March 02, 2010 – State of New Mexico v. Cecilia Vasquez, No. 27,304

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	MARCH 2, 2010
NO. 27,304
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
CECILIA VASQUEZ,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Silvia E. Cano-Garcia, District Judge and V. Lee Vesley, Pro-Tem Judge
Gary K. King, Attorney General
Andrea Sassa, Assistant Attorney General
Santa Fe, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
FRY, Chief Judge.
{1} 	Defendant was convicted of negligently permitting child abuse resulting in
death or great bodily harm, contrary to NMSA 1978, Section 30-6-1(D) (2004)
(amended 2005 and 2009), and tampering with evidence, contrary to NMSA 1978,
Section 30-22-5 (2003). Defendant appeals her convictions. We conclude that: (1)
the jury instruction on negligent child abuse properly incorporated the standard for
criminal rather than civil negligence, (2) there was substantial evidence of the
requisite mens rea supporting Defendant’s conviction for negligent child abuse, (3)
the trial court properly denied Defendant’s motion to suppress statements she made
to police, (4) the trial court did not abuse its discretion in denying Defendant’s
motions for change of venue, and (5) the trial court acted within its discretion in
sentencing Defendant. We therefore affirm.
BACKGROUND
{2} 	Defendant’s convictions stem from the death of her son following physical
abuse by the boy’s father. 	We state the facts necessary for an understanding of
Defendant’s convictions in the light most favorable to the verdict. 	In our factual
recitations throughout this opinion, we have relied on our review of the record below
in addition to those facts set out in the parties’ briefs that remained unchallenged. We

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relate additional facts as necessary in our discussion.
{3} 	Defendant had two children with her boyfriend, Freddie Ordoñez—a fifteen-
month-old son, Uriah, and a two-year-old daughter. 	Defendant worked, while
Ordoñez cared for their two children. 	On Tuesday, July 27, 2004, Ordoñez called
Defendant while she was at work and told her to come home because something was
wrong with Uriah. When Defendant arrived at home, Ordoñez admitted to her that he
had become frustrated with Uriah, picked him up by his ears, thrown him into the
bathtub, and then picked him up by his neck. Defendant later informed police that
Uriah had bruises on his ears, a possible bump on his head, a red mark on his neck,
a scrape on his leg, was scared and clingy, seemed weak, was vomiting, had glossy
eyes, and had what Defendant described as episodes of twitching over the next two
days.
{4} 	Defendant stayed home with Uriah on Wednesday, July 28, to watch over him.
In describing Uriah’s symptoms on Wednesday, Defendant stated that Uriah was
vomiting and slept most of the day, that Uriah fell and had a seizure on Wednesday
afternoon, and that Uriah continued to have episodes of twitching throughout the
night. 	The next morning, Thursday, July 29, Defendant returned to work and left
Uriah in Ordoñez’s care. Ordoñez called Defendant while she was at work to tell her
that Uriah was twitching. Defendant informed Ordoñez that Uriah had been twitching

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all night and instructed Ordoñez to feed Uriah a can of soup. Ordoñez then called a
second time and told Defendant to hurry and come home. Defendant stated that when
she arrived home, Ordoñez was holding Uriah and that Uriah’s body was limp in his
arms. Ordoñez placed Uriah on the couch and began performing cardiopulmonary
resuscitation. There was conflicting evidence as to whether Uriah was still alive when
Defendant returned home or whether Uriah was already dead. Defendant testified that
she wanted to call emergency personnel to assist Uriah but that Ordoñez would not
allow it.
{5} 	Shortly thereafter, Ordoñez and Defendant left their home. When they returned,
Defendant fell asleep with her daughter. When Defendant awoke on Friday morning,
July 30, 2004, she was unable to locate Ordoñez or her son’s body. After a series of
events not relevant to our analysis, Defendant contacted police in the early morning
hours of Saturday, July 31, 2004, to gain assistance in locating her son. Defendant’s
initial statements to police did not clearly communicate that Uriah had died but only
that Ordoñez had taken Uriah and that Defendant suspected Uriah may be dead.
During the course of her approximately twenty-one hours at the police station
assisting law enforcement with their investigation, Defendant informed police that her
son had died sometime Thursday. Through the investigation, it also came to light that
Ordoñez had taken Uriah’s body into the desert sometime late Thursday night or early

