March 11, 2020- State of New Mexico v. Nathaniel Hertzog, No. A-1-CA-37331

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: een lod 3/11/2020 10:31 AM
Filing Date: MARCH 11, 2020 Lh
No. A-1-CA-37331 Mark ——y-
STATE OF NEW MEXICO,

Plaintiff-Appellee,
V.
NATHANIEL HERTZOG a/k/a
a/k/a NATHANIEL V. HERTZOG

a/k/a NATHANIEL VINCE HERTZOG
a/k/a NATHANIAL HERTZOG a/k/a
JEFFREY HERTZOG a/k/a JEFFERY
HERTZOG,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Brett R. Loveless, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

John Woykovsky, Assistant Attorney General
Albuquerque, NM

for Appellee

Mark A. Keller Law Office
Terri Keller
Albuquerque, NM

for Appellant

1 	OPINION
2 HANISEE, Chief Judge.
3 	{t} 	Nathanial Hertzog (Defendant) appeals his conviction for leaving the scene of
4 an accident (great bodily harm or death) in the fourth degree, contrary to NMSA
5 	1978, Section 66-7-201(B) (1989). On appeal, Defendant argues (1) the district court
6 erred in failing to properly instruct the jury regarding the definition of "accident";
7 and (2) the State presented insufficient evidence to support Defendant's conviction.
8 We affirm.
9 BACKGROUND
10 	{2} 	On the 	evening 	of September 	12, 2015, 	Defendant 	and his 	girlfriend,
11 	Stephanie Frost (Victim), visited the home of their friends, Steve and Samantha
12 Rogers. Over the course of the visit (approximately two and a half hours), Defendant
13 	had a "couple of beers," and Victim had five or six shots of hard liquor. Defendant
14 and Victim then left the Rogers' home in seemingly good spirits with Defendant
15 	driving his Chevy Avalanche truck.
16 	{3} 	During the drive an argument erupted between Defendant and Victim. Victim
17 punched Defendant in the face and then jumped out of the moving truck near Lomas
18 	and Wyoming Boulevards. The truck was traveling at approximately forty miles per
19 hour at the time. Defendant braked momentarily following the event, and although
20 he was aware that Victim had jumped out of the truck, he did not stop at or near the

1 scene to investigate Victim's condition, report the incident, provide identification,
2 or render assistance. According to Defendant, he continued driving and turned
3 around at the next intersection, but as he drove past the area where Victim had
4 jumped out, he believed he saw her sitting up on the sidewalk with people around
5 her. Instead of stopping, Defendant departed the area. Defendant then called Steve
6 to ask that he pick up Victim, explaining that she "freaked out[,]" "started punching
7 [Defendant]," "jumped out of the truck[,]" and "was [now] sitting up ... on the
8 curb." Steve told Defendant, "Don't worry about it." He and Samantha would pick
9 Victim up and "give her a ride home."
10 	{4} 	When Steve and Samantha arrived at the scene about ten minutes after
11 	Defendant's call, there were multiple police officers at the scene, and there was a
12 blanket over Victim. Based on witness testimony, it came to light that when Victim
13 jumped out of Defendant's truck, she fell to the ground, and the truck's rear
14 passenger tire ran over her head, crushing her skull and killing her instantly, after
15 	which her body rolled toward the curb in the far right lane. After the incident,
16 Defendant told the investigating officer that he did not know that he had run over
17 Victim and did not learn that Victim had died until the following day.
18 	{5} 	In June 2016 Defendant was charged with knowingly leaving the scene of an
19 	accident resulting in great bodily harm or death, contrary to Section 66-7-201(A),
20 (C), and alternatively, the lesser charge of leaving the scene of an accident resulting
2

