November 15, 2022- State of New Mexico v. Shawn D. Doyal, No. A-1-CA-39723

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: ________________	2
Filing Date: November 15, 2022	3
No. A-1-CA-39723	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
SHAWN D. DOYAL,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY	10
Steven Blankinship, District Judge	11
Hector H. Balderas, Attorney General	12
Laurie Blevins, Assistant Attorney General	13
Santa Fe, NM	14
for Appellee	15
Gary C. Mitchell, P.C.	16
Gary C. Mitchell	17
Ruidoso, NM	18
for Appellant	19
Court of Appeals of New Mexico
Filed 11/15/2022 9:59 AM

OPINION	1
BOGARDUS, Judge.	2
{1} 	Defendant Shawn D. Doyal appeals his conviction for great bodily injury by	3
vehicle (reckless driving), contrary to NMSA 1978, Section 66-8-101(E) (2016).	4
Defendant argues (1) the district court erred in failing to give Defendant’s requested	5
jury instructions; (2) the evidence was insufficient to support his conviction; and (3)	6
the district court erred in the manner in which it seated the witnesses and the jury	7
during the trial due to COVID-19 considerations. We affirm.	8
BACKGROUND	9
{2} 	Defendant lost control of his truck as he was driving through Cloudcroft, New	10
Mexico, and struck an oncoming car causing serious injuries to both the victims, one	11
on the driver’s side and the other, on the passenger’s side. Defendant was unfamiliar	12
with the road, driving it for the first time the night of the accident. Defendant drove	13
through the populous part of Cloudcroft at the speed limit, but as soon as he left the	14
area, he accelerated from thirty-five to sixty-six miles per hour over a one-half-mile	15
stretch of the highway. Defendant testified that he had seen elk and deer both on and	16
beside the road. The section of the road was curvy and mountainous, and there were	17
numerous signs along the roadside describing dangerous conditions and notifying	18
drivers of the reduced speed limit. These signs included three thirty-five mile-per-	19
hour speed limit signs, a safety corridor sign, a sign recommending truckers to use a	20
lower gear because of a six percent downgrade, and a sign warning of a sharp,	21

2
fishhook-shaped curve ahead. Defendant drove into the fishhook-shaped curve, lost	1
control of his vehicle, crossed into the oncoming lane, and struck the driver’s side	2
of the victims’ car. Both victims, a husband and wife, were injured; the wife, who	3
was the driver, suffered great bodily harm, including permanent injuries.	4
{3} 	The State charged Defendant with one count of great bodily harm by vehicle	5
due to reckless driving, one count of driving on the wrong side of the road, and one	6
count of speeding. The trial took place during the COVID-19 pandemic, in a small	7
courtroom where the witnesses, the victims, and spectators sat among the jurors.	8
Everyone sat six feet apart and wore a mask due to social distancing guidelines in	9
effect at the time.	10
{4} 	At the close of the State’s case, Defendant moved for directed verdict, arguing	11
that speeding alone is insufficient to prove willful and wanton disregard of the safety	12
of others. The district court denied the motion. Further, Defendant requested that the	13
district court give two special jury instructions, which deviated from the uniform	14
jury instructions. Defendant’s requested Jury Instruction No. 4 informed the jury that	15
speeding is insufficient to constitute reckless driving. Defendant’s requested Jury	16
Instruction No. 5 modified the term “reckless” as defined by UJI 14-241 NMRA.	17
The district court refused both of Defendant’s requested jury instructions.	18
{5} 	The jury found Defendant guilty on all counts. Defendant then moved to set	19
aside the verdict and for a new trial by renewing his motions made at trial,	20

3
“especially [those] considering jury instructions and directed verdict,” and further	1
argued that jury intimidation and influence took place when witnesses sat among the	2
jury. The district court denied Defendant’s motion in a thorough written order.	3
Defendant appeals.	4
DISCUSSION	5
I. 	The 	District 	Court Did 	Not 	Err 	in 	Refusing 	to 	Give Defendant’s	6
Requested Jury Instructions	7
{6} 	Defendant argues that the district court erred when it refused to give	8
Defendant’s requested jury instructions. “The propriety of denying a jury instruction	9
is a mixed question of law and fact that we review de novo.” State v. Gaines, 2001-	10
NMSC-036, ¶ 4, 131 N.M. 347, 36 P.3d 438. “There is a presumption of correctness	11
in the district court’s rulings. Accordingly, it is [the d]efendant’s burden on appeal	12
to demonstrate any claimed error below.” State v. Aragon, 1999-NMCA-060, ¶ 10,	13
127 N.M. 393, 981 P.2d 1211 (alterations, internal quotation marks, and citation	14
omitted). Jury instructions must present the law fairly and accurately. See Gonzales	15
v. N.M. Dep’t of Health, 2000-NMSC-029, ¶ 28, 129 N.M. 586, 11 P.3d 550. When	16
a uniform jury instruction exists, as in this case, the district court must use the	17
instruction without substantive modification. State v. Caldwell, 2008-NMCA-049,	18
¶ 24, 143 N.M. 792, 182 P.3d 775. The district court does not err when it declines to	19
use “an instruction that is confusing or misleading.” State v. Soutar, 2012-NMCA-	20
024, ¶ 21, 272 P.3d 154. We consider each requested instruction in turn.	21