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Friday morning and had burned Uriah’s remains.
{6} 	In her statements to police, Defendant indicated that the events occurring in the
preceding days were not the first time Ordoñez had abused Uriah. 	Specifically,
Defendant informed police that Ordoñez had previously abused Uriah in November
2003, that Uriah had marks on his neck and back from where Ordoñez had hit him,
and that Defendant had taken Uriah to his paternal grandmother’s until Ordoñez had
cooled down. Defendant also stated that when Ordoñez would get mad at Uriah, he
would “just pick [Uriah] up and he’d throw him in his crib” and that Ordoñez would
yell at Uriah and tell him to shut up if he was crying too much. 	Defendant also
informed police that Ordoñez was physically abusive toward her on a regular basis.
{7} 	Defendant was indicted on one count of negligently permitting child abuse
resulting in death, one count of negligently permitting child abuse not resulting in
death or great bodily harm, one count of tampering with evidence, and one count of
conspiracy to commit tampering with evidence. The State filed a statement of joinder
requesting that Defendant and Ordoñez be tried together. 	The joint trial against
Defendant and Ordoñez commenced in February 2006. Following testimony by the
first witness, defense counsel moved to sever Defendant’s case, the motion to sever
was granted, and the trial court declared a mistrial. Defendant was tried separately.
{8} 	At Defendant’s trial, Defendant moved for a directed verdict following the close

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of the State’s case. The State agreed to dismiss the charge of negligently permitting
child abuse not resulting in death or great bodily harm. The remaining three charges
were submitted to the jury. The jury convicted Defendant of negligently permitting
child abuse resulting in death or great bodily harm and tampering with evidence. The
jury found Defendant not guilty of conspiracy to commit tampering with evidence.
The trial court sentenced Defendant to eighteen years’ imprisonment on the child
abuse charge and three years’ imprisonment on the conviction for tampering with
evidence. The trial court ordered the sentences to run concurrently.
DISCUSSION
{9} 	Defendant raises five issues on appeal: (1) her conviction for negligent child
abuse should be overturned because the jury was instructed to apply a civil negligence
rather than a criminal negligence standard, (2) there was insufficient evidence that she
possessed the requisite mens rea for negligently permitting child abuse resulting in
death or great bodily harm, (3) the trial court erred in refusing to suppress Defendant’s
multiple statements to police, (4) the trial court erred in refusing to grant Defendant’s
multiple motions for a change of venue, and (5) the trial court abused its discretion in
refusing to mitigate her sentence based on battered-spouse syndrome. We address
each issue below.
Jury Instruction

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{10} 	We begin by addressing Defendant’s challenge to the uniform jury instruction
on negligent child abuse. Defendant contends that the uniform jury instruction given
in this case, UJI 14-603 NMRA, erroneously allowed the jury to find her guilty of
negligent child abuse based on a civil negligence standard. Specifically, Defendant
contends that the language in the jury instruction permitting a conviction if Defendant
knew or should have known her actions or failure to act created a substantial and
foreseeable risk is consistent with a civil negligence and not a criminal negligence
standard. 	See id. 	Defendant raises this issue for the first time on appeal. 	We
therefore review Defendant’s claim for fundamental error. 	State v. Benally,
2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (stating that “[t]he standard of
review we apply to jury instructions depends on whether the issue has been
preserved[,]” and, if the error was not preserved, “we review for fundamental error”).
{11} 	Defendant is correct in asserting that her conviction must be based on criminal
negligence, not merely civil negligence. 	Our Supreme Court determined in
Santillanes v. State, 115 N.M. 215, 849 P.2d 358 (1993), that a conviction for
negligent child abuse pursuant to Section 30-6-1(D) must be based on a criminal
negligence standard rather than a civil negligence standard in order to satisfy due
process. Santillanes, 115 N.M. at 221-22, 849 P.2d at 364-65 (“We interpret the mens
rea element of negligence in the child abuse statute . . . to require a showing of

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criminal negligence instead of ordinary civil negligence.”). 	The Santillanes Court
held that to satisfy a criminal negligence standard there must be “proof that the
defendant knew or should have known of the danger involved and acted with a
reckless disregard for the safety or health of the child.” Id. at 222, 849 P.2d at 365
Our uniform jury instruction, UJI 14-603, reflects that holding. See id., Use Notes and
Compiler’s Annotations.
{12} 	In State v. Schoonmaker, 2008-NMSC-010, 143 N.M. 373, 176 P.3d 1105, our
Supreme Court considered whether UJI 14-602 is consistent with the Court’s decision
in Santillanes and embodies a criminal negligence standard or whether the instruction
still permits a conviction pursuant to a civil negligence standard. In Schoonmaker, a
defendant who was charged with negligent child abuse challenged the uniform jury
instruction. Id. ¶ 42. The defendant argued that the inclusion of “should have known”
in the instruction impermissibly permitted a conviction based on a civil negligence
standard because criminal negligence in New Mexico requires subjective knowledge
of the risk of harm. 	Id. (internal quotation marks omitted). 	Our Supreme Court
disagreed with the defendant in Schoonmaker, stating that “[w]hat 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 itself.” Id. ¶ 43. The Supreme
Court further noted that this interpretation was consistent with the Model Penal

