State v. Bailee F.

Opinion

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. No. 32,406 5 BAILEE F., 6 Child-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY 8 Karen L. Parsons, District Judge

9 Gary K. King, Attorney General 10 Pranava Upadrashta, Assistant Attorney General 11 Santa Fe, NM

12 for Appellee

13 Bennett J. Baur, Acting Chief Public Defender 14 J.K. Theodosia Johnson, Assistant Appellate Defender 15 Santa Fe, NM

16 for Appellant 17 MEMORANDUM OPINION 18 SUTIN, Judge.

1 After a jury trial, Child was adjudicated to have committed the delinquent act 2 of public affray, pursuant to NMSA 1978, Section 30-20-02 (1963); she was found not 3 to have committed the delinquent act of battery upon a school employee. [RP 102] 4 This Court’s calendar notice proposed summary affirmance. [CN 1] Child has filed 5 a memorandum in opposition that we have duly considered. [MIO] Unpersuaded, 6 however, we affirm. 7 DISCUSSION 8 Issue 1 - Child was not entitled to a twelve-member jury. In her 9 memorandum, Child continues to argue that the district court erred in refusing to grant 10 her a twelve-member, rather than a six-member jury, relying on State v. Franklin, 78 11 N.M. 127, 129, 428 P.2d 982, 984 (1967), and State v. Boyer, 103 N.M. 655, 658-60, 12 712 P.2d 1, 4-6 (Ct. App. 1985). [MIO 5-7] We affirm the district court on this issue.

13 NMSA 1978, Section 32A-2-16(A) (2009) specifically provides that

14 A delinquent child facing a juvenile disposition shall be entitled to a 15 six-member jury. If the children's court attorney has filed a motion to 16 invoke an adult sentence, the child is entitled to a twelve-member jury.

17 Child relies on New Mexico Constitution, Article II, Section 12 [DS 4], to argue 18 that she was entitled to a twelve-member jury.

19 The right of trial by jury as it has heretofore existed shall be secured to 20 all and remain inviolate. In all cases triable in courts inferior to the

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1 district court the jury may consist of six. The legislature may provide 2 that verdicts in civil cases may be rendered by less than a unanimous 3 vote of the jury. 4 5 Id. In State v. Muniz, 2003-NMSC-021, ¶ 6, 134 N.M. 152, 74 P.3d 86, superceded

6 by statute as stated in State v. Jones, 2010-NMSC-012, 148 N.M. 1, 229 P.3d 474, our 7 Supreme Court discussed the difference in the jurisdiction of district courts as opposed 8 to children’s courts with regard to the three classes of juvenile offenders: serious 9 youthful offenders, youthful offenders, and delinquent offenders. “Serious youthful 10 offenders are tried in district court rather than children’s court and, if convicted of first 11 degree murder, face adult sentences.” Id. “Youthful offenders” are tried in children’s 12 court, which “must determine whether the child is amenable to treatment or 13 rehabilitation as a child in available facilities.” Id. (internal quotation marks and 14 citation omitted). “Children who commit other, non-designated crimes are classified 15 as ‘delinquent offenders[]’ and are subject to juvenile dispositions only.” Id. (citation 16 omitted). “For those children, the children’s court has no jurisdiction to impose an 17 adult sentence.” Id. 18 In this case, the petition alleged Child to be “a delinquent child.” [RP 1-2] 19 Section 32A-2-16(A) specifically provides that

20 A delinquent child facing a juvenile disposition shall be entitled to a 21 six-member jury. If the children’s court attorney has filed a motion to 22 invoke an adult sentence, the child is entitled to a twelve-member jury.

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1 Child filed a demand for a jury trial [RP 18] and was afforded a six-member jury. 2 Moreover, it does not appear that the State filed a motion to invoke an adult sentence 3 in this case such that Child would have been entitled to a twelve-member jury. See 4 id. 5 We affirm the district court on this issue. 6 Issue 2 - Insufficient evidence. Child contends that there was insufficient 7 evidence to find Child had committed the delinquent act of public affray when all the 8 witnesses testified that Destinii S. approached Child and was the initial aggressor 9 toward Child. [DS 4] In her memorandum, Child points out that she testified that 10 Destinii S. challenged Child to fight at least twice and that she declined to do so. 11 [MIO 1] She further testified that after Destinii S. insulted and pushed her she 12 removed her high heels so as to better be able to defend herself. [Id.] Child also 13 testified that she stood to defend herself, and the girls fought. [Id.] Child asserts that 14 while the prosecutor argued that Child’s acts of standing up and kicking off her shoes 15 demonstrated her agreement to fight, the “only actual evidence before the jury, 16 however, was that [Child] did not want to fight[.]” [MIO 4] We are not persuaded. 17 “The test for sufficiency of the evidence is whether substantial evidence of 18 either a direct or circumstantial nature exists to support a verdict of guilt beyond a 19 reasonable doubt with respect to every element essential to a conviction.” State v.