4
A. 	Defendant’s Requested Jury Instruction No. 4	1
{7} 	The district court refused Defendant’s requested Jury Instruction No. 4, which	2
would have instructed the jury that “speeding alone is insufficient to constitute	3
reckless driving.” Defendant requested the instruction based on State v. Munoz,	4
which held that “speeding alone is insufficient to constitute recklessness.” 2014-	5
NMCA-101, ¶ 10, 336 P.3d 424.	6
{8} 	Defendant argues that by refusing to give this instruction the district court	7
“fail[ed] to let [the jury] know what the law is.” We disagree. Our Supreme Court	8
resolved this issue in State v. Simpson, 1993-NMSC-073, 116 N.M. 768, 867 P.2d	9
1150. In Simpson, the defendant argued that the district court erred in declining his	10
requested instruction, which stated in part, “a violation of speeding law is not in and	11
of itself sufficient to find the defendant was driving recklessly.” Id. ¶ 20 (alteration	12
and internal quotation marks omitted). Instead, the district court provided an	13
instruction practically identical to the one provided to the jury here. See id. ¶ 21	14
(instructing the jury that “to find that the defendant was driving recklessly, [the jury]	15
must find that [the defendant] drove with willful disregard of the rights or safety of	16
others and at a speed or in a manner which endangered or was likely to endanger any	17
person or property” (emphasis and internal quotation marks omitted)). Our Supreme	18
Court held that it was unnecessary for the district court to give the defendant’s	19
requested instruction because the district court had already instructed the jury that	20

5
speeding alone was insufficient to establish reckless driving. Id. The Supreme Court	1
emphasized that the jury instruction that was given required the prosecution to meet	2
two elements: “willful disregard of the rights or safety of others” and speeding. Id.	3
(internal quotation marks omitted). The two elements in the instruction made it clear	4
to the jury that something besides speeding was required to convict the defendant.	5
See id.	6
{9} 	The same reasoning applies here. Pursuant to UJI 14-241, the district court	7
instructed the jury that “[f]or you to find that [D]efendant operated a motor vehicle	8
in a reckless manner, you must find that [D]efendant drove with willful disregard of	9
the safety of others and at a speed . . . likely to endanger any person.” (Emphasis	10
added.) Thus, the district court instructed the jury that to find Defendant guilty of	11
reckless driving, it had to find, in addition to speeding, that Defendant “drove with	12
willful disregard of the safety of others.” Accordingly, the district court did not err	13
in denying Defendant’s requested Jury Instruction No. 4.	14
B. 	Defendant’s Requested Jury Instruction No. 5	15
{10} 	The district court also refused Defendant’s requested Jury Instruction No. 5,	16
which modified UJI 14-241. Defendant contends that his modification uses the	17
proper criteria and includes elements required by statute and case law that the district	18
court ignored and that UJI 14-241 does not contain. We disagree.	19