1 in great bodily harm or death, contrary to Section 66-7-201(A), (B). At trial, a
2 motorist who witnessed the entire incident from thirty yards away testified that
3 Defendant appeared to be driving the speed limit of forty miles per hour and did not
4 exhibit any signs of unusual driving or swerving. Thereafter, the investigating officer
5 testified that he did not have any evidence that would contradict the motorist-
6 witness's testimony regarding Defendant's driving or his speed and that Defendant's
7 statements were consistent with information from other sources. The investigating
8 officer also testified that Defendant told him that, on previous occasions, Victim had
9 jumped out of the vehicle abruptly, but only when the vehicle was stopped, and
10 Defendant's attempts to speak with Victim on those occasions "didn't go well."
11 	{6} 	The medical examiner thereafter testified that he determined the cause of
12 Victim's death was a blunt head injury, but he was unable to determine whether the
13 	manner of death was an accident, homicide, or suicide. An expert in accident
14 reconstruction testified that it was unusual that Victim's body fell underneath
15 	Defendant's vehicle, but not unusual that Defendant may not have felt a noticeable
16 vibration when his vehicle went over Victim's body considering he drove a 5,400
17 pound truck and there are asphalt and concrete cracks on Lomas Boulevard. The
18 	expert further testified that any driver may have attributed such vibration to normal
19 driving conditions. However, the expert also admitted that it was more likely than
20 	not that an individual who jumps out of a moving vehicle would be injured, but that
3

1 the extent of the injury would depend on how the individual lands. Following a three-
2 day trial, the jury convicted Defendant of the lesser charge of leaving the scene of
3 	an accident resulting. in great bodily ha:rm or death, a fourth degree felony, and
4 Defendant was sentenced to a term of incarceration of eighteen months, of which
5 nine 	months 	were 	suspended, 	for 	a 	total 	incarceration term 	of nine 	months.
6 Defendant appeals from his conviction.
7 DISCUSSION
8 I.
9
10 	{7}
The District Court Did Not Err in Its Instruction Regarding Leaving the
Scene of an Accident
Defendant's primary argument on appeal is that the given jury instruction for
11 	leaving the scene of an accident was improper because it failed to define what
12 constitutes an "accident." The parties stipulated that a conviction for leaving the
13 	scene of an accident requires, as a threshold matter, that Defendant knew he was
14 involved in an accident. Defendant contends an accident is limited to circumstances
15 	in which a driver is aware that his or her vehicle collided with or struck another
16 vehicle, person, stationary object, or animal, and that a definitional instruction was
17 necessary to ensure that the jury understood such. Because we conclude that the term
18 	accident encompasses a circumstance where a passenger jumps from a moving
19 vehicle, we disagree.
4

1 {8} 	Section 66-7-201(A) provides:
2 	The driver of any vehicle involved in an accident resulting in injury to
3 	or death of any person shall immediately stop the vehicle at the scene
4 	of the 	accident 	or 	as 	close 	thereto 	as 	possible, 	but 	shall 	then
5 	immediately return to and in every event shall remain at the scene of
6 	the accident until he has fulfilled the requirements of [NMSA 1978,]
7 	Section 66-7-203 [(1978)]. 1
8 (Emphasis added.) Defendant was convicted of violating Subsection (B) of Section
9 66-7-201, which makes it a fourth degree felony to fail to stop or to comply with the
10 requirements of Section 66-7-203, "where the accident results in great bodily harm
11 	or death." Section 66-7-201(B).
12 	{9} 	Because there are no uniform jury instructions for the crimes that Section 66-
13 	7-201 	defines, 	the 	State and Defendant proposed competing instructions, 	and
14 ultimately, the district court gave the following instruction for the offense for which
15 	Defendant was convicted:
16
17
1. 	[D]efendant was the driver of a motor vehicle involved in an
accident which resulted in the death of [Victim]; ·
1
Section 66-7-203 further provides that "[t]he driver of any vehicle involved
in an accident resulting in injury to or death of any person or damage to any vehicle
which is driven or attended by any person shall give his name, address and the
registration number of the vehicle he is driving and shall upon request exhibit his
driver's license to the person struck or the driver or occupant of or person attending
any vehicle collided with and shall render to any person injured in such accident
reasonable assistance, including the carrying, or the making of arrangements for the
carrying, of such person to a physician, surgeon or hospital for medical or surgical
treatment if it is apparent that such treatment is necessary or if such carrying is
requested by the injured person." (Emphasis added.)
5