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Code’s definition of criminal negligence, which provides:
A person acts negligently with respect to a material element of an
offense when he should be aware of a substantial and unjustifiable risk
that the material element exists or will result from his conduct. The risk
must be of such a nature and degree that the actor’s failure to perceive
it, considering the nature and purpose of his [or her] conduct and the
circumstances known to him [or her], involves a gross deviation from the
standard of care that a reasonable person would observe in the actor’s
situation.
Id. (quoting Model Penal Code § 2.02[(2)(d)] (Official Draft and Revised Comments
1962) (emphasis omitted) (internal quotation marks omitted)).
{13} 	Defendant 	advances 	no 	argument 	distinguishable 	from 	those 	made 	in
Schoonmaker but merely relies on the inclusion of the “should have known” language
to argue that the instruction permits conviction based on civil negligence. Because
this issue has already been directly addressed by our Supreme Court, which upheld the
use of UJI 14-602, we are bound by Schoonmaker. See McNeill v. Burlington Res. Oil
& Gas Co., 2007-NMCA-024, ¶ 19, 141 N.M. 212, 153 P.3d 46 (filed 2006) (“[T]he
Court of Appeals may consider error in the Uniform Jury Instructions, except that it
may not overrule ‘those instructions that have been considered by [the Supreme
Court] in actual cases and controversies that are controlling precedent.’” (second
alteration in original) (internal quotation marks and citation omitted)), aff’d, 2008-
NMSC-022, 143 N.M. 740, 182 P.3d 121. Accordingly, we affirm the trial court’s use
of the uniform jury instruction in this case.

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Substantial Evidence
{14} 	Defendant contends that there was insufficient evidence to establish that she
possessed the required mens rea to support her conviction for negligently permitting
child abuse resulting in death or great bodily injury pursuant to the jury instruction
discussed above. 	Defendant does not challenge the sufficiency of the evidence
supporting her conviction for tampering with evidence.
{15} 	“In reviewing the sufficiency of the evidence, we must view the evidence in
the light most favorable to the guilty verdict, indulging all reasonable inferences and
resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham,
2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176.
Substantial evidence review requires analysis of whether direct or
circumstantial substantial evidence exists and supports a verdict of guilt
beyond a reasonable doubt with respect to every element essential for
conviction. We determine whether a rational factfinder could have found
that each element of the crime was established beyond a reasonable
doubt.
State v. Kent, 2006-NMCA-134, ¶ 10, 140 N.M. 606, 145 P.3d 86 (citations omitted).
We derive the elements of the crime from the jury instructions. 	See State v. Smith,
104 N.M. 729, 730, 726 P.2d 883, 884 (Ct. App. 1986) (“Jury instructions become the
law of the case against which the sufficiency of the evidence is to be measured.”).
{16} 	In the present case, the jury was instructed that to find Defendant guilty of
negligently permitting child abuse resulting in death or great bodily harm, it was

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required to find:
1. 	[Defendant] permitted Uriah . . . to be placed in a situation
which endangered the life or health of Uriah . . .;
2. 	[D]efendant acted with reckless disregard. 	To find that
[Defendant] 	acted 	with 	reckless 	disregard, 	you 	must 	find 	that
[Defendant] knew or should have known [D]efendant’s actions or failure
to act created a substantial and foreseeable risk, [D]efendant disregarded
that risk and [D]efendant was wholly indifferent to the consequences of
the failure to act . . . and to the welfare and safety of Uriah . . .[;]
3. 	[Defendant] was a parent, guardian or custodian of the
child, or [D]efendant had accepted responsibility for the child’s welfare;
4. 	[Defendant’s] actions or failure to act resulted in the death
of Uriah . . .;
5. 	Uriah . . . was under the age of 18;
6. 	This happened in New Mexico on or between July 27,
2004[,] and July 29, 2004.
Defendant contends that there was insufficient evidence to support the jury’s
determination that she acted with reckless disregard as required by the second
paragraph of the instruction.
{17} 	In State v. Chavez, 2009-NMSC-035, 146 N.M. 434, 211 P.3d 891, our
Supreme Court identified several factors that may be considered in determining
whether an accused’s conduct created a substantial and foreseeable risk to a child.
Chavez identifies those factors as “the gravity of the threatened harm,” whether the
defendant’s “underlying conduct violates a separate criminal statute,” and “the

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likelihood that harm will occur.” Id. ¶¶ 23, 25-26. The determinative factor, however,
is the gravity of the risk, because “[i]t is the gravity of the risk that serves to place an
individual on notice that his [or her] conduct is perilous, and potentially criminal,
thereby satisfying due process concerns.” Id. ¶ 23 (citing Schoonmaker, 2008-NMSC-
010, ¶ 43) (“What distinguishes civil negligence from criminal negligence is . . . the
magnitude of the risk itself.” (emphasis omitted) (internal quotation marks omitted)).
{18} 	Although the State does not clearly distinguish the various theories of its case
against Defendant, we can discern two theories from the evidence presented: (1) that
Defendant failed to procure medical care for Uriah and (2) that Defendant negligently
entrusted Ordoñez with Uriah’s care and thus permitted Uriah to be abused. 	With
respect to the second theory, the State, based on the evidence at trial, appears to have
presented two alternative arguments: (1) that Defendant should have known of the
risk of Uriah dying or suffering great bodily harm based on the incidents occurring
prior to the July 27 injuries or (2) that once Defendant was aware of the injury on July
27, she was negligent in leaving child in Ordoñez’s care on July 29. 	Because we
conclude that there was sufficient evidence to support the jury’s verdict based on the
theory that Defendant negligently entrusted Ordoñez with Uriah’s care after July 27,
we do not review the sufficiency of the evidence supporting the State’s argument that
Defendant was guilty of negligent endangerment based on her failure to procure

