State v. Wynn

• Decision Date: 05 April 2001
• Docket Number: No. 20,957.,20,957.
• Citation: 2001 NMCA 20,130 N.M. 381,24 P.3d 816
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Floyd WYNN, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

24 P.3d 816

130 N.M. 381

2001 NMCA 20

STATE of New Mexico, Plaintiff-Appellee, v. Floyd WYNN, Defendant-Appellant.

No. 20,957.

Court of Appeals of New Mexico.

April 5, 2001.

Patricia A. Madrid, Attorney General, M. Anne Kelly, Assistant Attorney General, Santa Fe, NM, for Appellee.

Phyllis H. Subin, Chief Public Defender, Santa Fe, NM, Josephine H. Ford, Assistant Appellate Defender, Albuquerque, NM, for Appellant.

OPINION

ALARID, Judge.

{1} Defendant appeals his conviction for aggravated battery on a household member. We reverse.

Whether the State Proved a Touching or Application of Force

{2} Defendant argues that the State was required to prove that he directly touched the victim's person or something attached to the victim's person. New Mexico defines aggravated battery against a household member as "the unlawful touching or application of force to the person of a household member with intent to injure that person or another." NMSA 1978, § 30-3-16(A) (1995) (emphasis added). In our view, the phrase "application of force" clearly addresses the situation in which the defendant does not touch the victim himself, but instead, sets in motion a series of physical events ultimately resulting in the application of force to the victim. Most obviously, an "application of force to the person" can occur without a direct touching when a defendant pulls the trigger of a gun, resulting in a violent chemical reaction generating a burst of high pressure gases which propel a bullet against or into the victim's person. See State v. Ortega, 113 N.M. 437, 440, 827 P.2d 152, 155 (Ct.App. 1992) (citing with approval Stokes v. State, 233 Ind. 10, 115 N.E.2d 442 (1953) (holding "unlawful touching" element of battery established by evidence that defendant fired gun and that bullet perforated victim's necktie, creasing victim's shirt)). We enforce a statute according to its plain meaning, unless to do so will lead to absurd or unreasonable results. State v. Wyrostek, 108 N.M. 140, 142, 767 P.2d 379, 381 (Ct.App.1988). Here, there was evidence that Defendant broke the kitchen window of the victim's apartment while the victim was standing in front of the window and that the victim was cut by a flying shard of glass. Applying the plain meaning of "application of force," we hold that Defendant's act of striking the window with sufficient force to propel the glass inward and against the victim constituted the application of force to the victim within the meaning of Section 30-3-16(A).

Sufficiency of the Evidence that Defendant Intended to Injure the Victim

{3} Defendant argues that the State did not come forward with sufficient evidence to establish beyond a reasonable doubt that Defendant intended either to apply force to the victim or to injure the victim. We agree.

{4} Aggravated battery is a specific intent crime. State v. Fuentes, 119 N.M. 104, 106, 888 P.2d 986, 988 (Ct.App.1994). Proof that Defendant unreasonably disregarded the victim's safety is insufficient to establish specific intent to injure. Cf. UJI 14-133 NMRA 2001 (defining criminal negligence). To prove the specific intent required by Section 30-3-16(A), the State was required to prove that in striking the window Defendant subjectively intended the consequences of application of force to the victim and injury to the victim from that application of force. See State v. Brown, 1996 NMSC 073, ¶ 22, 122 N.M. 724, 931 P.2d 69 (distinguishing general intent and specific intent crimes).

{5} In conducting substantial evidence review, we review the record, marshaling all evidence favorable to trial court's findings. If evidence is in conflict, or credibility is at issue, we accept any interpretation of the evidence that supports the trial court's findings, provided that such a view of the evidence is not inherently improbable. Crownover v. Nat'l Farmers Union Prop. & Cas. Co., 100 N.M. 568, 571, 673 P.2d 1301, 1304 (1983). We determine whether the evidence supports any conceivable set of rational deductions and inferences that logically leads to the finding in question. Jackson v. Virginia, 443 U.S. 307, 319 n. 13, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (noting that court conducting sufficiency of the evidence review does not attempt to scrutinize the reasoning process actually used by factfinder). We must be satisfied that the evidence was sufficient to establish the facts essential to conviction with the level of certainty required by the applicable burden of proof. State v. Garcia, 114 N.M. 269, 274, 837 P.2d 862, 867 (1992) (noting that Jackson requires consideration of beyond a reasonable doubt standard in determining sufficiency of evidence in criminal case); see also 2A Charles Alan Wright, Federal Practice and Procedure: Criminal § 467 (3d. ed.2000) (noting minimal support for proposition that standard for sufficiency of evidence is same in civil and criminal cases and ultimate rejection of this view by Supreme Court in Jackson). To support a conviction under a beyond a reasonable doubt standard, the evidence and inferences drawn from that evidence must be sufficiently compelling so that a hypothetical reasonable factfinder could have reached "a subjective state of near certitude of the guilt of the accused." See Jackson, 443 U.S. at 315, 99 S.Ct. 2781 {6} Defendant offered the only direct testimony regarding his intent: Defendant denied intending to harm the victim. The trial court was not required to believe Defendant's testimony that he did not intend to hurt the victim. E.g., State v. Durant, 2000-NMCA-066, ¶ 15, 129 N.M. 345, 7 P.3d 495. No New Mexico case has squarely addressed the issue of how the factfinder's disbelief of a criminal defendant's testimony is factored into substantial evidence review. In the worker's compensation context, we have recognized that "[a] finding that the testimony of a witness is not credible does not amount to a finding that the opposite of that witness's testimony is true." Varbel v. Sandia Auto Electric, 1999-NMCA-112, ¶ 21, 128 N.M. 7, 988 P.2d 317. Varbel is consistent with cases from other jurisdictions rejecting the proposition that a factfinder's disbelief of a criminal defendant's testimony can substitute for affirmative proof of the state's case. State v. Coleman, 14 Conn.App. 657, 544 A.2d 194, 202 (1988) (holding that jury not permitted to infer from disbelief of defendant's testimony that facts denied by defendant are true); Commonwealth v. Scott, 409 Pa.Super. 313, 597 A.2d 1220, 1223 (1991) (holding that trial court's conclusion that defendant's testimony was "self-serving" no substitute for proof); State v. West, 844 S.W.2d 144, 148 (Tenn.1992) ("Although the jury is permitted to disbelieve the defendant's testimony, it may not construct a theory based on no evidence at all."); United States v. Aulicino, 44 F.3d 1102, 1114-15 (2d Cir.1995) (observing that normally, discredited testimony is not sufficient to support drawing opposite conclusion). We see no principled basis for not applying Varbel to the testimony of criminal defendants; and, therefore, we hold that the trial court's rejection of Defendant's testimony denying the intent to harm the victim did not justify a finding beyond a reasonable doubt that the opposite of Defendant's testimony was true: i.e., that Defendant intended to harm the victim when he struck the window.

{7} There being no direct testimony supporting the trial court's finding that Defendant acted with the specific intent to harm the victim, we must determine whether there was sufficient circumstantial evidence to support a finding of intent. Durant, 2000-NMCA-066, ¶ 15, 129 N.M. 345, 7 P.3d 495.

{8} The victim was the State's only eyewitness; she testified to the following facts. Defendant is the victim's ex-husband. They have three children. On July 31, 1998, Defendant repeatedly called the victim at work explaining that he wanted to meet with her and the children so that he could say good-bye. To stop Defendant from calling her at work, the victim promised to bring the children to a park after work. The victim had no intention of keeping the appointment. After work she...