1
2
3
4
5
2.
3.
[D]efendant knew that there was an accident;
[D]efendant knowingly failed to stop his vehicle at the scene of
the accident or as close as possible without obstructing traffic
more than necessary, [and] knowingly failed to comply with the
requirements of ... Section 66-7~203[.]2
6 {10} 	Defendant's proposed instructions were materially the same except for the
7 second element: instead of stating, "[D]efendant knew there was an accident[,]" the
8 proposed instructions attempted to define what constituted the accident, stating,
9 "[D]efendant knowingly 	collided with 	or otherwise 	injured another person/or
10 	[D]efendant knew that there was an accident that occurred involving his car and
11 	[Victim]" and "the accident resulted in great bodily harm or death to [Victim]." After
2We note that the parties stipulated at trial that knowledge of the accident and
"knowingly fail[ing] to stop" were required for conviction under Subsection (B). The
language of the statute does not support such a requirement for a conviction under
Subsection (B). Section 66-7-201(A) sets.out an obligation to stop when a driver is
"involved in an accident[,]" but Section 66-7-201(A) and (B) are silent as to the
requisite mens rea. While we express our doubt as to this aspect of the parties'
interpretation of the statute, we need not consider this further because the jury indeed
found that Defendant knew he was involved in an accident and that he knowingly
failed to stop, thereby satisfying a stricter burden of proof than that seemingly
required by the statute. See Jackson v. State, 1983-NMSC-098, 118, 100 N.M. 487,
672 P.2d 660 	("[T]here was no prejudice to 	the 	defendant because the jury
instruction given without objection required a stricter burden of proof."). Moreover,
since the parties have not briefed this issue for our review, we decline to address the
issue on the merits. See Elane Photography, LLC v. Willock, 2013-NMSC-040, 170,
309 P.3d 53 ("It is of no benefit either to the parties or to future litigants for [an
appellate court] to promulgate case law based on [its] own speculation rather than
the parties' carefully considered arguments."). Accordingly, we need not further
discuss any error pertaining to this issue.
6

1 lengthy discussion regarding the statute and the appropriate jury instruction, the
2 district court declined to include Defendant's proposed language.
3 	{11} 	Since the issue was preserved, we review the jury instructions for reversible
4 error. See State v. Benally, 2001-NMSC-033,, 12, 131 N.M. 258, 34 P.3d 1134
5 ("The standard of review we apply to jury instructions depends on whether the issue
6 has been preserved. If the error has been preserved we review the instructions for
7 reversible error."). Our inquiry seeks "to determine whether a reasonable juror
8 would have been confused or misdirected by the jury instruction[,]" and whether the
9 instruction "through omission or misstatement, fail[s] to provide the juror with an
10 accurate rendition of the relevant law." State v. Luna, 2018-NMCA-025,, 19, _
11 	P.3d _ 	(internal quotation marks and citations omitted). "The propriety of jury
12 instructions given ... is a mixed question of law and fact[,]" which we review de
13 	novo. 	State v. 	Lucero, 2010-NMSC-Oll, , 	11, 147 N.M. 747, 228 P.3d 1167
14 (internal quotation marks and citation omitted). Moreover, "[w]hen evidence at trial
15 	supports the giving of an instruction on a defendant's theory of the case, failure to
16 so instruct is reversible error." State v. Brown, 1996-NMSC-073, , 	34, 122 N.M.
17 724, 931 P.2d 69.
18 	{12} 	The term "accident" is not defined within the definition section of the New
19 Mexico Motor Vehicle Code, and our courts have yet to define the word; therefore,
20 the question before us is one of first impression. See NMSA 1978, §§ 66-1-1 to -5
7

