State v. Wilson

• Citation: 2001 NMCA 32,130 N.M. 319,24 P.3d 351
• Decision Date: 11 April 2001
• Docket Number: No. 21,279.,21,279.
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Rebecca WILSON, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

24 P.3d 351

130 N.M. 319

2001 NMCA 32

STATE of New Mexico, Plaintiff-Appellee, v. Rebecca WILSON, Defendant-Appellant.

No. 21,279.

Court of Appeals of New Mexico.

April 11, 2001.

Certiorari Granted May 25, 2001.

Patricia A. Madrid, Attorney General, Anita Carlson, Ass't Attorney General, Santa Fe, NM, for Appellee.

Phyllis H. Subin, Chief Public Defender, Samantha J. Fenrow, Ass't Appellate Defender, Santa Fe, NM, for Appellant.

Certiorari Granted, No. 26,923, May 25, 2001.

OPINION

PICKARD, Judge.

{1} Following the United States Supreme Court's announcement of its decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), courts across the country have been inundated by constitutional challenges to state and federal sentencing schemes. In this appeal, we must decide the constitutionality of NMSA 1978, § 31-18-15.1 (1993), which requires the sentencing court to hold a hearing to determine whether aggravating or mitigating circumstances warrant a departure from the basic felony sentences set forth in NMSA 1978, § 31-18-15 (1994).

{2} Defendant was convicted of child abuse resulting in death, contrary to NMSA 1978, § 30-6-1(C) (1997). Under Section 31-18-15, the basic sentence for a first degree felony is 18 years, and Section 31-18-15.1 allows for an increase of up to one-third of this basic sentence upon the finding of aggravating circumstances. At the sentencing hearing, the trial court found seven aggravating circumstances and sentenced Defendant to the maximum term of 24 years' imprisonment.

{3} On appeal, Defendant raises four issues: (1) whether an increase in a basic felony sentence under Section 31-18-15.1 is unconstitutional under Apprendi, unless the findings of aggravating circumstances are made by a jury beyond a reasonable doubt; (2) whether the trial court abused its discretion in finding that "lack of remorse" and "initial and continued deception" were aggravating circumstances justifying an increase in Defendant's basic sentence; (3) whether substantial evidence supports Defendant's conviction; and (4) whether the trial court abused its discretion by allowing the State's expert witness to present rebuttal testimony.

{4} We hold that (1) Sections 31-18-15 and 31-18-15.1 should be read together to provide for a range of sentences, and that sentencing within this range, based on findings made on the record by the trial court, is constitutional under the Apprendi decision; (2) the normal rules of preservation apply to Defendant's challenge to the trial court's findings of aggravating circumstances under Section 31-18-15.1, and that Defendant failed to preserve this issue for our review; (3) substantial evidence supports Defendant's conviction; and (4) the trial court did not abuse its discretion in allowing the State to call its expert as a rebuttal witness. We affirm.

FACTS AND PROCEDURAL HISTORY

{5} On July 20, 1998, Defendant was at home alone with her two children and two step-children. After the children went to bed, Defendant went in to check on them and found that the victim, her two and one-half year old step-son, was not breathing. Defendant called her husband and then called 911. She performed CPR on the victim until the ambulance and police arrived. The victim was transported to the emergency room where he was pronounced dead.

{6} At trial, Defendant testified that on the night of the victim's death, her step-son had been acting up and refused to go to bed when she asked him to do so. She said that she picked the victim up and playfully tossed him into bed, something that both Defendant and her husband testified that they often did with the children. Defendant testified that she heard the victim's head hit something on the bed, but that when she checked on him his eyes were open and he was not crying. Only later, when she checked on the victim a second time, did Defendant realize that the victim was no longer breathing.

{7} When Defendant arrived at the emergency room, she told the attending physician that the victim had fallen several days earlier and that the victim had been throwing tantrums, during which he would throw himself on the floor and bang his head. Defendant did not tell the doctor that she had tossed the victim onto the bed. In addition, Defendant admitted that she never told anyone in law enforcement about tossing the victim into bed, and Defendant's husband testified that Defendant did not tell him this version of events until several days after the victim's death.

