August 08, 2013 – State of New Mexico v. Gerard Muraida, NO. 31,646

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: August 8, 2013

NO. 31646

STATE OF NEW MEXICO,
Plaintiff-A ppellant,

V.

GERARD MURAIDA,
Defendant-A ppellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Charles W. Brown, District Judge

Gary K. King, Attomey General
Rebecca Salwin, Assistant Attomey General
Santa Fe, NM

for Appellant
Stelzner, Winter, Warburton, Flores, Sanchez & Dawes, P.A.

Luis G. Stelzner
Sara N. Sanchez,

Albuquerque, NM

for Appellee

OPINION
HANISEE, Judge.
{1} 	The State appeals the district court’s dismissal of the criminal complaint
charging Defendant Gerard Muraida, M.D., with abuse and/or neglect of a nursing
home resident, who died due to blood loss from an excessively prescribed quantity of
the 	anticoagulant 	drug 	Coumadin. 	The 	State 	argues 	that 	the 	district 	court
impermissibly decided the merits of the case by implicitly engaging in fact finding in
its dismissal of the complaint pursuant to Defendant’s pretrial Foulenfont motion. See
State v. Foulenfont, 1995-NMCA-028, ¶ 2, 119 N.M. 788, 895 P.2d 1329 (allowing
the dismissal of criminal charges on purely legal grounds when the district court
assumes the factual predicate underlying the charges to be true). 	Because the
complaint stated facts that if proven are sufficient to convict Defendant of abuse
and/or neglect, we reverse.
I. 	FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY
{2} 	The State’s complaint incorporates a sworn declaration (the report) by elder
care specialist Loren G. Lipson, M.D., regarding the circumstances of the resident’s
(identified herein as D.A.) medical care and death and alleges the facts we recite
herein, which we must assume to be true. D.A., then eighty-four years old, suffered
a heart attack and subsequently received acute care at the Heart Hospital of New

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Mexico in Albuquerque from August 2 to August 15, 2005. On August 15, D.A. was
transferred to Albuquerque Care Center (ACC) for rehabilitation, where Defendant
became her attending physician. Defendant saw D.A. once on August 16. As part of
the treatment for D.A.’s heart attack, Defendant prescribed Coumadin, which D.A.
had already begun to receive while being treated at the Heart Hospital of New Mexico.
Coumadin is “an anti[]coagulant used to thin blood so it can more easily pass through
constricted blood vessels.”
{3} 	Initially, Defendant utilized a blood test called Protime to monitor the
anticoagulative effects of Coumadin on D.A. 	This test measures an individual’s
clotting time (called the INR) in comparison with the standard clotting time for the
average person, for which a baseline INR value of 1.0 is assigned. In this case, the
therapeutic INR goal for D.A. was between 2.0 and 3.0. The complaint asserts that
this test was an important tool for Defendant to evaluate and monitor D.A.’s
coagulation because “Coumadin is a potentially dangerous drug and can result in
excessive bleeding due to decreased clotting.” 	At the admission examination
conducted by Defendant on August 16, Defendant noted that D.A. had “multiple
bruises[,] ‘areas related to her anti[]coagulation and hospitalization.’ He also noted
an elevated INR of ‘3.4’ which was higher th[an her therapeutic] ‘INR’ goal of ‘2 to
3.’ [At that time, D.A.’s] Coumadin dose was 1.0 mg per day.” Several days later on