6
{11} 	Defendant’s proposed instruction sought to add the following language to UJI	1
14-241:	2
[D]efendant knew or should have known [his] conduct created a	3
substantial and foreseeable risk, [he] disregarded that risk[,] and [he]	4
was wholly indifferent to the consequences of the conduct and to the	5
welfare and safety of others.	6
Ordinary negligence or careless driving is not a willful disregard	7
of the safety of others.	8
Defendant contends his proposed modification to UJI 14-241 more accurately	9
presents the state of mind requirement as stated in Valencia v. Dixon, 1971-NMCA-	10
108, 83 N.M. 70, 488 P.2d 120. Further, Defendant argues that UJI 14-241, unless	11
modified, fails to present to the jury the element of “conscious wrongdoing” as	12
required by State v. Yarborough, 1996-NMSC-068, ¶ 22, 122 N.M. 596, 930 P.2d	13
131, and State v. Omar-Muhammad, 1985-NMSC-006, ¶¶ 20-22, 102 N.M. 274, 694	14
P.2d 922.1
15
{12} 	Defendant fails to explain how Valencia modifies the recklessness standard	16
used in UJI 14-241. Valencia is a civil case where this Court reversed a grant of	17
directed verdict for the plaintiff and concluded that the defendant’s guilty plea for	18
1 Defendant also argues that the element of due caution and circumspection in
NMSA 	1978, 	Section 	66-8-113 	(1987) 	creates 	a 	requirement 	of 	subjective
knowledge by a defendant of the danger or risk involved to others by his actions.
However, this argument was only raised in the reply brief, therefore we do not
address it. See Guest v. Berardinelli, 2008-NMCA-144, ¶ 36, 145 N.M. 186, 195
P.3d 353 (“[W]e do not consider arguments raised in a reply brief for the first time.”).

7
reckless driving, together with other facts and circumstances, created an issue of fact	1
regarding whether the defendant was heedless or reckless in operating his vehicle	2
pursuant to the automobile guest statute. 1971-NMCA-108, ¶ 14. In so ruling, this	3
Court identified the defendant’s state of mind to be the distinguishing factor between	4
negligence and reckless disregard. Id. ¶ 17. “To be heedless or reckless, evidence	5
must show that this particular state of mind is one of utter irresponsibility or	6
conscious abandonment of any consideration for the safety of [others].” 	Id.	7
Consistent with the holding in Valencia, the district court’s instruction here required	8
the jury to find that Defendant “drove with willful disregard of the safety of others.”	9
See UJI 14-241. The instruction given therefore required the State to prove a state of	10
mind beyond civil negligence—one where Defendant acted with a conscious	11
disregard of the safety of others.	12
{13} 	As to Defendant’s argument that the instruction given by the district court was	13
insufficient because it failed to convey the element of conscious wrongdoing,	14
Defendant ignores Jury Instruction No. 10, which instructed the jury that to find	15
Defendant guilty, the State must prove beyond a reasonable doubt that “[D]efendant	16
acted intentionally when he committed the crime.” 	See 	UJI 14-141 NMRA.	17
Conscious wrongdoing is “the purposeful doing of an act that the law declares to be	18
a crime.” State v. Brown, 1996-NMSC-073, ¶ 22, 122 N.M. 724, 931 P.2d 69	19
(internal 	quotation 	marks 	and 	citation 	omitted). 	Considered 	together, 	Jury	20

8
Instructions Nos. 6 and 10 fairly and accurately present the law. Accordingly,	1
Defendant has failed to meet his burden to demonstrate that the district court erred	2
in refusing to give Defendant’s requested Jury Instruction No. 5.	3
II. 	The Evidence Was Sufficient to Support Conviction for Great Bodily	4
Harm by Reckless Driving	5
{14} 	Defendant challenges the sufficiency of the evidence regarding recklessness,	6
claiming that his only transgression was to drive too fast, which is insufficient to	7
prove he acted in a reckless manner. We conclude that the State provided sufficient	8
evidence, beyond Defendant’s act of speeding, for a rational jury to find that	9
Defendant drove in a reckless manner.	10
{15} 	“The test for sufficiency of the evidence is whether substantial evidence of	11
either a direct or circumstantial nature exists to support a verdict of guilty beyond a	12
reasonable doubt with respect to every element essential to a conviction.” State v.	13
Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and	14
citation omitted). “Substantial evidence is relevant evidence that a reasonable mind	15
might accept as adequate to support a conclusion.” Id. ¶ 53 (alteration, internal	16
quotation marks, and citation omitted). When reviewing for substantial evidence, we	17
“view[] the evidence in the light most favorable to the guilty verdict, indulging all	18
reasonable inferences and resolving all conflicts in the evidence in favor of the	19
verdict.” Id. ¶ 52 (internal quotation marks and citation omitted). We also disregard	20
all evidence and inferences that support a different result. See State v. Rojo, 1999-	21

