August 7, 2019- State of New Mexico v. Matthew Scott, No. A-1-CA-35725

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico

STATE OF NEW MEXIC™ Filed 8/7/2019 9:01 AM
Plaintiff-A ppellee, A. we .
Mark Reynal
Vv. No. A-1-CA-35725
MATTHEW SCOTT,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Christina P. Argyres, District Judge

Hector H. Balderas, Attorney General
Maha Khoury, Assistant Attorney General
Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM

for Appellant

MEMORANDUM OPINION
BOGARDUS, Judge.
4} Following a jury trial, Defendant Matthew Scott was convicted of two counts
of child abuse by endangerment (no death or great bodily harm). On appeal,
Defendant challenges (1) the sufficiency of the evidence presented to support the

first count; (2) the jury instruction under which the jury found him guilty of the

1 second count; and (3) the two convictions as violating his right to be free from double
2 jeopardy.
3 	{2} 	Agreeing with Defendant's double jeopardy argument, we remand to the
4 district 	court 	with 	instructions 	to 	vacate 	Defendant 's 	second 	conviction. 	We
5 otherwise affirm.
6 BACKGROUND
7 	{3} 	The following testimony was given at trial. At the time of the incidents leading
8 to Defendant's convictions, S.M. was a fourteen-year-old girl who lived with her
9 mother and older sister. On the night of February 28, 2010, at about 7:00 or 8:00
10 p.m., Defendant, who was then twenty years old, and S.M. were socializing at an
11 	acquaintance's apartment. At least two other males were also present. S.M. was
12 "chugging" alcohol. She and Defendant started kissing. Defendant pushed her down
13 	on the couch, she told him she was a virgin, and he responded, "Not anymore."
14 	Around then, 	she lost consciousness; 	she never consented to having sex with
15 	Defendant. According to Defendant, he and S.M. had sex that night, but he did not
16 	make her do anything she did not want to do.
17 	{4} 	Sometime later, Defendant had a friend give him and S.M., still unconscious,
18 	a ride back to her house. Once there, he laid S.M. in the driveway behind a car and
19 about ten feet from the garage door. Defendant banged on the garage door and then
20 	hurriedly left with the friend. S.M. 's sister heard the banging. She and her mother
2

1 started looking for S.M. in the house and outside, where it was raining heavily. Her
2 sister found S.M. lying in the driveway, unresponsive, smelling of alcohol, and
3 	looking like she had been in a fight. She carried S.M. inside and called the police.
4 Once inside the house, S.M. was throwing up and, though awake, was still incoherent
5 and unable to stand.
6 {S} 	S.M. was taken in an ambulance to a hospital. While there, she continued
7 vomiting. Her sister learned that S.M. 's bra and socks were missing and that she had
8 bruises on her thighs. Hospital staff referred S.M. to a sexual assault nurse examiner
9 (SANE), who examined her the next morning.
10 	{6} 	The SANE found redness and swelling on S.M. 's cheek, abrasions on her
11 	back, broken capillaries on the roof of her mouth, bruises on both breasts, and
12 	injuries to her genitalia. The SANE collected DNA samples from various places on
13 	S.M. 's body and collected samples of S.M. 's urine and blood.
14 {7} 	Subsequent lab analysis revealed that sperm DNA collected from the vaginal,
15 	cervical, and labial swabs matched Defendant's DNA. The pubic comb sample
16 	contained the DNA of Defendant and at least one person other than S.M. DNA
17 	collected from the right and left breast swabs revealed the DNA of at least two people
18 	other than S.M. The urine sample, taken at 8 :30 the morning after the incident, had
19 	an alcohol level of 0.13, the equivalent of a blood alcohol concentration of 0.096.
3