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medical care for Uriah. 	See State v. Olguin, 120 N.M. 740, 740-41, 906 P.2d 731,
731-32 (1995) (holding that due process does not require a general verdict of guilt to
be set aside so long as one of the alternative bases for conviction is supported by
sufficient evidence and the other bases are not legally inadequate).
{19} 	Although this Court has previously considered whether a parent should be held
criminally liable for permitting abuse of his or her child, those cases were decided
under the civil negligence standard employed prior to our Supreme Court’s decision
in Santillanes. See State v. Williams, 100 N.M. 322, 324, 670 P.2d 122, 124 (Ct. App.
1983) (upholding a mother’s conviction for child abuse based on her failure to protect
her child from abuse by the mother’s husband because “[s]he lived in the same
household with her husband and child, knew of her husband’s violent nature, and his
use of drugs”), overruled by Santillanes, 115 N.M. at 218-19, 225, 849 P.2d at 361-62,
368; State v. Adams, 89 N.M. 737, 738, 557 P.2d 586, 587 (Ct. App. 1976) (upholding
a father’s conviction for child abuse based on his failure to protect his child from the
mother’s abuse because the father knew of the abuse, and although he was frequently
away from home in his occupation as a truck driver, was present for the child’s first
hospitalization in which the child was diagnosed with severe dehydration, a broken
humerus, a broken radius, possible rib fractures, and a previously broken nose),
overruled by Santillanes, 115 N.M. at 218-19, 225, 849 P.2d at 361-62, 368. In the

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present case, we consider whether Defendant’s act of leaving Uriah with Ordoñez rose
to the level of criminal negligence.
{20} 	The State presented evidence that on July 27, Defendant left work early and
returned home at Ordoñez’s request, that Ordoñez told Defendant he had picked Uriah
up by his ears and threw him in the bathtub, and that Defendant saw physical
symptoms suggesting that Ordoñez’s actions had caused serious injury to Uriah.
These symptoms included bruises on Uriah’s ears, marks on his neck and leg,
vomiting, weakness, glossy eyes, and episodes of twitching. Defendant stayed home
with Uriah on July 28, but on July 29 Defendant returned to work, leaving Uriah in
Ordoñez’s care. There was evidence presented that Ordoñez called Defendant at work
twice that day, the second time urgently insisting that she come home. 	Defendant
returned home to find Ordoñez holding Uriah’s limp body in his arms.
{21} 	From this evidence, a reasonable jury could have concluded that Defendant was
aware of the abuse Uriah suffered on July 27, that she left Uriah in Ordoñez’s care on
July 29, and that she knew or should have known that doing so created a substantial
and foreseeable risk of death or great bodily injury to Uriah. 	Further, there was
sufficient evidence to conclude that Defendant’s leaving Uriah in Ordoñez’s care on
July 29 resulted in Uriah’s death. Defendant’s medical expert, Dr. Brian Fist, testified
that the lack of blood stain on the recovered skull fragments indicated that the injury

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to Uriah that resulted in his death occurred on July 29. Dr. Fist testified that if Uriah
had suffered a traumatic head injury on July 27, the brain would have bled until his
death on July 29, causing the skull fragments to exhibit signs of blood stain. Although
Ordoñez testified that the abuse on July 27 never occurred and that the incident on
July 29 was an accident, the jury was free to reject his testimony. See State v. Foxen,
2001-NMCA-061, ¶ 17, 130 N.M. 670, 29 P.3d 1071 (recognizing that conflicts in the
evidence are to be resolved by the fact finder).
{22} 	Additionally, we find support for our determination that sufficient evidence
exists in State v. Burrell, 160 S.W.3d 798 (Mo. 2005) (en banc), and State v. Fernane,
914 P.2d 1314 (Ariz. Ct. App. 1995). In Burrell, a mother was convicted of one count
of endangering the welfare of a child in the first degree where the mother knew of
previous incidents of abuse and still allowed the father to have access to the child.
160 S.W.3d at 799-800. The mother was present when the father kicked their two-
year-old son hard enough to send him flying to the top of a stairway, kicked the child
in the torso while he was lying on the ground, slammed the child’s face into the floor,
and put his foot on the child’s face. 	Id. 	When the mother spoke with police, she
admitted that the child’s father had started hitting and choking her when she was still
pregnant with the child, that approximately a year later he began hitting and beating
the child, and that the abuse had escalated to where he would punch and kick the

