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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico

2 STATE OF NEW MEXICO, Filed 1/6/2020 10:56 AM

3 Plaintiff-Appellee, ae ae

Mark Reynatts

All v. No. A-1-CA-37383

5] HECTOR CHAVEZ,

6 Defendant-Anpellant

6 Defendant-AppeHant

7| APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY

a6 *L al 2 ee | Tee a a ion fo at
venniter Lr. beraney, VIStrict Juage

Hector H. Balderas, Attorney General

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Santa Fe, NM
John Kloss, Assistant Attorney General
Albuquerque, NM

for Appellee

16
7

Brian Parrish, Assistant Appellate Defender

Kimberly Chavez Cook, Assistant Appellate Defender
Santa Fe, NM

WOaHhta §

for Appellant

MEMORANDUM OPINION

IVES, Judge

43 Defendant appeals his conviction of aggravated battery (great bodily harm),

contrary to NMSA 1978, Section 30-3-5(C) (1969). Defendant argues that (1) if the

jury was functionally discharged, double jeopardy principles prohibited the judge

INO

from reassembling the jury to correct its verdict; (2) even if the jury was not

a mistrial; and (3) the evidence was insufficient to support the conviction. We affirm.

BACKGROUND

23 Defendant was charged with aggravated battery and tried before a jury. The

jury received instructions on aggravated battery, which is a felony, and on battery, a

lesser included misdemeanor. After the jury concluded its deliberations, it returned

to the courtroom and read its verdict: Defendant was guilty of battery. The parties

declined the district court’s invitation to poll the jury. The district court discharged

the jury and specifically noted they were relieved of their previous instructions to

not talk about the case with others or use any social media.

33, Immediately after the jury left the courtroom, the judge called a short recess

so she could release the jury and inquire about their service. Within one minute and

twenty seconds, the judge returned to the courtroom and announced that a juror

indicated the foreman signed the wrong verdict form and that the jury had

unanimously agreed Defendant was guilty of aggravated battery, rather than battery.

The jury returned to the courtroom, and the judge asked the foreman to state the

unanimous verdict the jury reached. The foreman stated “the unanimous verdict that

we chose was aggravated battery.” The court then polled each of the jurors, asking,

“Js guilty of aggravated battery with great bodily harm the verdict that you agreed
to?” Every juror responded affirmatively.

{4} The district court allowed the parties to submit briefing about what the proper
outcome of the trial should be. After holding a short hearing, the district court ruled
that the jury’s failure to sign the correct form did not merit a mistrial. The district
court found that the jury remained “within the control of the court and that there
were no intervening forces that in any way tainted the jury prior to them coming

back in and announcing their verdict, the corrected verdict of the aggravated

battery.” Thus, the district court did not disturb Defendant’s aggravated battery

conviction. Defendant appeals.

DISCUSSION

I. Double Jeopardy Principles Do Not Require Reversal

5} Defendant argues that the jury was discharged and that its reassembly to
correct its verdict violated double jeopardy principles. We disagree.

{6 In general, we review double jeopardy claims de novo, but “where factual
issues are intertwined with the double jeopardy analysis, we review the trial court’s |
fact determinations under a deferential substantial evidence standard of review.”
State v. Rodriguez, 2006-NMSC-018, § 3, 139 N.M. 450, 134 P.3d 737. To|-
determine if a jury was discharged, such that it could not be reassembled to correct

the mistake in the verdict, we take a “functional approach.” Jd. J 5. “[A] verbal

discharge or dismissal of the jury does not render the jury discharged for purposes
of subsequent reassembly to correct or amend a verdict.” Jd. Rather, our Supreme
Court has “considered two issues: (1) whether the jury was separated from the
presence and control of the trial court; and (2) whether there was a possibility of
outside contacts or influence on the jury.” Jd. The second prong also requires
consideration of “whether the record reflects that one or more jurors entered an area
occupied by the general public.” Jd. If a juror has left the presence and control of the
court and entered into an area of the general public, prejudice may be presumed, but
our Supreme Court has “decline{d] to presume prejudice when the judge is able to
articulate a finding that the jury did not leave the court’s presence and control and
remained intact.” Jd. | 7. Furthermore, “because [court officials] are officers of the
court, [appellate courts] decline to presume that court officials have contaminated a
juror or the jury[.]” Jd.