1 {8} 	A 	grand jury 	later 	indicted Defendant on 	one 	count of criminal 	sexual
2 	penetration, one count of criminal sexual contact of a minor , two counts of child
3 	abuse, one count of kidnapping, and one count of contributing to the delinquency of
4 	a minor. At a trial that ended on January 8, 2016, Defendant was acquitted of
5 criminal sexual contact and kidnapping. The jury was hung on the criminal sexual
6 	penetration charge, found Defendant not guilty of contributing to the delinquency of
7 a minor, and found Defendant guilty of the two counts of child abuse. The two child
8 abuse convictions are the subject of this appeal.
9 DISCUSSION
10 	I.
11
12 	{9}
The Evidence Is Sufficient to Support Defendant's First Child Abuse
Conviction
Defendant contends that his conviction on the first count of child abuse is not
13 	supported by sufficient evidence. The jury found Defendant guilty on this count after
14 	being instructed in pertinent part, as follows.
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For you to find [Defendant] guilty of child abuse, as charged in
Count 2, the [S]tate must prove to your satisfaction beyond a reasonable
doubt each of the following elements of the crime:
1. [Defendant] dropped [S.M.] off at her home;
2. 	By 	engaging 	in 	the 	conduct 	described 	in 	Paragraph 	1,
[Defendant] caused [S.M.] to be placed in a situation that endangered
the life or health of [S.M.];
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3. [Defendant] showed a reckless disregard without justification
for the safety or health of [S.M.]. To find that [Defendant] showed a
reckless disregard, you must find that [Defendant's] conduct was more
than 	merely 	negligent 	or 	careless. 	Rather, 	you 	must 	find 	that
[Defendant] caused a substantial and unjustifiable risk of serious harm
to the safety or health of [S.M.]. A substantial and unjustifiable risk is
one 	that 	any 	law-abiding 	person 	would 	recognize 	under 	similar
circumstances and that would cause any law-abiding person to behave
differently than [Defendant] out of concern for the safety or health of
[S.M.].
11 	Defendant does not challenge the validity of this instruction.
12 	{IO} 	Before 	addressing 	Defendant' s 	specific 	contentions, 	we 	consider 	the
13 	principles guiding our review of this issue. Our affirmance hinges on "whether
14 substantial evidence of either a direct or circumstantial nature exists to support a
15 	verdict of guilty beyond a reasonable doubt with respect to every element essential
16 	to a conviction." State v. Montoya, 2015-NMSC-010, ,r 52, 345 P.3d 1056 (internal
17 quotation 	marks 	and 	citation 	omitted). 	Substantial 	evidence 	is 	"such 	relevant
18 	evidence as a reasonable mind might accept as adequate to support a conclusion[.]"
19 State v. 	Salgado , 1999-NMSC-008, ,r 25 , 126 N.M. 691 , 974 P.2d 661 (internal
20 	quotation marks and citation omitted). In making our determination, we "v iew the
21 	evidence in the light most favorable to the guilty verdict, indulging all reasonable
22 	inferences and resolving all conflicts in the evidence in favor of the verdict[,]" State
23 	v. Cunningham, 2000-NMSC-009, ,r 26, 128 N.M. 711 , 998 P.2d 176, and "disregard
24 	all evidence and inferences to the contrary[,]" State v. Rojo, 1999-NMSC-OO 1, ,r 19 ,
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1 126 N.M. 438, 971 P.2d 829. We lastly note that " [j]ury instructions become the law
2 	of the case against which the sufficiency of the evidence is to be measured." State v.
3 Smith, 1986-NMCA-089, , 7, 104 N.M. 729, 726 P.2d 883 .
4 {I I} 	Applying these 	principles, we 	dismiss 	some 	of Defendant' s arguments.
5 Among them, Defendant submits that his actions, "while maybe not a model of
6 responsibility, were intended to alert [S.M. ' s] family and help [S.M.] receive care[.]"
7 Specificall y, Defendant argues that his banging on the garage door was to ensure
8 that "someone would promptly come get [S.M.]." We disregard the inference that
9 Defendant' s 	actions 	made 	S.M. 	safer, 	see Rojo, 	1999-NMSC-001 , 	, 	19 , 	and
10 otherwise dismiss this argument because the instruction did not require the jury to
11 	evaluate Defendant's guilt based on his intent. See Smith, 1986-NMCA-089, , 7.
12 	Likewise, the instruction did not require a finding that S.M. suffered injury, so
13 	Defendant's argument that S.M. "suffered no injuries from being left outside" is not
14 	relevant to our review and therefore without merit. See id.
15 	{12} 	Instead, the instruction directed the jury to find guilt if it found that, by
16 dropping S.M . off at her home, Defendant placed S.M. in a situation that endangered
17 	her 	life 	or 	health 	and 	that 	Defendant 	showed 	a 	reckless 	disregard 	without
18 justification for S.M. 's safety or health. The jury further had to find that Defendant's
19 	reckless disregard amounted to more than negligence or carelessness, but rather
20 created a substantial and unjustifiable risk- 	that is , a risk that any law-abiding
6

