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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: ________________
3 Filing Date: November 15, 2022
4 No. A-1-CA-39723
5 STATE OF NEW MEXICO,
6 Plaintiff-Appellee,
7 v.
8 SHAWN D. DOYAL,
9 Defendant-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 11 Steven Blankinship, District Judge
12 Hector H. Balderas, Attorney General 13 Laurie Blevins, Assistant Attorney General 14 Santa Fe, NM
15 for Appellee
16 Gary C. Mitchell, P.C. 17 Gary C. Mitchell 18 Ruidoso, NM
19 for Appellant 1 OPINION
2 BOGARDUS, Judge.
3 {1} Defendant Shawn D. Doyal appeals his conviction for great bodily injury by
4 vehicle (reckless driving), contrary to NMSA 1978, Section 66-8-101(E) (2016).
5 Defendant argues (1) the district court erred in failing to give Defendant’s requested
6 jury instructions; (2) the evidence was insufficient to support his conviction; and (3)
7 the district court erred in the manner in which it seated the witnesses and the jury
8 during the trial due to COVID-19 considerations. We affirm.
9 BACKGROUND
10 {2} Defendant lost control of his truck as he was driving through Cloudcroft, New
11 Mexico, and struck an oncoming car causing serious injuries to both the victims, one
12 on the driver’s side and the other, on the passenger’s side. Defendant was unfamiliar
13 with the road, driving it for the first time the night of the accident. Defendant drove
14 through the populous part of Cloudcroft at the speed limit, but as soon as he left the
15 area, he accelerated from thirty-five to sixty-six miles per hour over a one-half-mile
16 stretch of the highway. Defendant testified that he had seen elk and deer both on and
17 beside the road. The section of the road was curvy and mountainous, and there were
18 numerous signs along the roadside describing dangerous conditions and notifying
19 drivers of the reduced speed limit. These signs included three thirty-five mile-per-
20 hour speed limit signs, a safety corridor sign, a sign recommending truckers to use a
21 lower gear because of a six percent downgrade, and a sign warning of a sharp, 1 fishhook-shaped curve ahead. Defendant drove into the fishhook-shaped curve, lost
2 control of his vehicle, crossed into the oncoming lane, and struck the driver’s side
3 of the victims’ car. Both victims, a husband and wife, were injured; the wife, who
4 was the driver, suffered great bodily harm, including permanent injuries.
5 {3} The State charged Defendant with one count of great bodily harm by vehicle
6 due to reckless driving, one count of driving on the wrong side of the road, and one
7 count of speeding. The trial took place during the COVID-19 pandemic, in a small
8 courtroom where the witnesses, the victims, and spectators sat among the jurors.
9 Everyone sat six feet apart and wore a mask due to social distancing guidelines in
10 effect at the time.
11 {4} At the close of the State’s case, Defendant moved for directed verdict, arguing
12 that speeding alone is insufficient to prove willful and wanton disregard of the safety
13 of others. The district court denied the motion. Further, Defendant requested that the
14 district court give two special jury instructions, which deviated from the uniform
15 jury instructions. Defendant’s requested Jury Instruction No. 4 informed the jury that
16 speeding is insufficient to constitute reckless driving. Defendant’s requested Jury
17 Instruction No. 5 modified the term “reckless” as defined by UJI 14-241 NMRA.
18 The district court refused both of Defendant’s requested jury instructions.
19 {5} The jury found Defendant guilty on all counts. Defendant then moved to set
20 aside the verdict and for a new trial by renewing his motions made at trial,
2 1 “especially [those] considering jury instructions and directed verdict,” and further
2 argued that jury intimidation and influence took place when witnesses sat among the
3 jury. The district court denied Defendant’s motion in a thorough written order.