1 (1978, as amended through 2019); see also§ 66-7-203 (requiring a driver to give
2 information and render aid when involved in an accident resulting in injury to or
3 death of any person or damage to any vehicle). "The meaning of language used in a
4 statute is a question of law that we review de novo." State v. McWhorter, 2005-
5 NMCA-133, 15, 138 N.M. 580, 124 P.3d 215_. "Our primary goal when interpreting
6 statutory language is to give effect to the intent of the [L]egislature." State v. Torres,
7 2006-NMCA-106, 18, 140 N.M. 230, 14.1 P.3d 1284. We accomplish such by giving
8 effect to the ordinary and plain meaning of the words of statute, unless this leads to
9 an absurd or unreasonable result and "unless the [L ]egislature indicates a different
10 	interpretation is necessary." McWhorter, 2005-NMCA-133, 15. "If the language of
11 	the statute is clear and unambiguous, we must give effect to that language and refrain
12 from further statutory interpretation." Id. 	However, "[i]f the relevant statutory
13 	language is unclear, ambiguous, or reasonably subject to multiple interpretations,
14 then the Court should proceed ... [to consider] the history, background, and overall
15 	structure of the statute, as well as its function within a comprehensive legislative
16 	scheme." 	State 	v. 	Almanzar, 	2014-NMSC-001, 	1 	15, 	316 P.3d 	183 	(internal
17 quotation marks and citations omitted).
18 	{13} 	Defendant's challenge to the jury instruction requires us to interpret the phrase
19 "involved in an accident" under Section 66-7-201(A). Defendant urges us to equate
20 "accident" 	with 	"collision"-a 	construction 	that 	is 	consistent 	with 	the 	jury
8

1 instruction he proposed and his defense that he did not know that his vehicle had
2 collided with Victim. The State, in contrast, argues that "accident" should be
3 construed more broadly and that the given jury instruction was adequate.
4 	{14} 	To determine the appropriate construction, we first consider the ordinary and
5 plain meaning of the term "accident." See McWhorter, 	2005-NMCA-133, 15.
6 Black's Law Dictionary (Black's) 	defines "accident" as "[a]n unintended and
7 unforeseen injurious occurrence; something that does not occur in the usual course
8 of events or that could not be reasonably anticipated [and] any unwanted or harmful
9 event occurring suddenly, as a collision, spill, fall, or the like, irrespective of cause
10 or blame." Black's Law Dictionary (11th ed. 2019). However, Black's also defines
11 	"automobile accident" and "car accident" as "[a]n accident in which a motor vehicle
12 collides with another vehicle or with a person, animal, or object~ usu[ally] causing
13 	damage or injury." Id. 	(emphasis added). Notably, Section 66-7-201(A) uses the
14 broader language of "involved in an accident[,]" instead of specifying a motor
15 	vehicle accident, signaling the Legislature's intent to cover more than a vehicle
16 	colliding with something. The Legislature's choice of the general tenn "accident"
17 rather than a more specific term (car, automobile, or motor vehicle accident)
18 	indicates that it did not intend the narrow construction Defendant urges us to adopt.'
19 See State v. Ramos, 2013-NMSC-031, 115,305 P.3d 921 (observing that when the
20 Legislature knew how to include something, and did not, we assume the choice was
9

1 deliberate); State v. Hubble, 2009-NMSC-014, ,110, 146 N.M. 70, 206 P.3d 579
2 (noting that "[w]e will not read into a statute language which is not there"). Thus,
3 	our view is that the plain meaning of the language within the context of the statute
4 	as a whole applies to more than collisions. 3
5 {15} 	Even if we assume for purposes of discussion that the term "accident" is
6 susceptible to different interpretations, the statute's history and purpose require us
7 to reject Defendant's interpretation. See Almanzar, 2014-NMSC-001, ,1 15. Our hit
8 and run statute, Section 66-7-201, is derived from the Section 10-102(a) of the
-
9 Uniform Vehicle Code (UVC), which states:
10
11
12
13
14
15
The driver of any vehicle involved .in an accident resulting in injury to
or death of any person shall immediately stop such vehicle at the scene ·
of such accident or as close thereto as possible but shall then forthwith
return to and in every event shall remain at the scene of the accident
until such driver has fulfilled the requirements of§ 10-104. Every such
stop shall be made without obstructing traffic more than is necessary.
16 National Committee on Uniform Traffic Laws & Ordinances (NCUTLO), Uniform
17 	Vehicle 	Code 	& 	Model 	Traffic 	Ordinance 	ch. 	10, 	§ 	10-102(a), 	(2000),
18 	http://iamtraffic.org/wp-content/uploads/2013/01/UVC2000.pdf. An annotation to
19 UVC Section 10-102 further explains that New Mexico, along with thirty-one other
3
Defendant also argues that Sections 66-7-201 and 66-7-203 should be read
together 	as 	supporting his 	contention that 	an 	accident requires 	a 	"collision."
However, contrary to Defendant's argument, Section 66-7-203 does not specify that
an accident requires a collision; instead, the statute outlines the obligation to provide
information in the event of a collision as well as the duty to render reasonable
assistance in the event a person is injured.
10

