In re Garrison P.

2002 NMCA 094, 52 P.3d 998, 132 N.M. 626
CourtNew Mexico Court of Appeals
DecidedJuly 16, 2002
DocketNo. 22,314
StatusPublished
Cited by3 cases

This text of 2002 NMCA 094 (In re Garrison P.) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Garrison P., 2002 NMCA 094, 52 P.3d 998, 132 N.M. 626 (N.M. Ct. App. 2002).

Opinion

OPINION

KENNEDY, Judge.

{1} This case presents a number of errors in the conduct of a juvenile proceeding. Garrison P. (Child) was tried for the offense of aggravated battery on Kathleen Thomas (Thomas). At the close of trial, the prosecution sought and obtained leave from the court to amend the delinquency petition to add a new charge in conformance with the evidence adduced in the adjudicatory hearing. We hold that allowing such a motion is not permitted by the Children’s Court Rules and that Child was denied due process by the court’s action. Also, in conformance with our recently filed opinion In re Crystal L., 2002-NMCA-063, 132 N.M. 349, 48 P.3d 87 (2002), cert. denied, (No. 27,513 (N.M. filed June 3, 2002)), we note that the trial court had no jurisdiction to enter a consent decree following the adjudicatory hearing that resulted in a finding of delinquency. We reverse the trial court’s adjudication of delinquency and dismiss the petition. The question of the consent decree is therefore rendered moot.

FACTUAL AND PROCEDURAL BACKGROUND

{2} The underlying facts of this case involve ongoing bad blood between next-door neighbors. On the day the events occurred, a ball went from the alleged victims’ yard into Child’s. Phillip Thompson (Thompson), a 17-year-old youth from next door, followed the ball over the fence shortly thereafter. Thompson testified that Child threatened him with the bat, telling him to get out of Child’s yard. Once Thompson was back in his own yard, he and Child got into an argument. Ultimately, Thomas, Thompson’s aunt, who had been drinking that day, also got into an argument with Child. Thomas conceded that she had been intoxicated and that she may have used some obscenities directed at Child. Child testified that she yelled racial epithets at him. It is at this time that Child allegedly “popped” her lightly on the cheek with the baseball bat. At most, according to the testimony, this resulted in no more than a red mark on Thomas’ cheek. Thompson did not see the bat strike Thomas.

{3} Child went to trial on a delinquency petition alleging that he had committed the delinquent act of aggravated battery against Thomas in violation of the applicable criminal statute. Conceding at the completion of the trial that the charge of aggravated battery against Thomas had not been proven, the State moved during closing arguments for the petition to be amended to charge Child with simple assault against Thompson (a different victim). The court allowed the amendment of the petition to conform with the evidence stating that it was “routinely done.” The court found that Child was not delinquent with regard to the original charge, but that he had committed the delinquent act of assault (petty misdemeanor) against Thompson. The court entered judgment finding him to be delinquent on January 25, 2001. At that time, the court indicated that a consent decree might ultimately be the solution to the case, but it would await probation orders in the meantime. The court entered a Probation Agreement and Order on February 15, 2001, followed by a Grade Court Order on March 5, 2001. On March 28, 2001, the trial court entered a Consent Decree in the case, finding that Child had been “found guilty in a bench trial of: Aggravated Assault.”

DISCUSSION

Defense Counsel Properly Preserved the Issue for Appeal

{4} As the closing argument commenced, the State conceded that there was likely insufficient evidence to find Child delinquent based on the original charge of aggravated battery against Thomas. Thus, in an attempt to “amend” the petition to conform to the evidence, counsel moved to include previously uncharged behavior against a different victim than alleged in the original petition. Defense counsel objected, commenting that the rules did not permit such an amendment. Defense counsel argued that although the “civil” rules permit such action, the “criminal” rules do not. The trial court ruled on the objection, stating that the criminal rules allow such amendments and that they were “routine.”

{5} The State argues that the objection did not state “the ground or grounds of the objection or motion ... with sufficient specificity to alert the mind of the trial court to the claimed error or errors, ... [so] that a ruling thereon [could] then be invoked.” State v. Elliott, 2001-NMCA-108, ¶21, 131 N.M. 390, 37 P.3d 107 (internal quotation marks and citation omitted). We hold that Child’s objection was sufficient. The objection raised the issue that the applicable rules of the court did not countenance amendments to conform to the evidence. The trial court responded in kind. Proper preservation does not always require that counsel refer to the specific rule violated when making the objection. See Albertson v. State, 89 N.M. 499, 501, 554 P.2d 661, 663 (1976) (holding that an objection based on relevancy was specific enough to alert the trial court that the testimony was improper under the rule addressing the admissibility of prior misdemeanor offenses); cf. State v. Jacobs, 2000-NMSC-026, ¶ 12, 129 N.M. 448, 10 P.3d 127 (argument concerning joinder based only on jury’s potential to misuse evidence and not violation of rule failed to preserve issue).

{6} In addition to the argument that such amendment of the petition violates the court rules, Child argues on appeal that it violated his constitutional right to due process under the Fourteenth Amendment and his Sixth Amendment right to counsel and right to know the nature of the charges against him. Although some of these are matters that form the underpinnings of the law as discussed below, we agree with the State, however, that defense counsel did not preserve these constitutional arguments and accordingly, we do not specifically address them.

Adding New Charges During Closing Argument Is Prohibited Under Children’s Court Rule 10-103 NMRA 2002

{7} The Children’s Court Rules specifically address the amendment of an offense in the petition. Rule 10-103(G) states that “[a]t any time prior to commencement of the adjudicatory hearing in a delinquency proceeding ... the court may allow the petition to be amended to charge the respondent with an additional or different offense.” This paragraph is “designed to allow the addition of a new or different offense to a petition if the motion to amend is made before the adjudicatory hearing begins.” Rule 10-103 committee commentary (emphasis added). Thus, the rule contains no authority to amend the charging document in a delinquency case after commencement of the adjudicatory hearing.

{8} The State, however, attempts to rely on the provision in Rule 10-103(F) that permits amendments in order to correct mistakes in the pleadings. This subsection states that “[t]he court may at any time prior to an adjudication on the merits cause the pleadings to be amended to cure errors, defects, omissions, imperfections or variances if substantial rights of the respondent are not prejudiced.” Id. (emphasis added). The State’s argument is inapposite to the present situation for two reasons. First, subsection F addresses minor technical amendments to a petition, not major substantive amendments like the addition of different criminal charges. The committee commentary on this subsection states that it is patterned after Rule 5-204 NMRA 2002 of the Rules of Criminal Procedure for the District Courts.

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Cite This Page — Counsel Stack

Bluebook (online)
2002 NMCA 094, 52 P.3d 998, 132 N.M. 626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-garrison-p-nmctapp-2002.