4 Defendant appeals.
5 DISCUSSION
6 I. The District Court Did Not Err in Refusing to Give Defendant’s 7 Requested Jury Instructions
8 {6} Defendant argues that the district court erred when it refused to give
9 Defendant’s requested jury instructions. “The propriety of denying a jury instruction
10 is a mixed question of law and fact that we review de novo.” State v. Gaines, 2001-
11 NMSC-036, ¶ 4, 131 N.M. 347, 36 P.3d 438. “There is a presumption of correctness
12 in the district court’s rulings. Accordingly, it is [the d]efendant’s burden on appeal
13 to demonstrate any claimed error below.” State v. Aragon, 1999-NMCA-060, ¶ 10,
14 127 N.M. 393, 981 P.2d 1211 (alterations, internal quotation marks, and citation
15 omitted). Jury instructions must present the law fairly and accurately. See Gonzales
16 v. N.M. Dep’t of Health, 2000-NMSC-029, ¶ 28, 129 N.M. 586, 11 P.3d 550. When
17 a uniform jury instruction exists, as in this case, the district court must use the
18 instruction without substantive modification. State v. Caldwell, 2008-NMCA-049,
19 ¶ 24, 143 N.M. 792, 182 P.3d 775. The district court does not err when it declines to
20 use “an instruction that is confusing or misleading.” State v. Soutar, 2012-NMCA-
21 024, ¶ 21, 272 P.3d 154. We consider each requested instruction in turn.
3 1 A. Defendant’s Requested Jury Instruction No. 4
2 {7} The district court refused Defendant’s requested Jury Instruction No. 4, which
3 would have instructed the jury that “speeding alone is insufficient to constitute
4 reckless driving.” Defendant requested the instruction based on State v. Munoz,
5 which held that “speeding alone is insufficient to constitute recklessness.” 2014-
6 NMCA-101, ¶ 10, 336 P.3d 424.
7 {8} Defendant argues that by refusing to give this instruction the district court
8 “fail[ed] to let [the jury] know what the law is.” We disagree. Our Supreme Court
9 resolved this issue in State v. Simpson, 1993-NMSC-073, 116 N.M. 768, 867 P.2d
10 1150. In Simpson, the defendant argued that the district court erred in declining his
11 requested instruction, which stated in part, “a violation of speeding law is not in and
12 of itself sufficient to find the defendant was driving recklessly.” Id. ¶ 20 (alteration
13 and internal quotation marks omitted). Instead, the district court provided an
14 instruction practically identical to the one provided to the jury here. See id. ¶ 21
15 (instructing the jury that “to find that the defendant was driving recklessly, [the jury]
16 must find that [the defendant] drove with willful disregard of the rights or safety of
17 others and at a speed or in a manner which endangered or was likely to endanger any
18 person or property” (emphasis and internal quotation marks omitted)). Our Supreme
19 Court held that it was unnecessary for the district court to give the defendant’s
20 requested instruction because the district court had already instructed the jury that
4 1 speeding alone was insufficient to establish reckless driving. Id. The Supreme Court
2 emphasized that the jury instruction that was given required the prosecution to meet
3 two elements: “willful disregard of the rights or safety of others” and speeding. Id.
4 (internal quotation marks omitted). The two elements in the instruction made it clear
5 to the jury that something besides speeding was required to convict the defendant.
6 See id.
7 {9} The same reasoning applies here. Pursuant to UJI 14-241, the district court
8 instructed the jury that “[f]or you to find that [D]efendant operated a motor vehicle
9 in a reckless manner, you must find that [D]efendant drove with willful disregard of
10 the safety of others and at a speed . . . likely to endanger any person.” (Emphasis
11 added.) Thus, the district court instructed the jury that to find Defendant guilty of
12 reckless driving, it had to find, in addition to speeding, that Defendant “drove with
13 willful disregard of the safety of others.” Accordingly, the district court did not err
14 in denying Defendant’s requested Jury Instruction No. 4.
15 B. Defendant’s Requested Jury Instruction No. 5
16 {10} The district court also refused Defendant’s requested Jury Instruction No. 5,
17 which modified UJI 14-241. Defendant contends that his modification uses the
18 proper criteria and includes elements required by statute and case law that the district
19 court ignored and that UJI 14-241 does not contain. We disagree.
5 1 {11} Defendant’s proposed instruction sought to add the following language to UJI
2 14-241:
3 [D]efendant knew or should have known [his] conduct created a 4 substantial and foreseeable risk, [he] disregarded that risk[,] and [he] 5 was wholly indifferent to the consequences of the conduct and to the 6 welfare and safety of others.