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1 Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks 2 and citation omitted). When considering the sufficiency of the evidence, the appellate 3 courts do not “evaluate the evidence to determine whether some hypothesis could be 4 designed which is consistent with a finding of innocence.” State v. Graham, 5 2005-NMSC-004, ¶ 13, 137 N.M. 197, 109 P.3d 285 (internal quotation marks and 6 citation omitted). Instead, we “view the evidence as a whole and indulge all 7 reasonable inferences in favor of the jury’s verdict[,]” id., while at the same time 8 asking whether “any rational trier of fact could have found the essential elements of 9 the crime beyond a reasonable doubt.” Id. ¶ 7 (emphasis, internal quotation marks, 10 and citation omitted). We measure the sufficiency of the evidence against the jury 11 instructions. See State v. Smith, 104 N.M. 729, 730, 726 P.2d 883, 884 (Ct. App. 12 1986) (“Jury instructions become the law of the case against which the sufficiency of 13 the evidence is to be measured.”). 14 In this case, however, although a jury trial was held and the district court read 15 instructions to the jury [RP 136-37 (3:00:01 PM - 3:08:28 PM)], no jury instructions 16 were filed in the record proper for this Court to review. Moreover, Child’s docketing 17 statement does not explain how the jury was improperly instructed, and Child did not 18 file a copy of any requested and rejected jury instructions. To the extent Child

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1 continues to argue that the only evidence presented supported that she acted in self- 2 defense [MIO 1, 4], we disagree. 3 Section 30-20-2 provides that

4 Public affray consists of two or more persons voluntarily or by 5 agreement engaging in any fight or using any blows or violence toward 6 each other in an angry or quarrelsome manner in any public place, to the 7 disturbance of others.

8 Whoever commits public affray is guilty of a petty misdemeanor. 9 The State presented testimony that at a high school campus in Lincoln County, New 10 Mexico, on or about October 31, 2011, Desirii S. was angry with Child about texting 11 a boy she was interested in or considered to be her boyfriend. [DS 3] Desirii S. 12 approached Child who was sitting at a table outside and pushed her; Child kicked off 13 her shoes, stood up, and the two girls physically and violently fought each other while 14 several students watched. [RP 128-34] The attorneys discussed whether self-defense 15 was legally a defense to public affray. [RP 135] In any case, however, besides the 16 elements of public affray, the district court instructed the jury that they must also find 17 that Child did not act in self-defense “due to the pushing.” [RP 136 (2:32:47 PM)] 18 While there was evidence that Child acted in self-defense sufficient to support 19 a jury instruction, the jury rejected Child’s characterization of the events. State v. 20 Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789 (“The reviewing court 21 does not weigh the evidence or substitute its judgment for that of the fact finder as

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1 long as there is sufficient evidence to support the verdict.”), overruled on other 2 grounds by Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683; see also 3 State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (“Contrary 4 evidence supporting acquittal does not provide a basis for reversal because the jury 5 is free to reject [the d]efendant’s version of the facts.”). We hold that, based on the 6 evidence presented, the jury could reasonably infer that Child and Desirii S. 7 “voluntarily or by agreement engag[ed] in [a] fight or us[ed] blows or violence toward 8 each other in an angry or quarrelsome manner in any public place, to the disturbance 9 of others.” Section 30-20-2. In this case, the “agreement” to fight could be inferred 10 to have occurred the minute Child took off her shoes, stood up, and fought. 11 CONCLUSION 12 We affirm the disposition finding that Child committed the delinquent act of 13 public affray as supported by substantial evidence. 14 IT IS SO ORDERED.

15 __________________________________ 16 JONATHAN B. SUTIN, Judge

17 WE CONCUR:

18 _______________________________ 19 JAMES J. WECHSLER, Judge

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1 _______________________________ 2 LINDA M. VANZI, Judge