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child. Id. at 801. She also informed police that she tried to stop the child’s father but
that he would beat her when she did. Id. The Missouri Supreme Court held that there
was “sufficient evidence from which a reasonable trier of fact could conclude that
[m]other’s act of placing [c]hild in contact with [f]ather . . . resulted in a substantial
risk of harm to [c]hild.” Id. at 802. The court relied on the mother’s knowledge of
past abuse, the fact that she witnessed the incident of abuse on the day of the child’s
death and did not take steps to stop the abuse or to remove the child, and the fact that
she allowed the child’s father to stay with them after the severe beating and, thereby,
putting the child in a situation where there was an actual risk of harm to the child,
which was realized later that night when the child’s father continued the abuse by
slapping and kicking the child when he would not wake up. Id.
{23} 	In Fernane, a mother was convicted of child abuse in connection with the death
of her two-year-old daughter based on less direct evidence than was present in Burrell.
The mother left her daughter with a man with whom she was living. 	Fernane, 914
P.2d at 1315. 	The Arizona Court of Appeals concluded that there was sufficient
evidence to establish that the mother knew she was endangering her daughter by
leaving her in this man’s care where she had told her daughter’s father that she did not
trust the man caring for their daughter and that their daughter was afraid of her
caretaker, where the mother had been present for instances of previous abuse, and

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where her daughter would scream when this man came close to her or when they
drove into his driveway. 	Id. at 1315-16. 	The court therefore concluded that the
prosecution had proved that “under circumstances likely to cause death or serious
physical injury, appellant intentionally or knowingly placed a child in a situation
where the child’s health or safety was endangered.” Id. at 1316.
{24} 	In the present case, although Defendant did not witness the abuse on July 27,
she was informed of the abuse by Ordoñez. Defendant told police about Uriah being
scared and clingy, having bruises consistent with Ordoñez’s admission, and that Uriah
was vomiting, twitching, and lethargic. 	Moreover, Defendant had previously
witnessed Uriah being abused by Ordoñez. While the November 2003 incident may
not have been sufficient to put Defendant on notice that she was placing Uriah at risk
on July 27, given the information Defendant received from Ordoñez on July 27,
Defendant’s knowledge of previous abuse lends support to the jury’s conclusion that
Defendant acted with reckless disregard for Uriah’s health and welfare when she left
Uriah in Ordoñez’s care on July 29. We conclude therefore that there was sufficient
evidence to support the jury’s verdict based on Defendant’s leaving Uriah in
Ordoñez’s care on July 29. Accordingly, we do not address the State’s alternative
argument that Defendant should have been aware that she was endangering Uriah by
leaving him in Ordoñez’s care on July 27 based on the November 2003 incident of

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abuse.
Suppression
{25} 	Defendant contends that the trial court erred in denying her motion to suppress
oral statements she claims were elicited from her in violation of her rights under the
Fifth Amendment to the United States Constitution and article II, section 15 of the
New Mexico Constitution. 	The State contends that Defendant failed to preserve a
separate claim under article II, section 15 of our state constitution because Defendant
only asserted her rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), in her
written motion to suppress and at the motion hearing. 	See State v. Varela, 1999-
NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 (stating that in order to preserve an
issue for appeal, a defendant must make a timely objection that specifically apprises
the trial court of the nature of the claimed error and invokes an intelligent ruling
thereon). There is no indication in Defendant’s reply brief that the State’s contention
is incorrect. It is Defendant’s obligation to demonstrate that she preserved the issue
below. See State v. Rojo, 1999-NMSC-001, ¶ 44, 126 N.M. 438, 971 P.2d 829 (filed
1998) (stating that an appellate court will not search the record to find whether an
issue was preserved where the defendant does not refer the court to appropriate
transcript references). Accordingly, to the extent Defendant raises a claim of error
under article II, section 15 of our state constitution for the first time on appeal, this

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Court limits its review to Defendant’s properly preserved claim of error raised
pursuant to the Fifth Amendment to the United States Constitution.
{26} 	Defendant contends that her statements to police should have been suppressed
because she was not first informed of her rights in accordance with Miranda. 	An
officer’s obligation to administer Miranda warnings arises only “when a person is (1)
interrogated while (2) in custody.” State v. Wilson, 2007-NMCA-111, ¶ 12, 142 N.M.
737, 169 P.3d 1184 (internal quotation marks and citation omitted). In reviewing the
trial court’s determination regarding Defendant’s entitlement to the protections of
Miranda, “we bear in mind that there is a distinction between factual determinations
which are subject to a substantial evidence standard of review and application of law
to the facts[,] which is subject to de novo review.” State v. Munoz, 1998-NMSC-048,
¶ 39, 126 N.M. 535, 972 P.2d 847 (alteration in original) (internal quotation marks
and citation omitted). In other words, “[w]e determine whether the law was correctly
applied to the facts, viewing the facts in the light most favorable to the prevailing
party[,] . . . indulg[ing] in all reasonable inferences in support of the [trial] court’s
ruling and disregard[ing] all evidence and inferences to the contrary.” State v. Bravo,
2006-NMCA-019, ¶ 5, 139 N.M. 93, 128 P.3d 1070 (filed 2005) (alteration in
original) (internal quotation marks and citation omitted).
{27} 	“Custody is determined objectively, not from the subjective perception of any