1 states, enacted the statute in verbatim or in substantial conformity with UVC § 10-
2 	102. Traffic Laws Annotated (TLA) § 10-102, at 30 (1979). Only Kentucky and
3 Massachusetts modified the statutory language to "require stops only by drivers
4 whose vehicles actually collide with other vehicles or persons, while the [UVC]
5 requires such stops by any driver 'involved' in an accident, even though there is no
6 collision or striking of another vehicle or person." Id. at 29. Our Legislature elected
7 not to modify our statute in such a manner, which indicates that it intended for the
8 statute to apply more broadly. See Ramos, 2013-NMSC-031, 115.
9 	{16} 	Our interpretation of "involved in an accident" also recognizes that the
10 underlying policy objectives of our hit-and-run statutes are to prohibit drivers from
11 	evading criminal or civil liability, to ensure people receive necessary aid or medical
12 attention, and to 	deter drivers from thwarting or impeding investigations and
13 	avoiding liability for the harm they cause by failing to stop or failing to comply with
14 	Section 66-7-203. See Wylie v. State, 797 P.2d 651, 657-58 (Alaska Ct. App. 1990)
15 	(interpreting statutory phrase "involved in an accident" broadly based in part on
16 recognition that the purposes of hit-and-run statute include preventing drivers from
17 evading civil and criminal liability by escaping before their identities can be
18 	established and protecting injured persons from distress or danger due to lack of
19 treatment); 	State 	v. 	Rodgers, 	909 	P.2d 	445, 	446-49 	(Ariz. 	Ct. 	App. 	1995)
20 (interpreting statutory phrase "involved in an accident," rejecting construction
11

1 limiting scope to collisions, and recognizing that hit-and-run statute is designed to
2 prevent drivers from thwarting investigations and evading civil or criminal liability
3 and to ensure that injured victims receive aid immediately). We would undermine
4 these objectives by construing the term "accident" to include only collisions, thereby
5 excluding other types of accidents that seriously injure or, as in this case, kill a
6 person.
7 {17} 	We also find persuasive the decisions of other courts in states with hit-and-
8 run statutes nearly identical to New Mexico's. See TLA § 10-102 at 30. Courts in
9 those states have rejected overly narrow constructions of the sort advanced by
10 Defendant. In Rodgers, 909 P.2d at 446, the defendant's hit-and-run conviction was
11 	based on him leaving the scene when a passenger in his vehicle jumped out of his
12 vehicle, which was traveling over fifty miles per hour, and suffered a fatal head
13 	injury from either her fall or from being run over by a second vehicle. The Arizona
14 Court of Appeals held that the text of its hit-and-run statute "does not support the
15 	assertion that the statutory duties are triggered only by the occurrence of a collision"
16 and concluded that "the defendant was 'involved in an accident' from the moment
17 the victim leapt from [the defendant's] car." Id. at 448; see Sheldon v. State, 100
18 	S.W.3d 497, 501-02 (Tex. App. 2003) (rejecting the defendant's argument that he
19 was not involved in an accident because the victim's death was not caused by a
20 collision).
12