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August 19, D.A.’s “INR was 1.74, [and Defendant] increased the Coumadin dose on
[August 20] to 1.5 mg per day. Inexplicably, no additional INR’s were ordered for (a
week) even though a new dose of Coumadin was started, and [D.A.’s] INR was
elevated above the desired range [at the time of her] admission.” In his report, Dr.
Lipson explained that “[w]hen the Coumadin dose is increased or decreased[,] the INR
must be measured daily until a relative steady state is obtained. 	If too much
Coumadin is given, any wound, vessel abnormality[,] or lesion where there may be
a tendency to bleed has a greater chance of bleeding.”
{4} 	Also pursuant to Dr. Lipson’s report, the complaint maintains that “Dr. Muraida
did not set blood pressure notification parameters, and actually ignored her low blood
pressure when he examined her.” Notably, “low blood pressure [can be a sign of]
acute bleeding and . . . dehydration.” Defendant also “failed to reduce [D.A.’s] blood
pressure medication dosages or check her hydration status or hematologic status—all
placing her at risk for further heart damage, stroke or other vital organ ischemic
damage.”
{5} 	Six days following the increase in Coumadin dosage and upon discovery of
blood in D.A.’s stool on August 26, Defendant “ordered [ACC] nursing to schedule
a colonoscopy with a gastroenterologist . . . ‘for possible hemorrhoids’ ([without a]
basis in [her] chart for that diagnosis). [In addition, t]he appointment was not asked

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for on an emergent basis.” No INR test was administered at that time. Dr. Lipson
explained that the “[s]tandard of care . . . demanded an immediate evaluation of her
gastrointestinal bleeding in a hospital, discontinuation of the Coumadin for at least
two days[,] and daily measurement of her INR. Any gastrointestinal bleeding would
place [D.A.] at risk for further heart damage from anemia and hypoxia.”
{6} 	The report also stated that Defendant was informed that D.A. had a nose bleed,
knee swelling, and bright red blood in her stools after she suffered falls getting out of
bed, yet Defendant did not properly address those issues. Ultimately, on September
1, D.A. was sent to the emergency room for acute rectal bleeding. The affidavit states
that she was “massively over anticoagulated,” possessing an INR “greater than 12.5[,]
despite her anticoagulation goal being [an INR of 2.0 to 3.0].” The complaint alleges
that D.A. died from blood loss from a tumor in her colon as a result of the
anticoagulation treatment. Dr. Lipson stated that “[h]ad [Defendant] on [August 26]
immediately and aggressively followed up on her initial reported rectal bleeding by
stopping the Coumadin and getting an emergent colon[o]scopy [, D.A.] would not
have died on [September 1, 2005].” Dr. Lipson concluded that Defendant’s “grossly
negligent conduct directly led to [D.A.’s] death.”
{7} 	Defendant’s pretrial Foulenfont motion, filed prior to any determination of
probable cause by either a grand jury or a judge at a preliminary hearing, asserted that

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the charges against him should be immediately dismissed because the complaint and
supporting affidavit did not allege facts sufficient to support a conviction for abuse
and neglect of D.A. 	The State responded that ample facts were alleged in the
complaint and supporting documents to establish Defendant’s criminal liability. The
State also maintained that to the extent Defendant’s motion required inquiry into the
facts, such questions should be resolved at trial. The district court granted the motion
and dismissed all charges against Defendant, determining that “the undisputed facts
cannot, as a matter of law, sustain the elements of the criminal offenses charged.” The
State appeals, arguing that the district court wrongly decided the merits of the case
before trial.
II. 	DISCUSSION
{8} 	Defendant was charged in a two-count criminal complaint with violating the
Resident Abuse and Neglect Act (the Act). 	See NMSA 1978, §§ 30-47-1 to -10
(1990, as amended through 2010). 	Both counts alternatively alleged abuse and
neglect under the Act. Count one was premised on injuries suffered by D.A.; count
two was premised on her death.
{9} 	The Act provides criminal penalties for medical care administered in a
residential setting that falls beneath legislated standards of acceptability. See § 30-47-
4 (setting forth the criminal penalties for resident abuse); § 30-47-5 (setting forth the

