A-1-CA-35224 | Omnilex

Texto completo

Court of Appeals of New Mexico
Filed 8/23/2019 2:18 PM

OCR transcription for search; preserved printed pages are authoritative

—

10
11
12
13
14
15
16

Corrections to this opinion not affecting the outcome. at the Court's discretion, can occur up to the time of publication with NM
Compilation Commission. The Court will ensure that the electronic version of this opinion is updated accordingly in Odysscy.

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

STATE OF NEW MEXICO, Filed 8/23/2019 2:18 PM
Plaintiff-Appellee, AU. we } ~ [
Mark Reynolds
V. No. A-1-CA-35224
ZACHARY KRIESEL,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
Louis P. McDonald, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

Walter Hart, Assistant Attorney General
Albuquerque, NM

for Appellee

The Law Office of Scott M. Davidson, Ph. D., Esq.
Scott M. Davidson

Albuquerque, NM

for Appellant

MEMORANDUM OPINION
BOGARDUS, Judge.
{1} Defendant Zachary Kriesel appeals his conviction for child abuse resulting in
great bodily harm. Defendant challenges (1) the child abuse jury instruction used at

trial; (2) the sufficiency of the evidence supporting the conviction; (3) the admission

of medical testimony he characterizes as irrelevant; and (4) the trial, generally, as

leading to a wrongful conviction because of cumulative error. Concluding that there
was no error as Defendant contends, we affirm.

BACKGROUND

23 The following facts are taken from testimony at the second trial! of this matter.

At the time of the incidents leading to Defendant’s arrest, he was living in an
apartment with his fiancée, Ashley, and her two children, Andree, about nineteen
months old, and Areana, four years old. Areana was small for her age—not much
bigger than Andree, according to Ashley. The four started living together in March
2011, about three months after Defendant and Ashley began their relationship.

{3} On the weekend of July 30 and 31, 2011, Andree was staying with Ashley’s
mother. During that time, Andree came down with a cold accompanied by a fever.
Ashley started a new job that Monday, August |. Defendant watched the children
while she was away; it was the first time he was alone with them for a full day. When
Ashley came home from work that afternoon, she decided to take Andree to the
emergency room because of his fever. There, a doctor examined Andree, including
taking his temperature, checking his vital signs, and checking his belly. Ashley was

present during the examination and testified that there was nothing unusual about

'The first trial, held in August 2013, ended in a mistrial when the jury was
unable to reach a unanimous verdict.

Andree’s body or skin; specifically, she testified that he had no bruises. The doctor
determined that Andree needed Motrin and a popsicle. Ashley then took Andree
home, where he slept and, according to Ashley, was “fine.”

{4} On Tuesday, August 2, Ashley went to work and again left the kids in
Defendant’s care. After work, instead of going directly home, Ashley went shopping
with her grandmother and sister. Once home, Ashley checked on Andree, who was
asleep in his crib. He was dressed in footed pajamas, fully zipped; Ashley considered
his dress unusual, especially given the time of year. That night, at about 2:00 or 3:00
a.m., Andree was “groaning, like he was in pain[,]” according to Ashley. Ashley
checked on him, thinking perhaps his fever had worsened. She adjusted his pacifier,
and he went back to sleep.

{5} Defendant described what happened that Tuesday while he was caring for the
children. Andree started choking while eating macaroni and cheese with hot dogs.
Defendant patted him on the back and did compressions on his stomach and
managed to dislodge the food. Later, while the kids were playing Ring Around the
Rosie on the balcony, Andree fell and hit his head. Afterward, Andree was “playing
around throughout the house” and “seemed fine.”

6} | Ashley went to work on Wednesday, August 3. At one point, she phoned
Defendant, who told her that Areana had hit Andree with an Etch-A-Sketch-type toy.

When Ashley came home after work, Andree was slumped over on the couch, in

blankets, surrounded by stuffed animals, struggling to breathe, not moving, and
“throwing up green stuff everywhere.” Though Defendant believed it was
unnecessary, Ashley sought medical help. She and her sister drove to a pediatric care
center while Defendant stayed home with Areana. In the car on the way there, Ashley
changed Andree’s diaper and noticed bruises all over Andree’s body. The doctors at
the center examined Andree and then sent them to the hospital in an ambulance.
From the hospital, Ashley relayed to Defendant that Andree had forty-five bruises
all over his body, “all brand new.” Andree underwent emergency surgery for internal
injuries.