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of the members to the interview.” State v. Nieto, 2000-NMSC-031, ¶ 20, 129 N.M.
688, 12 P.3d 442. A court therefore applies an objective test to resolve whether there
was “a formal arrest or restraint on freedom of movement of the degree associated
with a formal arrest.” Wilson, 2007-NMCA-111, ¶ 14. Because the test is objective,
the inquiry is how a reasonable person who is being interviewed by police would have
understood his or her situation. Id. This Court has identified a number of factors to
consider in determining whether a reasonable person would believe he or she is free
to leave “includ[ing] the purpose, place, and length of interrogation[,] . . . the extent
to which the defendant is confronted with evidence of guilt, the physical surroundings
of the interrogation, the duration of the detention, and the degree of pressure applied
to the defendant.” 	Bravo, 2006-NMCA-019, ¶ 9 (internal quotation marks and
citation omitted).
{28} 	The circumstances in the present case are similar to those in Bravo. In Bravo,
the defendant called 911 to report that her four-year-old son had been injured and was
unconscious. Id. ¶ 2. The defendant’s son was taken to the hospital, and police asked
that the defendant remain at her home to answer questions regarding her son’s injury.
Id. ¶ 4. The defendant was interviewed by police, but no arrest was made. Id. The
defendant was questioned again several days later when police went to the defendant’s
home and asked whether the defendant and her husband would be willing to give

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another statement. Id. ¶ 12. The defendant and her husband agreed to be interviewed
and followed the officers to the police station in their own personal vehicle. Id. Once
at the police station, the defendant “essentially confessed” to having abused her son,
and she was allowed to go home with her husband at the conclusion of the interview.
Id. ¶ 13.
{29} 	This Court determined in Bravo that neither the police officers’ questioning of
the defendant at her home nor the subsequent questioning of the defendant at the
police station was a custodial interrogation. 	Id. ¶¶ 11-13. 	In reaching this
determination, we relied on the fact that for the interview at the defendant’s home, she
was questioned in familiar surroundings, the questioning took place with the
defendant’s family members still in the home, the defendant expressed a willingness
to speak with the investigator, the defendant’s movements were not restricted in any
way, and after interviewing the defendant, the officers left her residence. 	Id. ¶ 11.
With respect to the subsequent interview at the police station, we considered that the
defendant was asked to give another statement and was willing to do so; that the
defendant and her husband followed officers to the police station in their own personal
vehicle; that the defendant never told the officers that she was tired; that the defendant
was never placed in handcuffs or told she was under arrest; and that, despite her
confession, the defendant was allowed to go home at the conclusion of the interview.

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Id. ¶¶ 12-13.
{30} 	Similarly, in the present case, Defendant called police to assist her in locating
her missing child, the officer dispatched to Defendant’s location spoke with Defendant
while she was with a friend in her friend’s home, the officer asked Defendant if she
would go to the police station, Defendant agreed, and Defendant’s friend drove
Defendant and her daughter to the police station. Once at the station, Defendant was
left unattended in an employee lounge area, where she was permitted to nap, and she
was offered food and drink. Defendant was never placed in a locked or secured room,
handcuffed, or otherwise restrained. 	Defendant was not forced, pressured, or
threatened, nor was she confronted with evidence of her own guilt. Defendant was
forthcoming with information, she wanted to talk to detectives, and she was not
advised that she was under arrest or told she could not leave. 	Defendant never
informed officers that she wanted to leave, that she was tired, or that she did not want
to give a statement. 	Further, following Defendant’s statements to police, a police
officer gave her a ride back to her friend’s house and no arrest was made.
{31} 	We conclude that Defendant was not in custody for purposes of Miranda. See
Nieto, 2000-NMSC-031, ¶ 21 (holding that a suspect was not in custody where the
suspect was “asked and agreed to accompany [the] police officers to the station, was
free to leave or terminate the interview, and was provided transportation to and from

22
the station” because these facts are “consistent with routine, non-custodial police
questioning”); Munoz, 1998-NMSC-048, ¶ 43 (holding that a suspect was not in
custody where the suspect willingly went with police to be questioned, was not
handcuffed or searched, was not interviewed in a locked space, and was taken back
home when the interview was completed). We therefore affirm the trial court’s denial
of Defendant’s motion to suppress.
Change of Venue
{32} 	Defendant argues that the trial court erred by denying her multiple motions for
change of venue. Defendant moved the trial court for a change of venue both prior
to the commencement of her joint trial with Ordoñez and following the mistrial. At
the hearing on her first motion for change of venue, Defendant argued that there had
been pervasive pretrial publicity that would negatively impact her ability to secure a
fair and impartial jury in Doña Ana County. 	The trial court denied Defendant’s
motion for change of venue and instead ordered the parties to prepare jury
questionnaires that would be sent out to panel members prior to jury selection to see
if a fair and impartial jury could be selected in Doña Ana County. 	The trial court
ruled that it would also prepare for the possibility that the jury questionnaires would
reveal that a fair and impartial jury could not be selected and that an alternate venue
would need to be arranged.