1 {18} 	Based on the plain meaning of the term, the history of Section 66-7-201, the
2 purposes of the hit-and-run statute, and guidance from courts in other jurisdictions,
3 we conclude that the Legislature intended for the term "accident" to have a broader
4 meaning than "collision." 4 See State v. Lovato, 2011-NMCA-065, 116, 150 N.M. '
5 39,256 P.3d 982 ("When this Court engages in the judicial construction of a statute
6 it is explaining its understanding of what the statute has meant continuously since
7 the date when it became law." (internal quotation marks and citation omitted)).
8 Accordingly, the district court did not err by refusing to give Defendant's proposed
9 instruction, which purported to limit the definition of accident to collision. Rather
10 than preventing the jury from being confused and misled, Defendant's proposed
11 	instruction would itself have confused and misled the jury.
12 II. 	The 	State 	Presented 	Sufficient 	Evidence 	to 	Support 	Defendant's
13 	Conviction
14 	{19} 	Defendant further contends that his conviction for leaving the scene of an
15 	accident is not supported by sufficient evidence because "[t]here was absolutely no
4We decline Defendant's invitation to apply the rule of lenity because his
argument does not involve an "insurmountable ambiguity" pertaining to 	''the
intended scope of [the hit-and-run] statute." State v. Johnson, 2009-NMS~-049,
118, 147 N.M. 177,218 P.3d 863 (internal quotation marks and citation omitted).
"[L]enity is reserved for those situations in which a reasonable doubt persists about
a statute's intended scope even after resort to the language and structure, legislative
history, and motivating policies of the statute." Id. 	(emphasis, internal quotation
marks, and citation omitted). No such situation exists here.
13

1 evidence presented that Defendant had any knowledge that his car was in a collision
2 with the [V]ictim or that his car 'struck' the [V]ictim." We disagree.
3 	{20} 	_We review a challenge to the sufficiency of the evidence to determine
4 "whether substantial evidence of either a direct or circumstantial nature exists to
5 support a verdict of guilty beyond a reasonable doubt with respect to every element
6 essential to a conviction.'~ State v. Montoya, 2015-NMSC-010, 152, 345 P.3d 1056
7 (internal quotation marks and citation omitted). The reviewing court "view[ s] the
8 evidence in the light most favorable to the guilty verdict, indulging all reasonable
9 inferences and resolving all conflicts in the evidence in favor of the verdict." State
10 v. Cunningham, 2000-NMSC-009, 126, 128 N.M. 711,998 P.2d 176. "Our appellate
11 	courts will not invade the jury's province as fact-finder by second-guessing the
12 jury's decision concerning the credibility of witnesses, reweighing the evidence, or
13 	substituting its judgment for that of the jury." State v. Gwynne, 2018-NMCA-033,
14 149, 417 P.3d 1157 (internal quotation marks and citation omitted), cert. denied,
15 	_-NMCERT-_ (No. S-l-SC-36926, Apr. 10, 2018). "Jury instructions become
16 the law of the case against which the sufficiency of the evidence is to be measured."
17 State v. Smith, 1986-NMCA-089, 17, 104 N.M. 729, 726 P.2d 883.
18 	{21} 	Per its instructions, in order to convict Defendant of leaving the scene of an
19 accident, the jury had to find that: (1) "[D]efendant was the driver of a motor vehicle
20 involved in an accident which resulted in the death Qf [Victim]"; (2) "[D]efendant
14

1 knew that there was an accident"; and (3) "[D]efendant knowingly failed to stop his
2 vehicle at the scene of the accident or as close as possible without obstructing traffic
3 more than necessary, [and] knowingly failed to comply with the requirements of ...
4 	Section 66-7-203."
5 	{22} 	The testimonial evidence at trial conclusively established the only element
6 challenged on appeal: whether Defendant knew his vehicle was involved in an
7 accident. Indeed, Defendant admitted that he was aware that Victim jumped from
8 his vehicle while it was traveling approximately forty miles per hour-an event that
9 qualifies as an accident for purposes of New Mexico's hit-and-run statute. Because
10 a reasonable juror could conclude that Defendant was "involved in an accident," we
11 	must reject Defendant's claim that the evidence is not sufficient to support his
12 conviction.
13 	CONCLUSION
14 	{23} 	For these reasons, we affirm Defendant's conviction.
15 	{24}
16
17
IT IS SO ORDERED.
15
, 	.
}'•~
· J. MILES HANISEE, Chief Judge

—

A

WE CONCUR:

v

MEGAN P. DU

udge

Pe

A.I

S, Judge

16