1 person would recognize under similar circumstances and that would cause the person
2 to behave differently than Defendant did out of concern for S.M. 's safety or health.
3 The jury 	heard 	evidence 	that 	when 	Defendant 	dropped 	S.M. 	off, 	S.M. 	was
4 intoxicated and unconscious and it was raining heavily. It heard Defendant say that,
5 because his friend, the driver, was in a hurry to leave, Defendant "just laid her down
6 in front of the garage, banged on the garage door and took off."
7 	{13} 	Although the jury also heard evidence that S.M. 's sister heard the banging and
8 soon discovered S.M. lying in the driveway, the jury could reasonably infer that
9 Defendant acted recklessly in what he failed to do: that is, in failing to take S.M. to
10 the door and wait for an answer, or to wait to ensure that someone came to the
11 	driveway to care for S.M. In other words, the jury could reasonably conclude that
12 Defendant endangered S.M.'s health and safety by leaving her unconscious and
13 	alone, outside at night, without knowing whether her condition was or would become
14 	serious, how long she would be left in that state, or what might happen to her as a
15 	result of those circumstances. It could reasonably conclude that his friend ' s hurry
16 	was not justification to do this. Further, the jury could reasonably conclude that a
17 law-abiding person would both recognize the risks of leaving S.M. under those
18 	circumstances- 	having excessively consumed alcohol, 	placed behind a parked
19 vehicle, and in inclement weather- 	and also behave differently than Defendant did.
20 Overall, when viewing the evidence in the light most favorable to a guilty verdict,
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1 Cunningham, 	2000-NMSC-009, 	il 26, 	we 	conclude 	that 	there 	was 	sufficient
2 evidence for the jury to find that, through his actions and inactions, Defendant
3 recklessly disregarded S.M. 's safety or health without justification. We therefore
4 affirm his conviction on the first count of child abuse.
5 II.
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9 {14}
The Jury Instruction Associated With the Second Count of Child Abuse
Was Improper Because It Created the Possibility That Defendant Was
Convicted of Two Crimes for the Same Offense, in Violation of His Right
to Be Free From Double Jeopardy
Defendant next contends- 	under various lines of reasoning, including one
10 based on double jeopardy- 	that the jury instruction for the second count of child
11 	abuse led to a wrongful conviction. The parties dispute whether Defendant preserved
12 	the issue of the jury instruction ' s propriety. 	We need not resolve this dispute
13 	because, even if Defendant did not preserve the issue, we would review the use of
14 the instruction for fundamental error. See id. il 11. Fundamental error includes error
15 	that "goes to the foundation or basis of a defendant ' s rights[.]" Id. il 13 (internal
16 quotation marks and citation omitted). The right to be free from double jeopardy is
17 	among those rights; it is, "[l]ike the right to trial by jury , ... clearly fundamental to
18 	the American scheme of justice." Benton v. Maryland, 395 U.S . 784, 796 (1969)
19 (internal quotation marks and citation omitted). Because we conclude that the jury
20 	instruction used created the possibility that Defendant was convicted of two crimes
21 	for the same offense, in violation of his right to be free from double jeopardy, we
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1 necessarily also conclude that the use of the jury instruction constituted fundamental
2 error, and Defendant need not have preserved his objection to it. Cf NMSA 1978,
3 	§ 30-1-10 (1963) (establishing the right of a defendant to raise the defense of double
4 jeopardy for the first time on appeal).
5 {15} 	As noted, Defendant argues that the jury instructions on child abuse, taken