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criminal penalties for resident neglect). 	Under Section 30-47-3(A)(4), “ ‘abuse’
means any act or failure to act performed intentionally, knowingly[,] or recklessly that
causes or is likely to cause harm to a resident, including: . . . medically inappropriate
conduct[.]” Under Section 30-47-3(F),
“neglect” means, subject to the resident’s right to refuse treatment and
subject to the caregiver’s right to exercise sound medical discretion, the
grossly negligent:
(1) 	failure to provide any treatment, service, care, medication
or item that is necessary to maintain the health or safety of a resident;
(2) 	failure to take any reasonable precaution that is necessary
to prevent damage to the health or safety of a resident; or
(3) 	failure to carry out a duty to supervise properly or control
the provision of any treatment, care, good, service or medication
necessary to maintain the health or safety of a resident[.]
Thus, at minimum, the complaint must allege facts that demonstrate Defendant acted
in an abusive manner or was “grossly negligent” when he neglected to take reasonable
precautions or to provide or supervise the provision of appropriate care, treatment,
service, or medication necessary to the maintenance of D.A.’s health. Id.
{10} 	As Section 30-47-3(F) does not specify what it means by “grossly negligent”
conduct, we must clarify whether the type of negligence at issue is criminal or civil.
“What distinguishes civil negligence from criminal negligence is not whether the
person is subjectively aware of a risk of harm; rather, it is the magnitude of the risk

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itself.” State v. Schoonmaker, 2008-NMSC-010, ¶ 43, 143 N.M. 373, 176 P.3d 1105.
In order to be criminally negligent, a defendant need not be subjectively
aware of a risk, but the risk must be one of which he should be aware.
The risk must be of such a nature and degree that the actor’s failure to
perceive it involves a gross deviation from the standard of care that a
reasonable person would observe in the actor’s situation.
State v. Webb, 2013-NMCA-027, ¶ 22, 296 P.3d 1247 (alterations, internal quotation
marks, and citation omitted), cert. denied, 2013-NMCERT-002, 300 P.3d 132; see UJI
14-133 NMRA (defining criminal negligence). Thus, to commit criminal negligence,
“there must be an actual or imputed foreseeability of danger directed toward the
[victim] who might be injured as a result of [the d]efendant’s acts.” 	Webb,
2013-NMCA-027, ¶ 23 (internal quotation marks and citation omitted). Moreover,
that risk of harm must be “substantial and unjustifiable.” 	State v. Chavez, 2009-
NMSC-035, ¶ 45, 146 N.M. 434, 211 P.3d 891 (internal quotation marks and citation
omitted).
{11} 	Since the Legislature did not specify either the civil or criminal category of
negligence, we take heed that “statute[s] defining criminal conduct must be strictly
construed.” 	Santillanes v. State, 1993-NMCA-012, ¶ 25, 115 N.M. 215, 849 P.2d
358. “Doubts about the construction of a criminal statute are resolved in favor of the
rule of lenity.” State v. Bybee, 1989-NMCA-071, ¶ 12, 109 N.M. 44, 781 P.2d 316.
“A criminal statute may not be made applicable beyond its intended scope, and it is

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a fundamental rule that crimes must be defined with appropriate definiteness.
Similarly, a statute will not be read to apply to a criminal offense unless the legislative
proscription is plain.” Id. (citation omitted). Furthermore, it is “well-established in
New Mexico, that only criminal negligence may be a predicate for a felony unless
another intention is clearly expressed by the [L]egislature.” 	State v. Yarborough,
1996-NMSC-068, ¶18, 122 N.M. 596, 602, 930 P.2d 131 (emphasis added). 	In
accordance with these tenets of construction and New Mexico precedent, we conclude
that the narrower standard of criminal negligence is applicable to Section 30-47-3(F)
of the Act, which markedly punishes the neglect of a resident resulting in any harm
as a felony. See § 30-47-5(B)-(D) (stating that whoever commits neglect of a resident
resulting in physical harm, great psychological harm, great physical harm, or death is
guilty of a felony).
{12} 	Having clarified the nature of neglect required to be proven by the State in order
to convict Defendant of the crimes at issue on that basis, we review de novo whether
the district court erred in granting Defendant’s Foulenfont motion. State v. LaPietra,
2010-NMCA-009, ¶ 5, 147 N.M. 569, 226 P.3d 668 (“The contours of the district
court’s power to conduct a pretrial hearing on a motion to dismiss charges brought
under Rule 5-601 [NMRA] is a legal question reviewed under a de novo standard.”).
Specifically at issue is the propriety of the district court’s finding that the State failed