{7} Defendant described the events of that Wednesday as follows. He fed the kids
breakfast, laid them down for a nap, and gave them a bath. In the afternoon, he put
them in a room, with the door open, to watch a movie while he played a video game
in the living room. The kids “were getting along perfectly fine.” At some point,
Defendant heard Andree make a “death cry” while Areana yelled. Defendant got up
and saw Areana striking Andree with the Etch-A-Sketch. He never noticed that
Andree was in pain or was suffering, but when Ashley arrived home he did notice
that Andree’s breathing had changed.

{833 Andree underwent follow-up surgeries and stayed in the hospital for the rest
of August. After the incident, Defendant moved out of the apartment and Ashley cut

off contact with him.

93 Several medical experts testified about the nature of Andree’s injuries. A
neuroradiologist who reviewed radiological images of Andree’s head taken on
August 3, 2011 testified that Andree had a subdural hematoma, or bleeding outside
the brain, caused by “significant trauma[,]” such as that which could be caused by a
high speed automobile accident or intentional abuse, and greater than that which
could be caused by a fall from a short height. He also testified that the injury was
“probably within a few days” old. Another expert testified that she did not believe it
possible that a four-and-a-half year old could have caused Andree’s subdural
hematoma.

{10} |The doctor who performed emergency surgery on Andree removed a portion
of Andree’s intestine. He testified that the injury, caused by trauma, probably
happened within the previous twenty-four hours and that Andree “would[ not] have
survived days” without the surgery.

{113 Ashley testified that she did not, nor would she ever, hurt Andree. She also
testified that before the incident, Andree had no injuries requiring medical attention,
and that after the incident, he had only one: he tripped on a stool at daycare and got
stitches on his eyebrow. She further testified that Areana did not cause his injuries.
{123 Ashley’s mother testified that Andree never left her care while he was with
her the previous weekend and that he was “fine” when he left on that Sunday. She

further testified that she saw Andree’s bruises at the hospital on that Wednesday,

10
1]
12
13
14
15
16
17
18
19

that the bruises were not there when she bathed him over the weekend, and that she
would have noticed had they been. The jury convicted Defendant of child abuse
resulting in great bodily harm. Defendant now appeals.

DISCUSSION

I. Jury Instructions

413}, Defendant first challenges the propriety of one of the instructions given to the
jury. We are guided by the following principles in our review of this issue.

The standard of review we apply to jury instructions depends on
whether the issue has been preserved. If the error has been preserved
we review the instructions for reversible error. If not, we review for
fundamental error. Under both standards we seek to determine whether
a reasonable juror would have been confused or misdirected by the jury
instruction. A juror may suffer from confusion or misdirection despite
the fact that the juror considers the instruction straightforward and
perfectly comprehensible on its face. Thus, juror confusion or
misdirection may stem not only from instructions that are facially
contradictory or ambiguous, but from instructions which, through
omission or misstatement, fail to provide the juror with an accurate
rendition of the relevant law.

State v. Benally, 2001-NMSC-033, 912, 131 N.M. 258, 34 P.3d 1134 (internal
quotation marks and citations omitted).

4144 Defendant states that he preserved this argument, but—contrary to our rules
of appellate procedure—does not cite the transcript of proceedings to confirm his
assertion. See Rule 12-318(A)(4) NMRA. Defendant’s only reference in his brief in

chief to a relevant objection consists of a quote of an alternative jury instruction

13
14
15

16
17

18
19
20

21
22
23

Defendant requested; however, that request was made at Defendant’s first trial, not,
as would make the objection timely, the second, from which his conviction arose.
See State v. Montoya, 2015-NMSC-010, 9 45, 345 P.3d 1056 (“[T]o preserve an
issue for appeal, a defendant must make a timely objection.”). The State, meanwhile,
is silent on whether this issue was preserved. We need not resolve this matter
because, for the reasons outlined below, we ultimately see no error in the instruction.
{15} Defendant’s arguments on this issue essentially follow two lines of reasoning.
First, he argues, the jury instruction given would have confused or misdirected a
reasonable juror because of its internal contradiction and ambiguity. The instruction
directed the jury to find Defendant guilty of child abuse if it found two elements that
Defendant contends conflict with one another. Those elements are found in
Paragraphs | and 3 of the instruction, which reads in full as follows.

