State v. Kuykendall

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. 32,612 5 MIRANDA B. KUYKENDALL, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 8 J. Richard Brown, District Judge

9 Gary K. King, Attorney General 10 Yvonne M. Chicoine, Assistant Attorney General 11 Santa Fe, NM

12 for Appellee

13 Jorge A. Alvarado, Chief Public Defender 14 Mary Barket, Assistant Appellate Defender 15 Santa Fe, NM

16 for Appellant 17 MEMORANDUM OPINION 18 VANZI, Judge.

1 {1} Defendant Miranda Kuykendall was convicted of negligently permitting child 2 abuse resulting in the death of her son B.K. and negligently permitting child abuse not 3 resulting in the death or great bodily harm of her son T.C., contrary to NMSA 1978, 4 Section 30-6-1(D) (2009). Defendant appeals her conviction as to B.K. on various 5 grounds. She also appeals the district court’s determination that the convictions are 6 “serious violent offenses” for the purposes of the Earned Meritorious Deductions Act 7 (EMDA), NMSA 1978, § 33-2-34 (2006). We affirm Defendant’s conviction as to 8 B.K. because we conclude that (1) sufficient evidence supports her conviction, (2) the 9 jury was properly instructed, (3) expert scientific testimony regarding B.K.’s autopsy 10 and chemical blood testing results did not violate Defendant’s confrontation rights, 11 and (4) a clerical error on the verdict form submitted to the jury does not constitute 12 reversible error. However, we hold that the district court erred by not making 13 sufficient factual findings to support its decision that Defendant’s convictions are 14 serious violent offenses under the EMDA. We therefore reverse the district court’s 15 serious violent offense designation and remand for the district court to consider the 16 evidence and enter appropriate findings. On remand, we also direct the district court 17 to correct a clerical error on Defendant’s judgment and sentence. 18 BACKGROUND

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1 {2} On the evening of May 6, 2010, Defendant left her nearly four-year-old son, 2 T.C., and her twenty-two-month-old son, B.K., in the care of her boyfriend, Chris 3 Elliot, while she worked a night shift at Hobbs Healthcare. At approximately 6:00 a.m. 4 the next morning, Elliot called his father’s girlfriend, Lacresha Montgomery, “in a 5 panic” and told her to come to the house. When Montgomery arrived, Elliot placed 6 B.K. in the front seat of her truck and told her to take the child to the hospital. B.K. 7 was burned and bruised and was “ice cold” to the touch. Montgomery called 911 on 8 the way to the hospital. B.K. was pronounced dead at the scene. His manner of death 9 was later determined to be homicide resulting from multiple blunt force trauma, and 10 he had thermal injuries on his genitals, buttocks, lower abdomen, face, and legs. In 11 addition, B.K.’s blood tested positive for alcohol, a level of methamphetamine sixty 12 times higher than the therapeutic dose for an adult, and amphetamine. When police 13 officers found T.C., he had bruises and other injuries on his face, forehead, ear, neck, 14 arms, chest, back, pelvis, and buttocks. Elliot ultimately pleaded guilty for crimes 15 related to the death of B.K. and the abuse of T.C. 16 {3} The State charged Defendant with two crimes: intentional or negligent child 17 abuse resulting in death as to B.K., and intentional or negligent child abuse not 18 resulting in death or great bodily harm as to T.C. Prior to trial, the State announced 19 it was only proceeding on a theory of negligent child abuse. The State introduced the