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to allege sufficient facts to support a conviction under either Section 30-47-4 (abuse
of a resident) or Section 30-47-5 (neglect of a resident) in either or both of the two
counts that comprised the criminal complaint. The district court’s authority to rule on
pretrial motions in criminal matters is dictated by Rule 5-601(B), which states that
“[a]ny defense, objection or request which is capable of determination without a trial
on the merits may be raised before trial by motion.” 	As explained in Foulenfont,
dismissal of charges can only be granted if such charges can be disposed of solely by
deciding a question of law. 1995-NMCA-028, ¶ 5. “Questions of fact, however, are
the unique purview of the jury and, as such, should be decided by the jury alone.”
LaPietra, 2010-NMCA-009, ¶ 7.
{13} 	In LaPietra, this Court was presented with circumstances similar to the case at
bar and by our ruling declined to expand the breadth of the district court’s Foulenfont
authority beyond its power to dismiss charges based on dispositive questions of law.
2010-NMCA-009, ¶¶ 10-16. Although LaPietra involved allegations of child abuse,
and not residential care patients, the defendants in that case likewise successfully
brought a Foulenfont motion arguing that the State lacked evidence to prove that the
defendants caused the children to be placed in a situation that endangered their life or
health. LaPietra, 2010-NMCA-009, ¶ 8. In reversing, we explained that it was the
province of the jury to decide the issue of who committed the abuse. 	Id. ¶ 9. 	We

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stated that
the argument that [the d]efendants make is essentially advocating how
to characterize the pretrial transcripts of witness interviews that were
given to the district court. . . . [The d]efendants’ argument, while
stipulating to what is known at the pretrial juncture, amounts to a
disagreement with the [s]tate as to what a reasonable jury could
conclude.
. . . .
The evidence contained in the transcripts can be viewed in a
variety of ways, one of which would allow a jury to conclude that either
[the d]efendant or both [the d]efendants committed the abuse, allowed
the abuse to happen, or knew, or should have known, that the abuse was
occurring. . . . While the district court may have thought the [s]tate had
a weak case, the district court did not have the opportunity to observe
testimony of witnesses under oath, judge their credibility, weigh the
evidence, and hear opposing arguments after the close of evidence.
Id. ¶¶ 9, 11. Our decision thus recognized that it would be impossible to determine
what a jury might conclude and that it was the jury’s job “to judge the credibility of
witnesses and determine the weight of evidence.” Id. ¶ 11 (internal quotation marks
and citation omitted).
{14} 	Similarly, at issue here is whether the district court exceeded its authority under
Rule 5-601(B) and Foulenfont when it concluded that there were insufficient facts
alleged to convict Defendant of the charged crimes. Defendant’s Foulenfont motion
asserted that “the alleged facts as a matter of law could not support a conviction of
[Defendant] for [a]buse or [n]eglect of a [r]esident” because “neither the [c]omplaint

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nor the affidavit supporting it reflects that [Defendant] acted or failed to act
intentionally, knowingly, recklessly, or criminally negligently.” Defendant contended
that “the State . . . seeks to convict [Defendant] based on conduct that, at most, could
amount to civil negligence, or to hold him vicariously criminally liable for collective
actions of his alleged ‘physician extenders.’ ” Defendant also contends on appeal that
the State alleged insufficient facts to show that Defendant had a “legal duty to further
inform himself, examine D.A. again, or inquire further about her condition prior to her
death.” See State v. Greenwood, 2012-NMCA-017, ¶ 35, 271 P.3d 753 (stating that
an omission can only constitute a crime where the defendant had a legal duty to act),
cert. denied, 2012-NMCERT-001, 291 P.3d 598.
{15} 	We hold that the complaint and accompanying affidavit alleged sufficient facts,
if proven, to convict Defendant for abuse and/or neglect of D.A. under the Act. The
complaint states that Defendant increased D.A.’s dosage of Coumadin, a dangerous
and potentially lethal anticoagulant, and subsequently failed to take the reasonable
precaution associated with monitoring the effect of the prescribed dosage of that
medication: 	testing her INR daily. 	A jury could reasonably conclude that this
omission amounted to a failure to act performed intentionally, knowingly, or
recklessly (abuse), or amounted to a gross deviation from the applicable standard of
care rising to the level of criminal negligence (neglect). The complaint also indicates

