and that the criminal statute must yield to the DRA in order to achieve a harmonious interpretation.

{13} The issue of whether the DRA precludes prosecution of intoxicated persons such as Tsosie for battery upon a health care worker is a question of statutory interpretation, which this Court reviews de novo. See State v. Smith, 2004–NMSC–032, ¶ 8, 136 N.M. 372, 98 P.3d 1022. “Our ultimate goal in statutory construction is to ascertain and

[266 P.3d 38]

give effect to the intent of the Legislature.” Id. (internal quotation marks and citation omitted). We determine legislative intent by “first look[ing] at the words chosen by the Legislature and the plain meaning of those words.” State v. Hubble, 2009–NMSC–014, ¶ 10, 146 N.M. 70, 206 P.3d 579. “[W]hen a statute contains language which is clear and unambiguous, we must give effect to that language and refrain from further statutory interpretation.” State v. Rivera, 2004–NMSC–001, ¶ 10, 134...

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