23
{33} 	Jury questionnaires were sent out before the first trial. 	The questionnaires
instructed the jury pool to avoid publicity regarding Defendant’s case. Following the
mistrial, Defendant again moved the trial court for a change of venue, arguing that
fourteen members of the jury pool for the first trial had ignored the instruction to
avoid publicity and had admitted to reading an article regarding the case in the local
newspaper. Defendant also argued that there had been extensive coverage of the trial
further impacting her ability to secure a fair and impartial jury. The trial court denied
Defendant’s motion.
{34} 	Jury questionnaires were submitted to the new jury panel. Prior to voir dire, the
trial court held a hearing to resolve issues raised by the jury questionnaires. At that
hearing, 	the 	trial 	court 	and 	the 	parties 	considered 	the 	248 	potential 	juror
questionnaires that were returned, and by agreement of counsel or by decision of the
court, 112 potential jurors were struck for cause. Following voir dire, a twelve-person
jury and two alternate jurors were chosen.
{35} 	This Court reviews the trial court’s venue determination for an abuse of
discretion. State v. House, 1999-NMSC-014, ¶ 31, 127 N.M. 151, 978 P.2d 967. As
our appellate courts have noted in previous cases, “[t]he trial court’s discretion in this
matter is broad and will not be disturbed on appeal unless a clear abuse of that
discretion can be demonstrated.” Id.; see State v. Barrera, 2001-NMSC-014, ¶ 11,

24
130 N.M. 227, 22 P.3d 1177; State v. Mantelli, 2002-NMCA-033, ¶ 54, 131 N.M.
692, 42 P.3d 272. “The burden of establishing an abuse of discretion is borne by the
party that opposes the trial court’s venue decision.” House, 1999-NMSC-014, ¶ 31.
As the party opposing the trial court’s venue decision, it is Defendant’s burden to
establish an abuse of discretion.
{36} 	A trial court’s decision to grant a change of venue may be based on either a
presumption that prospective jurors are prejudiced or on evidence of actual juror
prejudice. 	In House, our Supreme Court discussed the distinction between actual
prejudice and presumed prejudice.
Actual prejudice requires a direct investigation into the attitudes of
potential jurors. Under this inquiry, the court will conduct a voir dire of
prospective jurors to establish whether there is such widespread and
fixed prejudice within the jury pool that a fair trial in that venue would
be impossible. 	Presumed prejudice, on the other hand, addresses the
effect of publicity about a crime upon the entire community where the
trial takes place. 	Under this inquiry, a change of venue should be
granted if evidence shows that the community is so saturated with
inflammatory publicity about the crime that it must be presumed that the
trial proceedings are tainted.
Id. ¶ 46 (citation omitted); see Mantelli, 2002-NMCA-033, ¶ 55 (“Presumed prejudice
makes inferences about the effect of publicity on the community as a whole, while
actual prejudice is based upon direct evidence of bias in the minds of the individual
prospective jurors.”). 	The choice of whether to grant a change of venue based on
presumed prejudice prior to voir dire or to make a determination based on actual

25
prejudice after voir dire is within the sound discretion of the trial court. See House,
1999-NMSC-014, ¶ 55 (“[T]he choice of waiting until after voir dire before granting
a motion to change venue rests with the sound discretion of the trial court and will not
be disturbed absent an abuse of that discretion.”).
{37} 	When a trial court has determined that a movant has not demonstrated presumed
prejudice and proceeds to voir dire, our Supreme Court has stated that New Mexico
appellate courts are limited to a review of the evidence of actual prejudice. 	See
Barrera, 2001-NMSC-014, ¶ 16. In limiting the appellate review of a trial court’s
venue decision, the Court stated that “[a] finding of no actual prejudice following voir
dire, if supported by substantial evidence, necessarily precludes a finding of presumed
prejudice.” 	Id. 	Although the trial court in this case did not issue a written order
finding that no actual prejudice existed, the trial court chose to make a determination
based on actual prejudice following voir dire, and once a venire was gathered, the trial
court implicitly determined that actual prejudice did not exist by impaneling a jury
from the available jurors. See Stinson v. Berry, 1997-NMCA-076, ¶ 8, 123 N.M. 482,
943 P.2d 129 (“Where there has been no formal expression concerning a motion, a
ruling can be implied by entry of final judgment or by entry of an order inconsistent
with the granting of the relief sought.”). Accordingly, this Court does not review the
trial court’s determination that Defendant failed to establish presumed prejudice

