State v. Vasquez, Docket No. 27,304 (N.M. App. 3/2/2010)
| Decision Date | 02 March 2010 |
| Docket Number | Docket No. 27,304. |
| Court | Court of Appeals of New Mexico |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. CECILIA VASQUEZ, Defendant-Appellant. |
Appeal from the District Court of Doña Ana County, Silvia E. Cano-Garcia, District Judge and V. Lee Vesley, Pro-Tem Judge.
Gary K. King, Attorney General Andrea Sassa, Assistant Attorney General Santa Fe, NM, for Appellee.
Hugh W. Dangler, Chief Public Defender Kathleen T. Baldridge, Assistant Appellate Defender Santa Fe, NM, for Appellant.
{1} Defendant was convicted of negligently permitting child abuse resulting in death or great bodily harm, contrary to NMSA 1978, Section 30-6-1(D) (2004) (amended 2005 and 2009), and tampering with evidence, contrary to NMSA 1978, Section 30-22-5 (2003). Defendant appeals her convictions. We conclude that: (1) the jury instruction on negligent child abuse properly incorporated the standard for criminal rather than civil negligence, (2) there was substantial evidence of the requisite mens rea supporting Defendant's conviction for negligent child abuse, (3) the trial court properly denied Defendant's motion to suppress statements she made to police, (4) the trial court did not abuse its discretion in denying Defendant's motions for change of venue, and (5) the trial court acted within its discretion in sentencing Defendant. We therefore affirm.
{2} Defendant's convictions stem from the death of her son following physical abuse by the boy's father. We state the facts necessary for an understanding of Defendant's convictions in the light most favorable to the verdict. In our factual recitations throughout this opinion, we have relied on our review of the record below in addition to those facts set out in the parties' briefs that remained unchallenged. We relate additional facts as necessary in our discussion.
{3} Defendant had two children with her boyfriend, Freddie Ordoñez—a fifteen-month-old son, Uriah, and a two-year-old daughter. Defendant worked, while Ordoñez cared for their two children. On Tuesday, July 27, 2004, Ordoñez called Defendant while she was at work and told her to come home because something was wrong with Uriah. When Defendant arrived at home, Ordoñez admitted to her that he had become frustrated with Uriah, picked him up by his ears, thrown him into the bathtub, and then picked him up by his neck. Defendant later informed police that Uriah had bruises on his ears, a possible bump on his head, a red mark on his neck, a scrape on his leg, was scared and clingy, seemed weak, was vomiting, had glossy eyes, and had what Defendant described as episodes of twitching over the next two days.
{4} Defendant stayed home with Uriah on Wednesday, July 28, to watch over him. In describing Uriah's symptoms on Wednesday, Defendant stated that Uriah was vomiting and slept most of the day, that Uriah fell and had a seizure on Wednesday afternoon, and that Uriah continued to have episodes of twitching throughout the night. The next morning, Thursday, July 29, Defendant returned to work and left Uriah in Ordoñez's care. Ordoñez called Defendant while she was at work to tell her that Uriah was twitching. Defendant informed Ordoñez that Uriah had been twitching all night and instructed Ordoñez to feed Uriah a can of soup. Ordoñez then called a second time and told Defendant to hurry and come home. Defendant stated that when she arrived home, Ordoñez was holding Uriah and that Uriah's body was limp in his arms. Ordoñez placed Uriah on the couch and began performing cardiopulmonary resuscitation. There was conflicting evidence as to whether Uriah was still alive when Defendant returned home or whether Uriah was already dead. Defendant testified that she wanted to call emergency personnel to assist Uriah but that Ordoñez would not allow it.
{5} Shortly thereafter, Ordoñez and Defendant left their home. When they returned, Defendant fell asleep with her daughter. When Defendant awoke on Friday morning, July 30, 2004, she was unable to locate Ordoñez or her son's body. After a series of events not relevant to our analysis, Defendant contacted police in the early morning hours of Saturday, July 31, 2004, to gain assistance in locating her son. Defendant's initial statements to police did not clearly communicate that Uriah had died but only that Ordoñez had taken Uriah and that Defendant suspected Uriah may be dead. During the course of her approximately twenty-one hours at the police station assisting law enforcement with their investigation Defendant informed police that her son had died sometime Thursday. Through the investigation, it also came to light that Ordoñez had taken Uriah's body into the desert sometime late Thursday night or early Friday morning and had burned Uriah's remains.
