June 25, 2009 – State of New Mexico v. Richard Davis, No. 26,573

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	____________
Filing Date: 	June 25, 2009
NO. 26,573
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
RICHARD DAVIS,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Stephen Bridgforth, District Judge
Gary K. King, Attorney General
Nicole Beder, Assistant Attorney General
Santa Fe, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Eleanor Brogan, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
ROBLES, Judge.
{1} 	Defendant was convicted of child abuse. On appeal, Defendant raises issues
regarding jury instructions, the failure to hold a Faretta hearing, the lack of proof of
valid prior felonies for purposes of sentencing, ineffective assistance of counsel, and
insufficiency of evidence. 	Although we hold that there was sufficient evidence to
support Defendant’s conviction of intentional child abuse, we reverse this conviction
and remand for a new trial because of fundamental error in the jury instructions. We
need not reach Defendant’s remaining appellate issues because of the remand.
I. 	FACTS
{2} 	Defendant was taking care of his three-year-old son (Child) at the home of his
girlfriend, Maria Gordon. During that time, Gordon’s family members called police
twice to conduct welfare checks on her. 	During the second welfare check, the
responding officer found Child naked with wounds on his back and stomach. When
officers later found Defendant in the bedroom, he became hostile and resisted their
attempt to arrest him. 	Defendant also refused to give the officers any information
about Child at that time.
{3} 	Paramedics examined Child at the scene. The paramedics who examined Child
noted more than fifteen marks on his body extending from his upper to lower back.

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Some of the marks wrapped around onto Child’s abdomen. Defendant claimed that
Gordon’s dog likely caused the marks on Child’s body. 	Doctor Marcey Gillespie
examined Child at the emergency room. She observed a number of linear “impact
marks” that began on Child’s back and wrapped around his upper torso. 	Doctor
Gillespie testified that, in her opinion, the wounds were not consistent with Child
being scratched by Gordon’s Siberian Husky dog. She noted that Child did not have
any broken skin that would be consistent with dog scratches. 	Doctor Gillespie
testified that Child’s wounds were consistent with child abuse and appeared to have
been caused by him being hit with a thin, flexible object. 	Tracie Houston, an
investigator with the Children, Youth and Families Department, saw Child in the
emergency room. 	She testified that, in her experience, Child’s wounds were not
consistent with dog scratches and that he appeared to have been whipped with a thin,
flat object, possibly a cord. 	Police later searched Gordon’s home and retrieved
various cords that were consistent with Child’s injuries.
{4} 	Defendant testified at trial that he did not cause Child’s injuries. According to
Defendant, the injuries were caused by Gordon’s dog scratching Child. Additional
facts are set out below.
II. 	ANALYSIS
A. 	Jury Instructions

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{5} 	Defendant was indicted for intentional child abuse, contrary to NMSA 1978,
Section 30-6-1(D)(2) (2005), under a theory of cruelly punishing, torturing, or cruelly
confining Child by whipping his back with an unknown object. Defendant was not
indicted for negligent child abuse, and the State did not seek to amend the indictment
to charge negligent child abuse at any time.
{6} 	Following the close of evidence, the court instructed the jury on both intentional
and negligent child abuse. The instruction stated as follows:
For you to find [Defendant] guilty of child abuse which did not
result in death or great bodily harm, the [S]tate must prove to your
satisfaction beyond a reasonable doubt each of the following elements
of the crime:
1. 	[Defendant] caused [Child] to be placed in a situation
which endangered the life or health of [Child] or tortured
or cruelly punished [Child].
2. 	[D]efendant acted intentionally or with reckless disregard
and without justification.
To find that [Defendant] acted with reckless disregard, you
must find that [Defendant] knew or should have known . . .
Defendant’s conduct created a substantial and foreseeable
risk, . . . Defendant disregarded that risk and . . . Defendant
was wholly indifferent to the consequences of the conduct
and to the welfare and safety of [Child].
3. 	[Child] was under the age of 18[.]
4. 	This happened in New Mexico on or about the 24th
day of September, 2002.