6 together, form the basis of a double jeopardy violation. Each instruction was based
7 on the uniform jury instruction, UJI 14-612(2) NMRA, that corresponds to the child
8 abuse statute, NMSA 1978, § 30-6-1 (2009). As previously stated, the first paragraph
9 of the instruction for the first count of child abuse, Count 2 of the amended
10 	indictment against Defendant, read: "[Defendant] dropped [S.M.] off at her home[.]"
11 	The instruction for the second count of child abuse, Count 3 of the amended
12 	indictment, was identical to Count 2's instruction-ex cept for its first paragraph,
13 	which read: "[Defendant] allowed [S.M.] to be in a dangerous situation after she was
14 rendered unconscious[.]"
15 	{16} 	Referring 	to 	its 	first 	paragraph, 	Defendant 	argues 	that 	"[t]he 	second
16 	instruction appears to encompass the one act described in the first instruction"; under
17 	this circumstance, he continues, the jury was allowed to "rely on the same conduct
18 	for both counts." The State, meanwhile, argues that it presented evidence sufficient
19 	to support each of the two convictions. Specifically, the State argues, the first
20 conviction was based on Defendant 's "placing S.M. 's unconscious body in the
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1 driveway on a ramy winter's night and failing to ensure that her family was
2 notified[,]" and the second was based on Defendant's "placing S.M. in a dangerous
3 situation at the apartment[.]" Of note, the State does not argue that more than one
4 count of child abuse occurred at S.M. ' s home.
5 	{17} 	"The propriety of jury instructions given or denied is a mixed question oflaw
6 and fact. Mixed questions of law and fact are reviewed de novo." State v. Salazar,
7 	1997-NMSC-044, 149, 123 N.M. 778, 945 P.2d 996. "We review jury instructions
8 to determine whether a reasonable juror would have been confused or misdirected
9 by the jury instructions. We consider jury instructions as a whole, not singly." State
10 	v. Montoya , 2003-NMSC-004, 123, 133 N.M. 84, 61 P.3d 793 (citation omitted).
11 	{18} 	The question here is whether the second jury instruction could have confused
12 or misdirected a reasonable juror by leading such a juror to a finding of guilt of a
13 	second offense based on Defendant' s conduct at S.M. ' s home. In light of our
14 	affirmance of Defendant's first conviction of child abuse occurring at S.M .'s home,
15 	such a finding by the jury would put Defendant in double jeopardy, which is
16 	prohibited by the Fifth Amendment of the United States Constitution, an amendment
17 "made applicable to New Mexico by the Fourteenth Amendment[.]" State v. Swick,
18 	2012-NMSC-018, 110 , 279 P.3d 747. The Fifth Amendment' s Double Jeopardy
19 Clause specifically provides that no person shall "be subject for the same offence to
20 be twice put in jeopardy of life or limb[,]" U.S. Const. amend. V. ; the provision
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1 "functions in part to protect a criminal defendant against multiple punishments for
2 the same offense[,]" Swick, 2012-NMSC-O 18, ,I 10 (internal quotation marks and
3 citation omitted).
4 	{19} 	There are several aspects of this case which may have caused a reasonable
5 juror to have been confused or misdirected as Defendant asserts. First, there was
6 confusion between the parties themselves about what conduct constituted each of
7 the child abuse charges. The State's theory about the factual basis for each charge
8 was unclear at the case's inception: the grand jury indicted Defendant on two
9 identical counts of child abuse under Section 30-6-l(D). There remained confusion
10 on this point during argument on the directed verdict motion. Lastly, during its
11 	closing arguments, the State did not explain which of Defendant's acts corresponded
12 	to each of the child abuse charges. See State v. Candelaria, 2019-NMCA-032, ,I 37,