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that Defendant failed to consider and modify D.A.’s blood pressure medication, which
under the Act’s definition of abuse or neglect could likewise suffice, if proven at trial,
to establish guilt. 	It further states that Defendant failed to properly supervise the
implementation of D.A.’s care, treatment, and medication while under his care,
because after he increased her Coumadin dosage, he failed to act in response to her
worsening symptoms. Significantly in this regard, the Act establishes as neglect the
criminally negligent failure to carry out a duty to supervise the medical care and
treatment of a resident.
{16} 	Also significantly, the complaint states that Defendant failed to order the proper
care for D.A. upon discovery of blood in her stool on August 26th. 	Rather than
determine whether the symptom was a product of over-anticoagulated blood due to
Coumadin, Defendant ordered a colonoscopy. Moreover, the complaint alleges that
he did so on a non-emergent basis, despite the apparent fact that D.A. then required
much more drastic and urgent treatment. 	The affidavit expressly states that, had
Defendant given D.A. the appropriate care at this juncture, she would not have bled
to death internally from her colon. 	Again, under the definitions of the Act,
Defendant’s own actions and inactions as alleged satisfy the threshold standard
required to survive a Foulenfont motion. 	A jury could conclude that the events
alleged posed a substantial and unjustifiable risk to D.A.’s life. These facts provide

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a sufficient basis to conclude that Defendant was personally grossly negligent in his
treatment and care of D.A. and that he had a duty under the Act to provide proper care
as the attending physician who prescribed increased dosages of the fatal anticoagulant
to D.A.
{17} 	We conclude that the district court erred in determining that the State alleged
insufficient facts to support convictions for abuse and/or neglect. 	As in LaPietra,
Defendant’s argument both below and on appeal amounts to a disagreement as to how
the factfinder should interpret the facts alleged. Such interpretations benefit from the
opportunity to observe the testimony of witnesses, judge their credibility, weigh the
evidence, and hear the parties’ arguments after the close of evidence, as a jury would
have. 	Such contested questions of fact in criminal cases rest within the exclusive
province of jurors.
{18} 	To the extent Defendant argues that the complaint alleged insufficient facts to
prove Defendant’s intent and that “[a]t no time did the State suggest that it could
reasonably present evidence at trial to show what [Defendant] did or did not do, or
what he knew or did not know[,]” we conclude that Defendant’s awareness of the
substantial and unjustifiable risk of harm to D.A. caused by his actions can be inferred
from the facts stated in the complaint and affidavit. See Schoonmaker, 2008-NMSC-
010, ¶ 43 (stating that the defendant is deemed to have acted negligently “when he

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should be aware of a substantial and unjustifiable risk that the material element exists
or will result from his conduct” and explaining that “[t]he risk must be of such a
nature and degree that the actor’s failure to perceive it, considering the nature and
purpose of his conduct and the circumstances known to him, involves a gross
deviation from the standard of care that a reasonable person would observe in the
actor’s situation.” (emphasis, internal quotation marks, and citation omitted)). It is
well established that the fact finder may infer from circumstantial evidence that the
defendant acted with the requisite intent; direct evidence of the defendant’s state of
mind is not required. 	See State v. Largo, 2012-NMSC-015, ¶ 31, 278 P.3d 532.
Furthermore, “[a] defendant’s knowledge or intent generally presents a question of
fact for a jury to decide.” 	State v. Wasson, 1998-NMCA-087, ¶ 12, 125 N.M. 656,
964 P.2d 820. As such, it was improper for the district court to preemptively resolve
this question of fact in the context of a Foulenfont motion. Moreover, the State need
not present evidence to prove its case at the preliminary stage of the proceedings that
existed at the time of the district court’s ruling. Under Rule 5-601, the district court’s
decision must be based solely in law, and it must not consider the merits of the case.
{19} 	Defendant also asserts that “the State already conceded below that it cannot and
will not be able to prove who took what action and who knew what information with
respect to D.A.’s care.” 	We believe this assertion is based on an inaccurate