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(Emphasis added.) 	The verdict form returned by the jury stated that it found
Defendant guilty of abuse of a child without specifying whether the jury found
intentional or negligent child abuse.
{7} 	Defendant argues that the district court erred in instructing the jury on both
negligent and intentional child abuse. 	Defendant made no objection to the jury
instructions below; therefore, the district court had no opportunity to address the issue.
We review Defendant’s challenge to the instruction for fundamental error. See Rule
12-216(B)(2) NMRA; State v. Gonzalez, 2005-NMCA-031, ¶ 19, 137 N.M. 107, 107
P.3d 547 (stating that when a defendant does not object to the jury instructions as
given, an appellate court reviews that instruction for fundamental error). Fundamental
error exists “if there has been a miscarriage of justice, if the question of guilt is so
doubtful that it would shock the conscience to permit the conviction to stand, or if
substantial justice has not been done.” State v. Sutphin, 2007-NMSC-045, ¶ 16, 142
N.M. 191, 164 P.3d 72 (internal quotation marks and citation omitted); see State v.
Barber, 2004-NMSC-019, ¶ 17, 135 N.M. 621, 92 P.3d 633 (explaining that
fundamental error includes both “cases with defendants who are indisputably
innocent, 	and 	cases 	in 	which 	a 	mistake 	in 	the 	process 	makes 	a 	conviction
fundamentally unfair notwithstanding the apparent guilt of the accused”).
{8} 	The State concedes that the district court erred in submitting the instruction on

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negligent child abuse to the jury, and we agree. “A defendant in a criminal case is
entitled to know what he is being charged with and to be tried solely on those charges.
It is improper to instruct the jury as to a crime not formally charged if that crime is not
a lesser[-]included offense of the crime formally charged.” 	State v. Johnson, 103
N.M. 364, 371-72, 707 P.2d 1174, 1181-82 (Ct. App. 1985) (reversing the defendant’s
conviction for negligent arson where he had been charged only with malicious and
willful arson, and negligent arson was not a lesser-included offense); See Rule 5-
611(D) NMRA (providing that the jury can find a defendant guilty of an offense
necessarily included in the crime charged if instructed); State v. Hamilton, 107 N.M.
186, 189, 754 P.2d 857, 860 (Ct. App. 1988).
{9} 	A defendant is considered to be on notice to defend against uncharged lesser-
included offenses. A crime is considered a lesser-included offense when, under either
the statutory elements or the facts alleged in the charging documents and supported
by the evidence, the defendant could not have committed the greater offense without
also committing the lesser offense. See State v. Meadors, 121 N.M. 38, 42-43, 908
P.2d 731, 735-36 (1995); State v. Collins, 2005-NMCA-044, ¶¶ 8-10, 137 N.M. 353,
110 P.3d 1090, superceded by regulation on other grounds as stated in State v. Willie,
2008-NMCA-030, 143 N.M. 615, 179 P.3d 1223 (filed 2007). Under this standard,
negligent child abuse is not a lesser-included offense of intentional child abuse. See

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§ 30-6-1(D); State v. Schoonmaker, 2008-NMSC-010, ¶ 46 n.4, 143 N.M. 373, 176
P.3d 1105 (noting that intentional child abuse and negligent child abuse are not the
same crime, and they are mutually exclusive because one cannot commit an
intentional act and an unintentional, but substantially risky, act at the same time).
Accordingly, it was improper for the district court to instruct the jury that it could
convict Defendant of negligent child abuse.
{10} 	The State cites to State v. Rodriguez, 81 N.M. 503, 505, 469 P.2d 148, 150
(1970) for the proposition that the doctrine of fundamental error is reserved for
criminal cases where the protection of those whose innocence appears indisputable
or open to such question that it would shock the conscience to permit the conviction
to stand. Further, the State argues that there is no possibility that a reasonable jury
would be confused or misdirected by the inclusion of the negligence instruction
because the State’s only theory at trial was intentional child abuse. The State argues
that because the evidence would not support a determination that Defendant
negligently whipped Child, there was no chance that the inclusion of instruction on
negligent child abuse had an impact on the verdict. We disagree.
{11} 	The essential elements instruction allowed the jury to convict if it found that
Defendant, intentionally or negligently, either caused Child to be placed in a situation
which endangered the life or health of Child or tortured or cruelly punished Child.