7 Ordinary negligence or careless driving is not a willful disregard 8 of the safety of others.
9 Defendant contends his proposed modification to UJI 14-241 more accurately
10 presents the state of mind requirement as stated in Valencia v. Dixon, 1971-NMCA-
11 108, 83 N.M. 70, 488 P.2d 120. Further, Defendant argues that UJI 14-241, unless
12 modified, fails to present to the jury the element of “conscious wrongdoing” as
13 required by State v. Yarborough, 1996-NMSC-068, ¶ 22, 122 N.M. 596, 930 P.2d
14 131, and State v. Omar-Muhammad, 1985-NMSC-006, ¶¶ 20-22, 102 N.M. 274, 694
15 P.2d 922.1
16 {12} Defendant fails to explain how Valencia modifies the recklessness standard
17 used in UJI 14-241. Valencia is a civil case where this Court reversed a grant of
18 directed verdict for the plaintiff and concluded that the defendant’s guilty plea for
Defendant also argues that the element of due caution and circumspection in 1
NMSA 1978, Section 66-8-113 (1987) creates a requirement of subjective knowledge by a defendant of the danger or risk involved to others by his actions. However, this argument was only raised in the reply brief, therefore we do not address it. See Guest v. Berardinelli, 2008-NMCA-144, ¶ 36, 145 N.M. 186, 195 P.3d 353 (“[W]e do not consider arguments raised in a reply brief for the first time.”).
6 1 reckless driving, together with other facts and circumstances, created an issue of fact
2 regarding whether the defendant was heedless or reckless in operating his vehicle
3 pursuant to the automobile guest statute. 1971-NMCA-108, ¶ 14. In so ruling, this
4 Court identified the defendant’s state of mind to be the distinguishing factor between
5 negligence and reckless disregard. Id. ¶ 17. “To be heedless or reckless, evidence
6 must show that this particular state of mind is one of utter irresponsibility or
7 conscious abandonment of any consideration for the safety of [others].” Id.
8 Consistent with the holding in Valencia, the district court’s instruction here required
9 the jury to find that Defendant “drove with willful disregard of the safety of others.”
10 See UJI 14-241. The instruction given therefore required the State to prove a state of
11 mind beyond civil negligence—one where Defendant acted with a conscious
12 disregard of the safety of others.
13 {13} As to Defendant’s argument that the instruction given by the district court was
14 insufficient because it failed to convey the element of conscious wrongdoing,
15 Defendant ignores Jury Instruction No. 10, which instructed the jury that to find
16 Defendant guilty, the State must prove beyond a reasonable doubt that “[D]efendant
17 acted intentionally when he committed the crime.” See UJI 14-141 NMRA.
18 Conscious wrongdoing is “the purposeful doing of an act that the law declares to be
19 a crime.” State v. Brown, 1996-NMSC-073, ¶ 22, 122 N.M. 724, 931 P.2d 69
20 (internal quotation marks and citation omitted). Considered together, Jury
7 1 Instructions Nos. 6 and 10 fairly and accurately present the law. Accordingly,
2 Defendant has failed to meet his burden to demonstrate that the district court erred
3 in refusing to give Defendant’s requested Jury Instruction No. 5.
4 II. The Evidence Was Sufficient to Support Conviction for Great Bodily 5 Harm by Reckless Driving
6 {14} Defendant challenges the sufficiency of the evidence regarding recklessness,
7 claiming that his only transgression was to drive too fast, which is insufficient to
8 prove he acted in a reckless manner. We conclude that the State provided sufficient
9 evidence, beyond Defendant’s act of speeding, for a rational jury to find that
10 Defendant drove in a reckless manner.
11 {15} “The test for sufficiency of the evidence is whether substantial evidence of
12 either a direct or circumstantial nature exists to support a verdict of guilty beyond a
13 reasonable doubt with respect to every element essential to a conviction.” State v.
14 Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and
15 citation omitted). “Substantial evidence is relevant evidence that a reasonable mind
16 might accept as adequate to support a conclusion.” Id. ¶ 53 (alteration, internal
17 quotation marks, and citation omitted). When reviewing for substantial evidence, we
18 “view[] the evidence in the light most favorable to the guilty verdict, indulging all
19 reasonable inferences and resolving all conflicts in the evidence in favor of the
20 verdict.” Id. ¶ 52 (internal quotation marks and citation omitted). We also disregard
21 all evidence and inferences that support a different result. See State v. Rojo, 1999-
8 1 NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. With these principles in mind, we
2 consider whether the jury “could have found the essential elements of the crime
3 beyond a reasonable doubt.” State v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d 409
4 (internal quotation marks and citation omitted).