26
because the trial court chose to make its change of venue determination based on the
existence of actual prejudice and implicitly ruled that actual prejudice did not exist.
To the extent Defendant requests this Court to review the trial court’s denial of her
motion for change of venue based on presumed prejudice, our doing so would exceed
the scope of review set out by our Supreme Court in change of venue cases. 	We
further note that even if this Court were to review the trial court’s presumed prejudice
determination, based on our review of the record below, Defendant would be unable
to demonstrate an abuse of discretion on appeal.
{38} 	Moreover, Defendant makes no argument on appeal that any of the impaneled
jurors exhibited actual prejudice. Instead, Defendant’s argument on appeal mirrors
her argument below, that pretrial publicity, public statements by the district attorney,
and the general attitude within the community established that prejudice existed.
However, “[w]hen courts address actual prejudice, the often quoted inquiry . . . is
whether the jurors had such fixed opinions that they could not judge impartially the
guilt of the defendant. 	Given the state of modern communications, it is not only
unnecessary, but realistically impossible to expect jurors to be totally ignorant of the
facts and issues of a case.” House, 1999-NMSC-014, ¶ 51 (internal quotation marks
and citations omitted). Defendant has not identified any individual selected to serve
on the jury who indicated he or she could not be impartial. See Barrera, 2001-NMSC-

27
014, ¶ 18 (holding that there was no evidence of actual prejudice where the
“individuals actually selected for the jury stated that they were either unfamiliar with
the case or that they could decide the case based upon the evidence presented at trial”).
“Exposure of venire members to publicity about a case by itself does not establish
prejudice.” State v. Chamberlain, 112 N.M. 723, 726, 819 P.2d 673, 676 (1991); see
State v. Hargrove, 108 N.M. 233, 239, 771 P.2d 166, 172 (1989) (stating that “fairness
does not require that jurors be totally ignorant of the facts and issues of the case”).
Accordingly, we conclude that Defendant has not satisfied her burden on appeal, and
we affirm the trial court’s denial of Defendant’s change of venue request.
Sentencing
{39} 	Defendant contends that the trial court abused its discretion by refusing to
mitigate her sentence. The trial court sentenced Defendant to eighteen years in prison
based on Defendant’s conviction for negligent child abuse resulting in death in
violation of Section 30-6-1(D), the basic sentence for a first-degree felony. See § 30-
6-1(E) (“If the abuse results in great bodily harm or death to the child, he is guilty of
a first degree felony.”); NMSA 1978, § 31-18-15(A)(3) (2003) (amended 2005 and
2007) (“If a person is convicted of a noncapital felony, the basic sentence . . . for a
first degree felony [is] eighteen years imprisonment[.]”). 	The trial court also
sentenced Defendant to a term of three years in prison based on her conviction for

28
tampering with evidence, the basic sentence for a third-degree felony. See § 30-22-
5(B)(1) (“[I]f the highest crime for which tampering with evidence is committed is a
capital or first degree felony or a second degree felony, the person committing
tampering with evidence is guilty of a third degree felony.”); § 31-18-15(A)(7) (“If
a person is convicted of a noncapital felony[,] the basic sentence . . . for a third degree
felony [is] three years imprisonment[.]”).
{40} 	As this Court stated in State v. Cumpton, 2000-NMCA-033, ¶ 12, 129 N.M. 47,
1 P.3d 429, “[t]here is no obligation on the part of a judge to depart from the basic
sentence. The opportunity for a [trial] court to mitigate a sentence depends solely on
the discretion of the court and on no entitlement derived from any qualities of the
defendant.” While Defendant acknowledges that her sentence is lawful, that it is the
basic sentence prescribed by the Legislature, and that the trial court had no obligation
to 	mitigate, 	Defendant 	nonetheless 	argues 	that 	her 	sentence 	is 	“unjust 	and
unwarranted” and that the trial court abused its discretion in refusing to mitigate where
Defendant presented uncontroverted expert testimony that she needed specific
treatment for her battered-spouse syndrome diagnosis.
{41} 	Sentencing is reviewed for an abuse of discretion. State v. King, 2007-NMCA-
130, ¶ 4, 142 N.M. 699, 168 P.3d 1123 (stating that we review a trial court’s
sentencing determination for abuse of discretion and questions regarding the legality

29
of a sentence de novo). 	This Court has previously held that there is no abuse of
discretion if the sentence imposed is authorized by law. 	See State v. Augustus, 97
N.M. 100, 101, 637 P.2d 50, 51 (Ct. App. 1981). 	As we stated in Cumpton, “[a
d]efendant is entitled to no more than a sentence prescribed by law.” 2000-NMCA-
033, ¶ 12. 	Defendant received the sentence prescribed by law in this case. 	We
therefore affirm with respect to this issue.
CONCLUSION
{42} 	For the reasons stated above, we affirm Defendant’s convictions and sentence.
{43} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Chief Judge
WE CONCUR:
JONATHAN B. SUTIN, Judge
TIMOTHY L. GARCIA, Judge