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The instruction did not require the jury to consider whether Defendant negligently or
intentionally whipped Child. The instruction does not mention a whip. In order to
convict, the jury only had to find that Defendant caused Child to be placed in a
situation which endangered his life or health and that he acted with reckless disregard.
Although the State did not specifically argue a negligent child abuse theory, the jury
was presented with conflicting testimony as to how Child’s injuries occurred.
Defendant testified that Child’s injuries were caused when Gordon’s dog scratched
Child while being left alone with the dog. It would not be impossible or irrational for
the jury to have concluded that Defendant was guilty of negligent child abuse based
on this evidence. Cf. State v. Reed, 2005-NMSC-031, ¶ 57, 138 N.M. 365, 120 P.3d
447 (holding that fundamental error did not occur, despite deficient jury instructions
on mens rea where, under the evidence in the case, the jury must have found that the
defendant met the applicable criminal negligence standard in order to convict); see
Santillanes v. State, 115 N.M. 215, 223, 849 P.2d 358, 366 (1993) (holding that error
in instructing the jury on civil negligence instead of criminal negligence was not
reversible because no rational jury could have concluded that the defendant cut his
nephew’s throat under the evidence in the case without finding that the criminal
negligence standard was met). For these reasons, we cannot agree with the State’s
assertion that there was no chance the inclusion of the negligence instruction had an

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impact on the verdict.
{12} 	Additionally, nothing in the other instructions would have alerted the jury that
it could not consider the negligent child abuse instruction in convicting Defendant.
See Reed, 2005-NMSC-031, ¶ 55 (stating that under a fundamental error analysis, the
court considers any possible confusion in the context of the instructions as a whole);
Gonzalez, 	2005-NMCA-031, 	¶ 	19 	(stating 	that 	error 	in 	jury 	instructions 	is
fundamental where it remains uncorrected by other instructions). 	Even if the jury
believed Defendant’s testimony that he did not intentionally abuse Child, the jury still
could have convicted him if they believed that Child’s injuries were the result of
negligent child abuse. 	For these reasons, we hold that the essential elements
instruction submitted to the jury was potentially confusing.
{13} 	We must determine if a reasonable juror would have been confused or
misdirected by an error in the jury instructions. “If we find error, our obligation is ‘to
review the entire record, placing the jury instructions in the context of the individual
facts and circumstances of the case, to determine whether the [d]efendant’s conviction
was the result of a plain miscarriage of justice.’” 	Barber, 2004-NMSC-019, ¶ 19
(quoting State v. Benally, 2001-NMSC-033, ¶ 24, 131 N.M. 258, 34 P.3d 1134 (Baca,
J., dissenting)). “A fundamental error ‘must go to the foundation of the case or take
from the defendant a right which was essential to his defense and which no court

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could or ought to permit him to waive.’” State v. Chavez, 2007-NMCA-162, ¶ 16, 143
N.M. 126, 173 P.3d 48 (quoting State v. Garcia, 46 N.M. 302, 309, 128 P.2d 459, 462
(1942)).
{14} 	Fundamental error occurred in this case. “[D]ue process under the Fourteenth
Amendment to the United States Constitution and [Article II, Section 14] of the New
Mexico Constitution require the State to provide reasonable notice of charges against
a person and a fair opportunity to defend; rights which may not be ignored or
trivialized.” State v. Baldonado, 1998-NMCA-040, ¶ 21, 124 N.M. 745, 955 P.2d 214
(internal 	quotation 	marks 	and 	citation 	omitted); 	see 	Miller 	v. 	Tafoya,
2003-NMSC-025, ¶ 16, 134 N.M. 335, 76 P.3d 1092 (“The essence of due process
is the right to notice and an opportunity to prepare and defend against the
allegations.”); State v. Dobbs, 100 N.M. 60, 69, 665 P.2d 1151, 1160 (Ct. App. 1983)
(“Every accused has the right to be informed of the crime with which he is charged
in sufficient detail to enable him to prepare his defense.”).
{15} 	Where the district court submits an uncharged crime to the jury as a basis for
conviction, it deprives a defendant of his constitutional right to notice and the
opportunity to prepare a defense, unless the crime is a lesser-included offense of the
crime charged. See State v. McGee, 2002-NMCA-090, ¶ 16, 132 N.M. 537, 51 P.3d
1191 (holding that the trial court erred when it sua sponte convicted the defendant of