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understanding of the proceedings below. In the transcript from the Foulenfont motion
hearing quoted in part by Defendant, the State specifically discussed falls suffered by
D.A. between August 26 and 29. The State explained that “the difficulty with this
particular fact situation is that preceding August 29, on [August] 26 . . ., D.A. fell
twice. On [August] 28, she fell a third time, and what happened or to whom it might
have been reported or whatever is somewhat of a mystery. You can’t really tell.”
{20} 	Whatever transpired with regard to D.A.’s falls does not diminish the
significance of the State’s factual statements that it was Defendant who prescribed an
increased amount of Coumadin and failed to take precautions to monitor D.A.
thereafter and that it was Defendant who failed to order the proper care for D.A. upon
discovery of blood in her stool on August 26. The State did not concede that it cannot
prove facts related to these failures. The State only appears to have conceded that it
cannot identify how the falls occurred between August 26 and 29 and who was
informed of them. Sufficient facts were thus alleged to convict Defendant of abuse
and/or neglect, not based on unknown events, but rather on Defendant’s actions and
allegedly gross deviation from the standard of care as D.A.’s attending physician.
{21} 	Lastly, to the extent Defendant contends that the complaint attempts to make
Defendant “ ‘responsible’ for the actions of other people—such that he could be held
criminally liable for the[ir actions],” we disagree. Defendant argues that there is no

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law stating he can be held “criminally responsible for the actions of other, non-
employee providers who treat the physician’s patient.” Defendant is mistaken as to
the nature of what is required to convict him of neglect under the Act. Specifically,
the Act establishes criminal liability, not for the actions of others, but for Defendant’s
own criminally negligent failure to supervise them in their capacity as medical
caregivers acting to maintain the health of a resident under Defendant’s direction.
{22} 	Defendant nonetheless asserts that the State has failed to allege any evidence
sufficient to prove supervision. 	Yet the complaint states that Defendant’s team of
“physician extenders” included a certified physician assistant and a certified nurse
practitioner who had a collaborative practice agreement with Defendant. 	The
complaint charges Defendant with medically inappropriate and life-threatening
conduct, failures to provide treatment and care as D.A.’s attending physician, failures
to take precautions with her care, and failures to supervise or control her treatment,
in accordance with the definitions of abuse and neglect in Section 30-47-3. 	As
explained above, the complaint provides several instances where Defendant personally
acted or failed to act, jeopardizing D.A.’s life. As such, the complaint sufficiently
charges Defendant with liability for his own criminally negligent conduct and
supervision, not for the conduct of others. Based on what was alleged by the State in
the criminal complaint, there are sufficient facts for this case to proceed to trial, or at

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the very least, to a preliminary hearing to provide the State with an opportunity to
make its case.
{23} 	Because the district court erred in granting Defendant’s Foulenfont motion, we
reverse and remand this case to the district court. Upon remand, if the State chooses
to proceed, Defendant will have an opportunity for a preliminary examination, after
which the district court can weigh evidence and assess the existence of probable cause
from a developed factual record. See State v. Archuleta, 1970-NMCA-131, ¶ 25, 82
N.M. 378, 482 P.2d 242 (stating that where the “defendant was charged by an
information, he ha[s] a constitutional right to a preliminary examination”); UJI 14-
8001 (instructing grand jurors that a decision on probable cause must be based “solely
upon the evidence received” which may be determined to be “true or false” and given
“whatever weight . . . it deserves”).
IV. 	CONCLUSION
{24} 	For the reasons stated above, we reverse.
{25} 	IT IS SO ORDERED.
________________________
J. MILES HANISEE, Judge

WE CONCUR:

CYNTHIA A. FRY, Judge

MICHAEL E. VIGIL, Judge

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