9
NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. With these principles in mind, we	1
consider whether the jury “could have found the essential elements of the crime	2
beyond a reasonable doubt.” State v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d 409	3
(internal quotation marks and citation omitted).	4
{16} 	We measure the sufficiency of the evidence against the jury instructions given,	5
which become the law of the case. See State v. Jackson, 2018-NMCA-066, ¶ 22, 429	6
P.3d 674. The district court instructed the jury that a conviction for great bodily harm	7
by reckless driving required a finding that Defendant “operated a motor vehicle . . .	8
in a reckless manner” and further defined reckless as driving with “willful disregard	9
of the safety of others and at a speed or in a manner that endangered or was likely to	10
endanger any person.” See UJI 14-240D NMRA; UJI 14-241.	11
{17} 	Defendant concedes that he was speeding, but argues that “speeding alone is	12
insufficient to constitute recklessness.” See Munoz, 2014-NMCA-101, ¶ 10. We	13
agree with this general statement, however, speeding is just one factor for the jury	14
to consider when addressing whether a defendant acted recklessly. See id. ¶ 13.	15
{18} 	Defendant cites a number of cases in which a driver was convicted of reckless	16
driving that he contends contain facts “far worse than [the facts] here.” Nonetheless,	17
our jurisprudence supports a totality of the circumstances approach in which a jury	18
considers all contributing factors to determine whether a defendant acted recklessly.	19
See id. (holding that speeding “is one of many other contributing factors for the jury	20

10
to consider when addressing whether [the d]efendant acted recklessly”). In assessing	1
the totality of the circumstances, we look to “a driver’s actions leading up to the	2
collision . . . as a factor contributing to recklessness.” Id.	3
{19} 	For example, in State v. Sandoval, 1975-NMCA-096, ¶ 7, 88 N.M. 267, 539	4
P.2d 1029, the defendant’s driving speed in excess of the legal speed limit, the	5
heavily trafficked street where the accident took place, the defendant’s actions	6
before the accident,2 and the fact that the defendant had been drinking, considered	7
together was sufficient evidence to support the defendant’s conviction of driving	8
recklessly. Similarly, in Munoz, 2014-NMCA-101, ¶ 1, this Court concluded that the	9
defendant disregarding a police warning to slow down, veering his vehicle into the	10
crash zone, laughing, and speeding provided sufficient evidence for a rational jury	11
to find that the defendant acted recklessly.	12
{20} 	The circumstances presented to the jury in this case, particularly those actions	13
leading up to the collision, were also sufficient to establish recklessness. Before the	14
collision, Defendant encountered numerous signs warning him of the danger of the	15
road ahead. Further, Defendant testified that he was unfamiliar with the road, that it	16
was already dark, and that he was wary of deer and elk on the road. The curvy road	17
2 The defendant in Sandoval “revved up his engine, slammed on his breaks,”
“engaged in showing off of a ‘hot-rod’ type vehicle,” and would “rev up and slow
down the engine and attempt to ‘leave rubber’ when he passed young members of
the opposite sex.” Id.

11
only had two lanes, with no passing lane, and a mountain on one side of the road	1
with a guardrail on the other to prevent vehicles from going over the drop-off.	2
Despite these circumstances, Defendant accelerated from thirty-five to sixty-six	3
miles per hour over a one-half-mile stretch of the highway leading to the curve. The	4
fact that the collision occurred immediately after passing all the warning signs, that	5
it was already dark, and that Defendant was unfamiliar with the road are compelling	6
circumstances from which a reasonable jury could infer that Defendant was not only	7
speeding but that he also willfully disregarded the warnings and the condition of the	8
roadway. It was also reasonable for the jury to find that disregarding the warnings	9
and the hazardous road terrain while accelerating to almost twice the speed limit	10
constituted a disregard for the rights and safety of others.	11
{21} 	Defendant argues that the excessive number of signs on the highway were not	12
a warning as to the danger of the road ahead, but rather a distraction; moreover, the	13
guardrail and a cut in the trees created the appearance that the road went straight.	14
However, having heard Defendant’s explanation, we presume that the jury found	15
otherwise, and we decline to reweigh the evidence. See Rojo, 1999-NMSC-001, ¶ 19	16
(noting that “the jury is free to reject [the d]efendant’s version of the facts”).	17
{22} 	Thus, viewing all evidence in the light most favorable to the verdict, and	18
disregarding contrary evidence and inferences, we conclude that there was sufficient	19
evidence to support Defendant’s convictions for great bodily harm by reckless	20