For you to find [Defendant] guilty of child abuse resulting 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] struck or caused Andree ... to be struck in the
head and abdomen;

2. By engaging in the conduct described in Paragraph 1,
[Defendant] caused Andree . . . to be tortured or cruelly
punished;

3. [Defendant] showed a reckless disregard for the safety or
health of Andree[.] To find [Defendant] showed a reckless
disregard, you must find that [Defendant’s] conduct was more

On NN PWN —

than merely negligent or careless. Rather, you must find that
[Defendant] caused a substantial and unjustifiable risk of
serious harm to the safety or health of Andree[.] A substantial
and unjustifiable risk is one that any law-abiding person
would recognize under similar circumstances and that would
cause any law-abiding person to behave differently than
[Defendant] out of concern for the safety or health of
Andree[;]

4. [Defendant’s] conduct resulted in great bodily harm to
Andree [;]

5. Andree ... was under the age of eighteen (18);
6. This happened in New Mexico on or about August 3, 2011.

Defendant asserts that the instruction “contained both intentional and reckless
theories of mens rea”; that is, he continues, “[t]he instruction presented in part an
intentional theory (Element 1) and partly a theory of reckless disregard (Element
3).” On the basis of the alleged dual theories, he concludes that his conviction cannot
stand.

{16} We agree with Defendant that the instruction’s third element embodied the
theory that Defendant committed child abuse by acting with reckless disregard; this
is apparent in the third paragraph’s wording. We disagree, however, that the first
element embodied a theory that Defendant intended the child abuse. For one thing,
the word “intentionally” is absent from the first paragraph and, for that matter, the

remainder of the instruction. For another, to the extent that the paragraph connotes

intentionality, such intentionality relates to the active, voluntary nature of
Defendant’s conduct. Committing an act actively and voluntarily is compatible with
a theory of child abuse resulting from one’s reckless disregard for the consequences
of the act. We therefore disagree that the jury instruction would have confused or
misled a reasonable juror due to facial contradiction or ambiguity, because we see
no such contradiction or ambiguity.

{17} We likewise reject Defendant’s second line of argument, which centers on his
contention that the instruction misaligned with the State’s theory of the case.
Specifically, Defendant argues that “[w]here the State has presented an intentional
theory at trial, it cannot then present the jury with an instruction based on a mens rea
of reckless disregard.” Presumably Defendant refers to the State’s presentation of its
theory to the jury.

{18}. Even assuming Defendant’s proposition is an accurate reflection of the law,
his support for the argument fails. His evidence that the State presented an
intentional theory consists primarily of this statement by the prosecutor: “[T]here is
no negligent jury instruction here, we’re going strictly on intentional.” But this
statement was made during argument on Defendant’s directed verdict motion, not to
the jury.

{193 As additional evidence of his assertion that the State presented only an

intentional theory of child abuse, Defendant cites to remarks from the State’s

Opening statement, namely this: “We will show that . . . Defendant acted
intentionally or with reckless disregard.” Yet even if we adopt Defendant’s view that
the State presented an intentional theory only—and ignore the “or with reckless
disregard” portion of the prosecutor’s statement—we recognize no error in the jury
instruction’s use.

{20} The instruction given was based on the Uniform Jury Instruction for child
abuse resulting in great bodily harm, UJI 14-615 NMRA. UJI 14-615 took effect on
April 3, 2015, shortly before Defendant’s trial. UJI 14-615 was authoritative then
and now. Committee commentary on a related UJI, UJI 14-612 NMRA, to which
committee commentary for UJI 16-415 refers, makes clear that the “reckless
disregard” language, as used in Paragraph 3 of the jury instruction at issue here, is
proper even in cases where the State’s theory is based on intentional child abuse.
Specifically, the commentary reads: “Separate instructions for intentional child
abuse ... are not provided because evidence that the defendant’s conduct was...
intentional will meet the reckless disregard standard.” The statement is buttressed
by citations to State v. Montoya, 201S5-NMSC-010, 4 33, 345 P.3d 1056, and the
Model Penal Code § 2.02(5). Notably, none of the committee commentary-based
exceptions to the sole use of UJI 14-615 apply here.

21} Thus, the use of the jury instruction here was proper even if the State advanced

an intentional theory of child abuse. It was proper if the State advanced a reckless

disregard theory of child abuse. Insofar as the use of the jury instruction is
concerned, it is immaterial whether the State’s theory was one of intentional or
reckless child abuse. Therefore, we conclude there was no error in the instruction’s
use.