{7} | Under this functional approach, the verbal discharge of the jury in Defendant’s
case is not dispositive. See id. 5. As to the first prong of the Rodriguez test, the
record shows the jury did not leave the presence and control of the court. Indeed, the
district court found that the “jury remained under the supervision of the bailiff in the
deliberation room after they were initially discharged, for a few minutes.”
Substantial evidence supports this finding. Less than two minutes after the judge

verbally discharged the jury, the judge announced on the record that she had been

informed of an error in the verdict. The judge brought the jury back into the
courtroom to correct the verdict; a total of seven minutes had elapsed between the
verbal discharge of the jury and its return to the courtroom. Because the jury
remained in the confines of the jury room and within the presence and control of the
court, the first prong is satisfied.

83} Turing to the second prong, Defendant argues that the jury may have
“entered an area occupied by the general public” because the court gave the jury
permission to talk about the case with others and access social media. See id. ¥ 5.
Defendant contends that instant access to social media is the “modern day equivalent

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of entering ‘an area occupied by the general public’ ” and that the jury had access to
the public through their cell phones. We need not theorize about whether a jury’s
exposure to social media should be treated the same as entry into an “area occupied
by the general public” because the district court’s findings and the record in this case
require us to reject Defendant’s speculative argument. Defendant has not identified
any instance where a juror accessed social media or had other unauthorized contact
that might have influenced the corrected verdict. And the district court found that
“[njo members of the jury ever entered an area occupied by the general public” and
“[t]he only people coming in contact with the jurors after initial discharge were

[court officials, who are not presumed to have contaminated jurors.” See id. § 7

(stating that “we decline to presume prejudice when the judge is able to articulate a

finding that the jury did not leave the court’s presence and control and remained
intact”). Even assuming for the sake of discussion that one or more jurors accessed
social media, we find it implausible that during the seven minutes between when the
jury was discharged and when they returned to the courtroom, the jury was so
influenced by social media that the entire jury agreed to change its aggravated battery
verdict to guilty.

{9} We hold that the jury was not discharged and that double jeopardy principles
did not prohibit the district court from reassembling the jury to correct its verdict.
Il. The Judge’s Communication With the Jury Does Not Require Reversal
{10} We also reject Defendant’s alternative argument that if the jury was not
functionally dismissed, then the conversation the judge had with the jury was an
improper communication that should have resulted in a mistrial. “We review a trial
court’s denial of a motion for mistrial under an abuse of discretion standard.” State
v. Gallegos, 2009-NMSC-017, J 21, 146 N.M. 88, 206 P.3d 993 (internal quotation
marks and citation omitted). “An abuse of discretion exists when the trial court acted
in an obviously erroneous, arbitrary, or unwarranted manner.” Jd. (alteration,
internal quotation marks, and citation omitted). An improper communication arises
when “the substance of the ex parte communication relates to the issues of the case.”
State v. Jojola, 2006-NMSC-048, § 6, 140 N.M. 660, 146 P.3d 305 (internal

quotation marks omitted). Conversely, “a communication that does not relate to the

issue of the case (that is, a housekeeping matter) generally does not give rise to a
presumption of prejudice.” /d. (internal quotation marks omitted). Assuming without
deciding that the communication in Defendant’s case pertained to the issues in the
case, we. conclude that the evidence rebuts the presumption of prejudice. The
communication between the judge and the jury occurred after the jury had completed
its deliberations and after it had delivered its verdict. Before the judge left the
courtroom to speak with the jury, the jury had already recognized its own error and
had already asked the bailiff to retrieve the unsigned verdict forms. We therefore
conclude that the conversation between the judge and jury could not have been
prejudicial to Defendant and that the district court did not abuse its discretion by
refusing to grant a mistrial.

Ill. The Evidence Suffices to Sustain Defendant’s Conviction

(113. Defendant argues that the evidence is insufficient to convict him of aggravated
battery with great bodily harm. We disagree.

123 “The test for sufficiency of the evidence is whether substantial evidence of
either a direct or circumstantial nature exists to support a verdict of guilt beyond a
reasonable doubt with respect to every element essential to a conviction.” State v.
Cabezuela, 2015-NMSC-016, 414, 350 P.3d 1145 (internal quotation marks and
citation omitted). “Substantial evidence is relevant evidence that a reasonable mind

might accept as adequate to support a conclusion.” State v. Largo, 2012-NMSC-015,

—

§ 30, 278 P.3d 532 (internal quotation marks and citation omitted). Our review

employs a two-step process in which we first “view the evidence in the light most

favorable to the guilty verdict, indulging all reasonable inferences and resolving ail
conflicts in the evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-
009, § 26, 128 N.M. 711, 998 P.2d 176. We then consider “whether the evidence, so
viewed, supports the verdict beyond a reasonable doubt.” State v. Garcia, 2016-
NMSC-034, 4 24, 384 P.3d 1076. “We do not reweigh the evidence or substitute our
judgment for that of the fact finder as long as there is sufficient evidence to support
the verdict.” State v. Gipson, 2009-NMCA-053, 9 4, 146 N.M. 202, 207 P.3d 1179.
“The jury instructions become the law of the case against which the sufficiency of
the evidence is to be measured.” State v. Holt, 2016-NMSC-011, 9 20, 368 P.3d 409
(alterations, internal quotation marks, and citation omitted).