13 	_ 	P.3d _ 	(examining, in the context of a double jeopardy issue, the state's
14 closing argument "to determine whether it clarified the factual basis" for each of two
15 	counts charged against the defendant), cert. denied, 2019-NMCERT-_ (No. S-1-
16 	SC-37644, Apr. 1, 2019).
17 	{20} 	After the defense's closing argument, which likewise did not specify the
18 	conduct corresponding to each of the child abuse charges, the jury received the jury
19 	instructions, 	including 	the 	two 	concerning 	child 	abuse. 	The 	first 	instruction
20 prompted the jury to determine guilt based on Defendant's conduct at S.M.'s home.
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1 The second prompted it to determine guilt based on Defendant' s conduct "after
2 [S.M.] was rendered unconscious." S.M. testified that she could not remember
3 anything from the time Defendant pushed her down on the couch at the apartment
4 until she woke up the next day in the hospital. In other words, a reasonable juror
5 could have understood that S.M. was rendered unconscious at the apartment and
6 remained unconscious through the time Defendant left S.M. in the driveway. The
7 second instruction did not specify the setting in which the second alleged child abuse
8 offense took place. Given all this, a reasonable juror might have been misdirected
9 by the second instruction into thinking that the question of whether Defendant
10 "allowed [S.M.] to be in a dangerous situation after she was rendered unconscious"
11 	referred to Defendant' s conduct while at S.M. ' s home and, specifically, to the act of
12 	leaving S.M. unconscious and alone, outside at night, without knowing whether her
13 	condition was or would become serious, how long she would be left in that state, or
14 	what might happen to her as a result of those circumstances.
15 	{21} 	Had the jury been misdirected in such a way, and given that only one act of
16 child abuse was alleged to have occurred at S.M. ' s home, a second conviction based
17 on conduct occurring there would expose Defendant to double jeopardy. This result
18 	would constitute fundamental error. Accordingly, we must remand this case to the
19 district court with instructions to dismiss Defendant' s second conviction. Cf State
20 	v. Montoya, 2011-NMCA-074, 139 , 150 N.M. 415,259 P.3d 820 (concluding that,
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1 when one jury instruction supports more than one theory of an offense, it is unclear
2 	which of two alternative bases the jury relied on in finding the defendant guilty of
3 that offense, 	and 	one 	of the 	bases 	is 	legally 	inadequate 	because 	it violates 	a
4 	defendant's right to be free from double jeopardy , a conviction arising from the use
5 	of that instruction cannot stand); State v. Cook, 2006-NMCA-l 10 , ~~ 11 , 19, 140
6 N.M. 356, 142 P.3d 944 (vacating a conviction because of the absence in the jury
7 	instructions 	of a factual 	basis 	for each of two 	charges, because 	of "confused
8 discussions" between the parties about the factual basis for each count , and because
9 	of the possibility that the jury found the defendant guilty of the same crime twice for
10 the same conduct).
11 	{22} 	Because 	our 	conclusion 	reqmres 	that 	Defendant' s 	second 	conviction 	be
12 	vacated, we need not address Defendant's remaining arguments challenging his
13 	conviction.
14 	CONCLUSION
15 	{23} 	We affirm Defendant's conviction on the first count of child abuse. 	We
16 remand to the district court with directions to vacate Defendant' s conviction on the
17 second count of child abuse.
18 	{24}
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IT IS SO ORDERED.
fi r-- ~KRI INA BOG~~Judge
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1 WE CONCUR:
4. Mai
2 3
J. MILES HANISEE, Judge
4 5
Julie 4. Vargar
JULIE J. VARGAS, Judge
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