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an uncharged crime that was not a lesser-included offense of the crimes charged).
{16} 	“We have an affirmative duty ‘to prevent a miscarriage of justice’ in our review
of fundamental error.” State v. Saiz, 2008-NMSC-048, ¶ 59, 144 N.M. 663, 191 P.3d
521 (quoting State v. Reyes, 2002-NMSC-024, ¶ 42, 132 N.M. 576, 52 P.3d 948). The
indictment charged Defendant with intentional child abuse based on a theory of
cruelly punishing or torturing, and that was the only crime for which Defendant could
properly be tried and convicted. Under the circumstances of this case, we cannot say
that the jury disregarded the instruction on negligent child abuse in rendering its
verdict. 	Cf. State v. Mascareñas, 2000-NMSC-017, ¶ 21, 129 N.M. 230, 4 P.3d
1221(finding fundamental error where there was no way to determine whether the jury
convicted the defendant under a civil negligence standard or the proper criminal
negligence standard). Allowing Defendant’s conviction to stand where there is the
possibility that he was convicted of a crime for which he was not charged would result
in a miscarriage of justice. We therefore hold that submission of the negligent child
abuse instruction constituted fundamental error in this case. Accordingly, we reverse
Defendant’s conviction and remand for a new trial.
B. 	Sufficiency of the Evidence
{17} 	Citing to Franklin and Boyer, Defendant also maintains that there was
insufficient evidence presented at trial to convict him of intentional child abuse. See

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State v. Franklin, 78 N.M. 127, 129, 428 P.2d 982, 984 (1967) (requiring the
defendant’s issue to be appealed in spite of apparent lack of merit); see also State v.
Boyer, 103 N.M. 655, 658-59, 712 P.2d 1, 4-5 (same). We consider this issue because
Defendant would be entitled to dismissal of the child abuse charge, instead of retrial,
if the evidence adduced at trial was insufficient to support his conviction. See State
v. Santillanes, 109 N.M. 781, 782, 790 P.2d 1062, 1063 (Ct. App. 1990). 	{18}
“When reviewing the sufficiency of the evidence, we view the evidence in the
light most favorable to the State; we resolve all conflicts and indulge all permissible
inferences in favor of the verdict.” 	State v. Neatherlin, 2007-NMCA-035, ¶ 8, 141
N.M. 328, 154 P.3d 703. The relevant inquiry is “whether substantial evidence exists
of either a direct or circumstantial nature to support a verdict of guilty beyond a
reasonable doubt with respect to each element of a crime charged.” 	State v.
Watchman, 2005-NMCA-125, ¶ 2, 138 N.M. 488, 122 P.3d 855. “On appeal, we will
not reweigh the evidence nor substitute our judgment for that of the fact finder
provided that there is sufficient evidence to support the verdict.” 	State v. Collins,
2007-NMCA-106, ¶ 29, 142 N.M. 419, 166 P.3d 480.
{19} 	Defendant was indicted for intentional child abuse by torturing or cruelly
punishing Child. 	In order to convict, the State was required to prove beyond a
reasonable doubt that (1) Defendant caused Child to be tortured or cruelly punished;

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(2) Defendant acted intentionally; (3) Child was under the age of eighteen; and (4) this
happened on or about September 22, 2001. 	See UJI 14-604 NMRA (defining the
elements of intentional child abuse not resulting in great bodily harm). 	The State
presented sufficient evidence to sustain its burden.
{20} 	The State presented evidence that Child had multiple linear wounds to his upper
torso and back. Child was staying with Defendant for the weekend at the home of
Gordon when his injuries occurred. Defendant and Gordon were the only adults who
had access to Child during the relevant time period. Gordon testified that she did not
cause Child’s injuries. The jury heard expert medical testimony that Child’s injuries
were not consistent with dog scratches and were consistent with child abuse. Doctor
Gillespie testified that Child’s wounds appeared to be caused by him being hit with
something thin and flexible. 	The responding officers testified that Defendant was
hostile and uncooperative when they responded to Gordon’s home and sought medical
attention for Child. 	Additionally, the State submitted photographic evidence of
Child’s injuries. Viewing this evidence in the light most favorable to upholding the
verdict, a rational jury could have found that Defendant committed intentional child
abuse.
{21} 	Defendant argues that his explanation for the cause of Child’s injuries should
not simply be disregarded by this Court. However, we do not reweigh the evidence

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or substitute our judgment for that of the fact finder. State v. Mora, 1997-NMSC-060,
¶ 27, 124 N.M. 346, 950 P.2d 789. The jury was free to disregard Defendant’s version
of events. 	See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829
(filed 1998).
III. 	CONCLUSION
{22} 	For these reasons, we reverse Defendant’s conviction and remand for further
proceedings consistent with this Opinion.
{23} 	IT IS SO ORDERED.
_______________________________
ROBERT E. ROBLES, Judge
WE CONCUR:
____________________________
CELIA FOY CASTILLO, Judge
____________________________
LINDA M. VANZI, Judge