{6} In her statements to police, Defendant indicated that the events occurring in the preceding days were not the first time Ordoñez had abused Uriah. Specifically, Defendant informed police that Ordoñez had previously abused Uriah in November 2003, that Uriah had marks on his neck and back from where Ordoñez had hit him, and that Defendant had taken Uriah to his paternal grandmother's until Ordoñez had cooled down. Defendant also stated that when Ordoñez would get mad at Uriah, he would "just pick [Uriah] up and he'd throw him in his crib" and that Ordoñez would yell at Uriah and tell him to shut up if he was crying too much. Defendant also informed police that Ordoñez was physically abusive toward her on a regular basis.
{7} Defendant was indicted on one count of negligently permitting child abuse resulting in death, one count of negligently permitting child abuse not resulting in death or great bodily harm, one count of tampering with evidence, and one count of conspiracy to commit tampering with evidence. The State filed a statement of joinder requesting that Defendant and Ordoñez be tried together. The joint trial against Defendant and Ordoñez commenced in February 2006. Following testimony by the first witness, defense counsel moved to sever Defendant's case, the motion to sever was granted, and the trial court declared a mistrial. Defendant was tried separately.
{8} At Defendant's trial, Defendant moved for a directed verdict following the close of the State's case. The State agreed to dismiss the charge of negligently permitting child abuse not resulting in death or great bodily harm. The remaining three charges were submitted to the jury. The jury convicted Defendant of negligently permitting child abuse resulting in death or great bodily harm and tampering with evidence. The jury found Defendant not guilty of conspiracy to commit tampering with evidence. The trial court sentenced Defendant to eighteen years' imprisonment on the child abuse charge and three years' imprisonment on the conviction for tampering with evidence. The trial court ordered the sentences to run concurrently.
{9} Defendant raises five issues on appeal: (1) her conviction for negligent child abuse should be overturned because the jury was instructed to apply a civil negligence rather than a criminal negligence standard, (2) there was insufficient evidence that she possessed the requisite mens rea for negligently permitting child abuse resulting in death or great bodily harm, (3) the trial court erred in refusing to suppress Defendant's multiple statements to police, (4) the trial court erred in refusing to grant Defendant's multiple motions for a change of venue, and (5) the trial court abused its discretion in refusing to mitigate her sentence based on battered-spouse syndrome. We address each issue below.
{10} We begin by addressing Defendant's challenge to the uniform jury instruction on negligent child abuse. Defendant contends that the uniform jury instruction given in this case, UJI 14-603 NMRA, erroneously allowed the jury to find her guilty of negligent child abuse based on a civil negligence standard. Specifically, Defendant contends that the language in the jury instruction permitting a conviction if Defendant knew or should have known her actions or failure to act created a substantial and foreseeable risk is consistent with a civil negligence and not a criminal negligence standard. See id. Defendant raises this issue for the first time on appeal. We therefore review Defendant's claim for fundamental error. State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 ().
{11} Defendant is correct in asserting that her conviction must be based on criminal negligence, not merely civil negligence. Our Supreme Court determined in Santillanes v. State, 115 N.M. 215, 849 P.2d 358 (1993), that a conviction for negligent child abuse pursuant to Section 30-6-1(D) must be based on a criminal negligence standard rather than a civil negligence standard in order to satisfy due process. Santillanes, 115 N.M. at 221-22, 849 P.2d at 364-65 (). The Santillanes Court held that to satisfy a criminal negligence standard there must be "proof that the defendant knew or should have known of the danger involved and acted with a reckless disregard for the safety or health of the child." Id. at 222, 849 P.2d at 365 Our uniform jury instruction, UJI 14-603, reflects that holding. See id., Use Notes and Compiler's Annotations.
{12} In State v. Schoonmaker, 2008-NMSC-010, 143 N.M. 373, 176 P.3d 1105, our Supreme Court considered whether UJI 14-602 is consistent with the Court's decision in Santillanes and embodies a criminal negligence standard or whether the instruction still permits a conviction pursuant to a civil negligence...
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