12
driving. See State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d	1
176.	2
III. 	The District Court Did Not Err in the Manner in Which It Seated	3
Witnesses and the Jury Due to COVID-19 Considerations	4
{23} 	Because of the COVID-19 pandemic, the district court took numerous actions	5
to 	implement 	precautionary measures designed 	to 	keep 	court 	staff and 	trial	6
participants safe. One such measure during trial was special seating in the gallery of	7
the courtroom in order to accommodate safe social distancing. Jurors, witnesses, and	8
spectators were all seated in the gallery, with the caveat that the individuals would	9
be 	socially 	distanced, 	wearing 	facemasks, 	which 	would 	conceal 	any 	facial	10
expressions, and seated in a forward-facing manner. After the jury found Defendant	11
guilty, Defendant moved to set aside the jury verdict and for a new trial, arguing that	12
the seating arrangement violated his right to a fair trial under both the federal and	13
state Constitutions. The district court denied the motion, and Defendant appeals,	14
arguing that by seating the victims, witnesses, and spectators in the same courtroom	15
area as the jurors, the district court deprived him of a “fair trial by an impartial jury.”	16
However, as we explain, Defendant failed to preserve this issue during trial, and the	17
district court did not err in the manner in which it seated the witnesses and jury.	18
{24} 	“In order to preserve an issue for appeal, a defendant must make a timely	19
objection that specifically apprises the [district] court of the nature of the claimed	20
error and invokes an intelligent ruling thereon.” Montoya, 2015-NMSC-010, ¶ 45	21

13
(internal quotation marks and citation omitted). A motion for a new trial is not	1
sufficient to preserve an issue that was not otherwise raised during trial proceedings.	2
See State v. Pacheco, 2007-NMSC-009, ¶¶ 7-8, 141 N.M. 340, 155 P.3d 745	3
(determining that because the defendant raised his claim of error for the first time in	4
a motion for a new trial, and the defendant had the ability to object to the error	5
throughout the trial, the claim was not properly preserved for appellate review).	6
{25} 	Defendant failed to make a timely objection that would have given the district	7
court the opportunity to correct any error. Defendant did not request the district court	8
move the witnesses or spectators from the gallery during trial, nor did Defendant	9
object to the courtroom setup before the trial began. Because Defendant only raised	10
the issue in his post-trial motion, the issue is not preserved absent a showing of	11
fundamental error. See Rule 12-321(B)(2) NMRA (providing an exception to the	12
preservation rule for questions involving fundamental error).	13
{26} 	The district court did not err in the manner in which it seated witnesses,	14
spectators, and the jury. Defendant argues that seating witnesses, spectators, and	15
jurors together caused jury intimidation and thus deprived Defendant of an impartial	16
jury. “An impartial jury is one in which each and every juror is totally free from any	17
impartiality whatsoever.” Fuson v. State, 1987-NMSC-034, ¶ 5, 105 N.M. 632, 735	18
P.2d 1138 (internal quotation marks and citation omitted). The seating arrangement	19
imposed by the district court simply required the witnesses, spectators, and jurors to	20

14
sit in the gallery to accommodate the requisite social distancing. See New Mexico	1
Supreme 	Court 	Order 	No. 	20-8500-025 	at 	12 	(July 	6, 	2020),	2
https://www.nmcourts.gov/wp-content/uploads/2020/12/Order-No_-20-8500-025-	3
Order-Adopting-PHE-Protocols-for-Safe-and-Effective-Operation-of-NM-Courts-	4
7-6-20-with-PHE-Protocols-Attached-1.pdf (requiring district courts to maintain “a	5
minimum distance of six (6) feet in each direction between every individual	6
participating in the trial proceedings”). Everyone was seated facing forward, socially	7
distanced, wearing facemasks, which necessarily concealed any facial expressions.	8
There 	is 	no 	evidence 	that 	any 	of 	the 	witnesses 	or 	spectators 	improperly	9
communicated with the jurors. Nor did any juror express concern to the bailiff who	10
was present with the jury during trial. Seating witnesses, spectators, and jurors	11
together in the gallery to accommodate safe social distancing, without evidence of	12
improper 	conduct, 	such 	as 	communication, 	interference, 	or 	intimidation 	is	13
insufficient 	to 	establish 	that 	Defendant 	was 	deprived 	of 	an 	impartial 	jury.	14
Accordingly, we conclude that the district court did not err in the manner in which	15
it seated the witnesses and the jury.	16
CONCLUSION	17
{27} 	For the foregoing reasons, we affirm.	18
{28} 	IT IS SO ORDERED.	19
_________________________________	20
KRISTINA BOGARDUS, Judge	21

15
WE CONCUR:	1
_________________________________	2
SHAMMARA H. HENDERSON, Judge	3
_________________________________	4
MICHAEL D. BUSTAMANTE, Judge, retired, sitting by designation	5