5 {16} We measure the sufficiency of the evidence against the jury instructions given,
6 which become the law of the case. See State v. Jackson, 2018-NMCA-066, ¶ 22, 429
7 P.3d 674. The district court instructed the jury that a conviction for great bodily harm
8 by reckless driving required a finding that Defendant “operated a motor vehicle . . .
9 in a reckless manner” and further defined reckless as driving with “willful disregard
10 of the safety of others and at a speed or in a manner that endangered or was likely to
11 endanger any person.” See UJI 14-240D NMRA; UJI 14-241.
12 {17} Defendant concedes that he was speeding, but argues that “speeding alone is
13 insufficient to constitute recklessness.” See Munoz, 2014-NMCA-101, ¶ 10. We
14 agree with this general statement, however, speeding is just one factor for the jury
15 to consider when addressing whether a defendant acted recklessly. See id. ¶ 13.
16 {18} Defendant cites a number of cases in which a driver was convicted of reckless
17 driving that he contends contain facts “far worse than [the facts] here.” Nonetheless,
18 our jurisprudence supports a totality of the circumstances approach in which a jury
19 considers all contributing factors to determine whether a defendant acted recklessly.
20 See id. (holding that speeding “is one of many other contributing factors for the jury
9 1 to consider when addressing whether [the d]efendant acted recklessly”). In assessing
2 the totality of the circumstances, we look to “a driver’s actions leading up to the
3 collision . . . as a factor contributing to recklessness.” Id.
4 {19} For example, in State v. Sandoval, 1975-NMCA-096, ¶ 7, 88 N.M. 267, 539
5 P.2d 1029, the defendant’s driving speed in excess of the legal speed limit, the
6 heavily trafficked street where the accident took place, the defendant’s actions
7 before the accident,2 and the fact that the defendant had been drinking, considered
8 together was sufficient evidence to support the defendant’s conviction of driving
9 recklessly. Similarly, in Munoz, 2014-NMCA-101, ¶ 1, this Court concluded that the
10 defendant disregarding a police warning to slow down, veering his vehicle into the
11 crash zone, laughing, and speeding provided sufficient evidence for a rational jury
12 to find that the defendant acted recklessly.
13 {20} The circumstances presented to the jury in this case, particularly those actions
14 leading up to the collision, were also sufficient to establish recklessness. Before the
15 collision, Defendant encountered numerous signs warning him of the danger of the
16 road ahead. Further, Defendant testified that he was unfamiliar with the road, that it
17 was already dark, and that he was wary of deer and elk on the road. The curvy road
The defendant in Sandoval “revved up his engine, slammed on his breaks,” 2
“engaged in showing off of a ‘hot-rod’ type vehicle,” and would “rev up and slow down the engine and attempt to ‘leave rubber’ when he passed young members of the opposite sex.” Id.
10 1 only had two lanes, with no passing lane, and a mountain on one side of the road
2 with a guardrail on the other to prevent vehicles from going over the drop-off.
3 Despite these circumstances, Defendant accelerated from thirty-five to sixty-six
4 miles per hour over a one-half-mile stretch of the highway leading to the curve. The
5 fact that the collision occurred immediately after passing all the warning signs, that
6 it was already dark, and that Defendant was unfamiliar with the road are compelling
7 circumstances from which a reasonable jury could infer that Defendant was not only
8 speeding but that he also willfully disregarded the warnings and the condition of the
9 roadway. It was also reasonable for the jury to find that disregarding the warnings
10 and the hazardous road terrain while accelerating to almost twice the speed limit
11 constituted a disregard for the rights and safety of others.
12 {21} Defendant argues that the excessive number of signs on the highway were not
13 a warning as to the danger of the road ahead, but rather a distraction; moreover, the
14 guardrail and a cut in the trees created the appearance that the road went straight.
15 However, having heard Defendant’s explanation, we presume that the jury found
16 otherwise, and we decline to reweigh the evidence. See Rojo, 1999-NMSC-001, ¶ 19
17 (noting that “the jury is free to reject [the d]efendant’s version of the facts”).
18 {22} Thus, viewing all evidence in the light most favorable to the verdict, and
19 disregarding contrary evidence and inferences, we conclude that there was sufficient
20 evidence to support Defendant’s convictions for great bodily harm by reckless
11 1 driving. See State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d
2 176.