413} To obtain a conviction for aggravated battery with great bodily harm, the State
was required to prove beyond a reasonable doubt that “[(1) D]efendant touched or
applied force to [Victim] by repeatedly striking him; [(2) D]efendant intended to
injure [Victim]; [(3) D]efendant caused great bodily harm to [Victim]; [and (4) t]his
happened in New Mexico on or about the 18th day of December, 2016.” See UJI 14-
323 NMRA. The jury was also instructed that “[g]reat bodily harm means an injury
to a person which creates a high probability of death or results in serious

disfigurement or results in loss of any member or organ of the body or results in

permanent or prolonged impairment of the use of any member or organ of the body.”
See UJI 14-131 NMRA. Defendant challenges the sufficiency of the evidence of the
second and third elements: that Defendant intended to injure Victim and that
Defendant caused great bodily harm. We begin by summarizing the relevant
evidence and then address each challenged essential element.

4143 The evidence is undisputed that Defendant struck Victim first and did so at
least two times. Defendant testified that he knocked Victim to the floor and was
pulled away from Victim by his family members. One witness testified that
Defendant hit Victim’s face and head a number of times, so hard that the witness
could hear the sound of the rings Defendant was wearing hitting Victim; that Victim
was unable to fight back; and that when the witness and others tried to help Victim
into a car to leave, Defendant began hitting Victim again.

15} After Victim left to go to the hospital, his car ran off the road and got stuck in
a ditch. The officer who responded to the call regarding the disabled vehicle testified
that the vehicle had not sustained severe damage, none of its air bags had deployed,
and the driver did not appear to have sustained any injuries. The officer found Victim
in the passenger seat, unresponsive with wounds on his face and head. The officer
determined from his investigation that Defendant’s injuries were not consistent with
the damage to the car. Victim’s treating physician described Victim’s injuries as

those that occur from getting beaten up, a fall from a building, or a car accident.

Victim testified that he was bleeding after the attack and did not suffer any injuries
from the car accident. Victim was placed in a medically induced coma due to his
injuries, and repair of his injuries required multiple surgeries.

{16 We conclude that sufficient evidence supports the jury’s finding that
Defendant intended to injure Victim. Defendant admitted that he hit Victim first,
knocking him down, and that Defendant was pulled away from Victim by others.
And it is undisputed that Defendant struck Victim at least two times. Indeed, as
described above, one witness described Defendant striking Victim multiple times
with great force in the head and face, rendering Victim unable to fight back. From
this evidence the jury could have reasonably inferred that Defendant acted with the
requisite intent.

7; Sufficient evidence also supports the jury’s finding that Defendant’s battery
of Victim caused him to suffer great bodily harm. Victim sustained very
significant— indeed, life-threatening—head injuries. It is undisputed that Defendant
hit Victim at least two times, and Defendant testified that he hit Victim in his face
or head, knocking him down. Although Victim’s treating physician did not draw a
conclusion about exactly how Victim’s injuries occurred, the officer who
investigated the car accident testified that there was no damage to the interior of the
car consistent with Victim’s injuries, and Victim testified that he was bleeding

before the car accident and that he suffered no injuries in the accident. Therefore,

14]

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the jury could have reasonably inferred that Defendant caused Victim’s injuries by
striking him, and the jury could have reasonably rejected the theories that the car
accident or blows from other attackers caused Victim to suffer great bodily harm.
See State v. Rajo, 1999-NMSC-001, 4 19, 126 N.M. 438, 971 P.2d 829 (“Contrary
evidence supporting acquittal does not provide a basis for reversal because the jury
is free to reject [the d]efendant’s version of the facts.”).

18} Resolving all reasonable inferences in favor of the verdict, we find there was
sufficient evidence to convict Defendant of aggravated battery with great bodily
harm.

CONCLUSION

9} We affirm.

20} IT ISSO ORDERED.

ZACHARY A. NES, Judge

WE CONCUR:

2 MudAe—

J. MILES HANISEE, Chief Judge

n$ Manan LOxtit Hie

KRISTINA BOG&RDUS, Judge

January 6, 2020- State of New Mexico v. Hector Chavez, No. A-1-CA-37383

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