{8} Defendant was charged with child abuse resulting in death. Prior to trial, the State learned that Defendant had videotaped a re-enactment of her version of the events leading up to the victim's death. At the State's request, the trial court ordered Defendant to provide the State with a copy of the videotape by January 24, 2000. Defendant failed to produce the videotape until February 7, 2000, the day before the trial began. On February 14, 2000, Defendant asked the trial court to exclude rebuttal testimony by one of the State's expert witnesses, Dr. Karen Campbell. The trial court denied Defendant's motion based on its findings that the late disclosure of the videotape had prevented the State from calling an expert in child injuries in its case in chief and that Dr. Campbell's testimony would be proper rebuttal of the defenses presented by Defendant.

{9} At trial, Defendant presented three defense theories: (1) that the victim's death was a freak accident caused by Defendant's playful tossing of the victim into bed, (2) that by tossing the victim into the bed, Defendant unintentionally exacerbated the victim's prior head injury, or (3) that the victim had injured himself by repeatedly banging his head into the floor while throwing a tantrum. The State offered medical testimony that the injuries suffered by the victim were incompatible with Defendant's three scenarios. The experts testified that the complex skull fractures suffered by the victim were consistent with the victim having been ejected from a car in a highway-speed automobile accident or with his falling from a two- to four-story building. The experts also testified that the victim had approximately seventeen bruises of varying ages around his head and neck, in addition to bruises on other parts of his body. In addition, the witnesses testified that some of the bruises were in atypical places, and not over bony prominences where one would expect them if they had been caused by the victim falling down. Based on the severity of the skull fractures suffered by the victim as well as the suspicious bruising, the experts concluded that the victim died as a result of child abuse.

{10} After the jury found Defendant guilty of child abuse resulting in death, the trial court held a sentencing hearing, as required by Section 31-18-15.1. The court found seven aggravating circumstances: (1) the viciousness of the crime, (2) the vulnerability of the victim, (3) the relationship between Defendant and the victim (as care giver and child), (4) Defendant's initial and continued deception, (5) a demonstrated lack of remorse by Defendant, (6) ongoing physical abuse in the home, and (7) the severe emotional trauma exercised by Defendant on other children in the household. The court sentenced Defendant to the basic eighteen-year term and added six years based on the aggravating circumstances, for a total of twenty-four years' imprisonment, the maximum sentence allowed for a first degree felony under Sections 31-18-15 and 31-18-15.1.

DISCUSSION

A. Apprendi

{11} Defendant argues that New Mexico's felony sentencing scheme is unconstitutional under Apprendi, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, in which the Supreme Court struck down a New Jersey law that allowed a court to increase a maximum criminal sentence based on facts not found by a jury beyond a reasonable doubt. The State argues that Defendant failed to preserve this issue during the sentencing hearing and thus appellate review is precluded. If Defendant is correct in her assertion that the Apprendi decision requires that a jury find all Section 31-18-15.1 aggravating factors beyond a reasonable doubt, it is because the aggravating factors are elements of a crime. Issues involving failure to instruct the jury upon essential elements when they are at issue are excepted from the preservation requirement. See State v. Osborne, 111 N.M. 654, 661-62, 808 P.2d 624, 631-32 (1991). Therefore, we conclude that this issue is properly before us.

{12} In Apprendi, the defendant fired several bullets into the home of an African American family that had recently moved into a previously all-white neighborhood. 120 S.Ct. at 2351. After the defendant pleaded guilty to second degree possession of a firearm, the prosecutor filed a motion seeking to enhance the sentence under New Jersey's "hate crimes" law. Id. The law provided for an extended term of imprisonment if the trial court found, by a preponderance of the evidence, that the defendant acted with the purpose to intimidate an individual or group because of an impermissible bias. The trial court found that the defendant had acted with racial bias and imposed a twelve-year sentence, which was two years longer than the maximum term allowed for a second degree felony. Id. at 2350. The Supreme Court reversed the sentence, holding that the hate crimes statute defined an element of a criminal offense and, as such, due process required that a jury find beyond a reasonable doubt that the defendant acted with the purpose to intimidate. See id. at 2364. The Court held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 2362-63. In reaching its holding, the Court distinguished and upheld the trial court's traditional discretion to consider factors relating both...