II. The Evidence Is Sufficient to Support Defendant’s Child Abuse
Conviction

22} Defendant next argues that his conviction was not supported by sufficient
evidence. “The test for sufficiency of the evidence is whether substantial evidence
of either a direct or circumstantial nature exists to support a verdict of guilty beyond
a reasonable doubt with respect to every element essential to a conviction.” Montoya,
2015-NMSC-010, § 52 (internal quotation marks and citation omitted). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion[.]” State v. Salgado, 1999-NMSC-008, § 25, 126 N.M. 691,
974 P.2d 661 (internal quotation marks and citation omitted). Lastly, on appeal, we
“view the evidence in the light most favorable to the guilty verdict, indulging all
reasonable inferences ... in favor of the verdict.” State v. Cunningham, 2000-
NMSC-009, ¥ 26, 128 N.M. 711, 998 P.2d 176.

23} Defendant essentially argues that there are three flaws with the evidence
presented at trial: (1) the evidence did not directly link Andree’s injuries to acts by

Defendant; (2) “one of the State’s key witnesses[,]” Areana, “had significant gaps in

her testimony”; and (3) the jury had to “pil[e] inference upon inference” to reach its
verdict.

24; Concerning Defendant’s first contention, we recognize that no direct evidence
was presented to establish that Defendant caused Andree’s injuries. But direct
evidence was not required. See, e.g., Montoya, 2015-NMSC-010, § 52 (recognizing
that evidence of a circumstantial nature may suffice to support a guilty verdict).

{25} Turning to Defendant’s second argument regarding gaps in Areana’s
testimony, we note that Areana was eight at the time she testified and—presumably
because of the passage of time since the incident and her young age when it
occurred—could not remember all details regarding the events about which she
testified. Yet despite the gaps in her testimony, she furnished key pieces of evidence
by stating that, the day Andree went to the hospital, and while her mother was at
work, Andree “got hit by someone” other than her and also that she never hit Andree
with the Etch-A-Sketch. Areana’s testimony supported a finding of guilt.

26} Finally, with regard to Defendant’s third contention, Areana’s testimony
narrowed the inferences required for the jury to conclude that Defendant committed
child abuse. Defendant himself drew the decisive inference when he testified about
his and Ashley’s text message exchange about Andree’s forty-five bruises. He
elaborated on one of his text messages by saying that, “[I]t was only Areana and |

that were in the apartment. It was us two that were there. So if [Ashley has] already

[shifted fault from] Areana . . . I automatically figured that she was blaming me. It’s
only human.”

7; The jury was presented with evidence that Areana did not cause his injuries.
It was also presented with evidence that the injuries occurred within the seventy-two
hours before the evening of August 3. It is reasonable for the jury to infer, as
Defendant did, that if Areana did not cause the injuries, and only she and Defendant
were in the apartment with Andree, then it was Defendant who caused them. We
conclude, therefore, that sufficient evidence supports the jury’s finding of guilt.

III. We Do Not Review Defendant’s Claim Related to the Admission of
Evidence of Injuries

283. Defendant argues that certain medical testimony “added nothing of value to
the trial, confused the jury, and prejudiced [Defendant].” Defendant fails in his briefs
to cite the specific medical testimony which he finds objectionable, fails to cite the
portion of the trial transcript where his objection to the admission of this testimony
was preserved, fails to cite to applicable New Mexico decisions and—in devoting a
scant page and a half in his brief in chief to the matter—fails to adequately develop
his argument. We therefore decline to review this issue. See Rule 12-318(A)(4);
State v. Dombos, 2008-NMCA-035, § 42, 143 N.M. 668, 180 P.3d 675 (“[N]o error
is shown when a party fails to provide references to the transcript or the record where

the issue was raised below[.]”); Headley v. Morgan Mgmt. Corp., 2005-NMCA-045,

—

10
1]

13
14

q 15, 137 N.M. 339, 110 P.3d 1076 (“We will not review unclear arguments, or guess
at what [a party’s] arguments might be.”).
IV. Defendant’s Conviction Did Not Result From Cumulative Error

(29 Having recognized no error as asserted by Defendant, we need not analyze

whether his conviction was the result of cumulative error. See State v. Aragon, 1999-
NMCA-060, ¢ 19, 127 N.M. 393, 981 P.2d 1211.
CONCLUSION
30} We affirm.
34) ITISSO ORDERED.
Sotto Bogard

KRISTINA BOGARDUS, Judge

WE CONCUR:

s.d~

J. MILES HANISEE, Judge

BRIANA H. ZAMORA, Judge

August 23, 2019- State of New Mexico v. Zachary Kriesel, No. A-1-CA-35224

Texto completo

OCR transcription for search; preserved printed pages are authoritative

Continue sua pesquisa no ChatGPT ou Claude