3 III. The District Court Did Not Err in the Manner in Which It Seated 4 Witnesses and the Jury Due to COVID-19 Considerations
5 {23} Because of the COVID-19 pandemic, the district court took numerous actions
6 to implement precautionary measures designed to keep court staff and trial
7 participants safe. One such measure during trial was special seating in the gallery of
8 the courtroom in order to accommodate safe social distancing. Jurors, witnesses, and
9 spectators were all seated in the gallery, with the caveat that the individuals would
10 be socially distanced, wearing facemasks, which would conceal any facial
11 expressions, and seated in a forward-facing manner. After the jury found Defendant
12 guilty, Defendant moved to set aside the jury verdict and for a new trial, arguing that
13 the seating arrangement violated his right to a fair trial under both the federal and
14 state Constitutions. The district court denied the motion, and Defendant appeals,
15 arguing that by seating the victims, witnesses, and spectators in the same courtroom
16 area as the jurors, the district court deprived him of a “fair trial by an impartial jury.”
17 However, as we explain, Defendant failed to preserve this issue during trial, and the
18 district court did not err in the manner in which it seated the witnesses and jury.
19 {24} “In order to preserve an issue for appeal, a defendant must make a timely
20 objection that specifically apprises the [district] court of the nature of the claimed
21 error and invokes an intelligent ruling thereon.” Montoya, 2015-NMSC-010, ¶ 45
12 1 (internal quotation marks and citation omitted). A motion for a new trial is not
2 sufficient to preserve an issue that was not otherwise raised during trial proceedings.
3 See State v. Pacheco, 2007-NMSC-009, ¶¶ 7-8, 141 N.M. 340, 155 P.3d 745
4 (determining that because the defendant raised his claim of error for the first time in
5 a motion for a new trial, and the defendant had the ability to object to the error
6 throughout the trial, the claim was not properly preserved for appellate review).
7 {25} Defendant failed to make a timely objection that would have given the district
8 court the opportunity to correct any error. Defendant did not request the district court
9 move the witnesses or spectators from the gallery during trial, nor did Defendant
10 object to the courtroom setup before the trial began. Because Defendant only raised
11 the issue in his post-trial motion, the issue is not preserved absent a showing of
12 fundamental error. See Rule 12-321(B)(2) NMRA (providing an exception to the
13 preservation rule for questions involving fundamental error).
14 {26} The district court did not err in the manner in which it seated witnesses,
15 spectators, and the jury. Defendant argues that seating witnesses, spectators, and
16 jurors together caused jury intimidation and thus deprived Defendant of an impartial
17 jury. “An impartial jury is one in which each and every juror is totally free from any
18 impartiality whatsoever.” Fuson v. State, 1987-NMSC-034, ¶ 5, 105 N.M. 632, 735
19 P.2d 1138 (internal quotation marks and citation omitted). The seating arrangement
20 imposed by the district court simply required the witnesses, spectators, and jurors to
13 1 sit in the gallery to accommodate the requisite social distancing. See New Mexico
2 Supreme Court Order No. 20-8500-025 at 12 (July 6, 2020),
3 https://www.nmcourts.gov/wp-content/uploads/2020/12/Order-No_-20-8500-025-
4 Order-Adopting-PHE-Protocols-for-Safe-and-Effective-Operation-of-NM-Courts-
5 7-6-20-with-PHE-Protocols-Attached-1.pdf (requiring district courts to maintain “a
6 minimum distance of six (6) feet in each direction between every individual
7 participating in the trial proceedings”). Everyone was seated facing forward, socially
8 distanced, wearing facemasks, which necessarily concealed any facial expressions.
9 There is no evidence that any of the witnesses or spectators improperly
10 communicated with the jurors. Nor did any juror express concern to the bailiff who
11 was present with the jury during trial. Seating witnesses, spectators, and jurors
12 together in the gallery to accommodate safe social distancing, without evidence of
13 improper conduct, such as communication, interference, or intimidation is
14 insufficient to establish that Defendant was deprived of an impartial jury.
15 Accordingly, we conclude that the district court did not err in the manner in which
16 it seated the witnesses and the jury.
17 CONCLUSION
18 {27} For the foregoing reasons, we affirm.
19 {28} IT IS SO ORDERED.
20 _________________________________ 21 KRISTINA BOGARDUS, Judge
14 1 WE CONCUR:
2 _________________________________ 3 SHAMMARA H. HENDERSON, Judge
4 _________________________________ 5 MICHAEL D. BUSTAMANTE, Judge, retired, sitting by designation