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1 following evidence at trial. Defendant began dating Elliot in September 2009. 2 Defendant’s brother, who was living with the couple at the time, noticed bruises on 3 both children. Defendant’s mother also noticed bruises on the children during the time 4 that Defendant was living with Elliot. She testified that she told Defendant about these 5 bruises. In April 2010, Defendant, Elliot, and the children moved into their own 6 house, and Defendant testified that Elliot became “a lot more aggressive” both with 7 her and with the children. During this time, Elliot’s father, who frequently visited 8 Defendant, Elliot, and the children with Montgomery, testified that he saw bruises on 9 T.C. and knew that T.C. was being abused. 10 {4} Several weeks before B.K. died, when Defendant returned from work, Elliot 11 showed her “huge” bruises on B.K. Elliot claimed he had tripped over B.K. and some 12 tools left on the floor at the house but also admitted that some of the bruises were from 13 spanking B.K. too hard. Defendant testified that she doubted Elliot’s explanation. She 14 voiced her concerns to Montgomery several days later and told Montgomery she knew 15 Elliot was abusing B.K. when she was at work because B.K. had new bruises every 16 time she came home. According to Montgomery, Defendant said she needed to save 17 money so she could leave Elliot and get her children away from him before B.K. 18 ended up dead. After the above incident, and because of Defendant’s fears, 19 Montgomery and Elliot’s father let B.K. stay with them for several days until

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1 Defendant asked them to bring him back. Although Defendant claims she did not 2 know the extent of B.K.’s injuries, Elliot’s father testified that when he saw B.K., it 3 looked like he had been used as “a punching bag,” and Montgomery said B.K. was 4 bruised “from head to toe.” In a letter she later wrote to B.K.’s father, Defendant 5 acknowledged that she knew Elliot was abusing the children and that both boys would 6 cry whenever she left to go to work. The evidence also established that Elliot was both 7 using and dealing methamphetamine out of their house. In addition, before Defendant 8 left for work on May 6, 2010, Elliot became so incensed that he shattered a glass 9 against the wall. Defendant’s defense consisted primarily of her own testimony. She 10 also presented evidence about the barriers domestic violence raises to prevent a victim 11 from leaving. 12 {5} A jury convicted Defendant of both crimes. The district court mitigated 13 Defendant’s sentences by one-third and ran them concurrently. However, it found that 14 both offenses were serious violent offenses under the EMDA. This appeal followed. 15 Additional facts are provided as pertinent to our discussion of the issues. 16 DISCUSSION 17 {6} Defendant makes five claims of error: (1) that her conviction for negligent child 18 abuse resulting in the death of B.K. was not supported by sufficient evidence, (2) that 19 the jury was not properly instructed, (3) that the expert scientific testimony concerning

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1 B.K.’s autopsy and chemical blood testing results violated her confrontation rights, 2 (4) that a clerical error on the verdict form constituted reversible error, and (5) that the 3 district court wrongly designated her child abuse convictions “serious violent 4 offenses” under the EMDA. We address each issue in turn. 5 Sufficiency of the Evidence as to Count I 6 {7} Defendant first contends the evidence was not sufficient to sustain her 7 conviction for negligently permitting child abuse resulting in the death or great bodily 8 harm of B.K. “In reviewing the sufficiency of the evidence, we must view the 9 evidence in the light most favorable to the guilty verdict, indulging all reasonable 10 inferences and resolving all conflicts in the evidence in favor of the verdict.” State v. 11 Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. We then 12 determine “whether, after viewing the evidence in the light most favorable to the 13 prosecution, any rational trier of fact could have found the essential elements of the 14 crime beyond a reasonable doubt.” Id. (emphasis, internal quotation marks, and 15 citation omitted). We do not second guess the jury concerning witness credibility, the 16 weight of the evidence, or their judgment. State v. Garcia, 2011-NMSC-003, ¶ 5, 149 17 N.M. 185, 246 P.3d 1057. 18 {8} We turn to the jury instructions for the elements of the crime. See State v. Smith, 19 1986-NMCA-089, ¶ 7, 104 N.M. 729, 726 P.2d 883 (“Jury instructions become the

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1 law of the case against which the sufficiency of the evidence is to be measured.”). In 2 the present case, the jury was instructed that, to find Defendant guilty of negligently 3 permitting child abuse resulting in death or great bodily harm as charged in Count I, 4 the State had to prove the following elements beyond a reasonable doubt:

5 1. [Defendant] permitted [B.K.] to be placed in a situation which 6 endangered [his] life or health . . . ;

7 2. [D]efendant acted with reckless disregard and without 8 justification. To find that [Defendant] acted with reckless 9 disregard, you must find that [Defendant] knew or should have 10 known [D]efendant’s actions or failure to act created a substantial 11 and foreseeable risk, [D]efendant disregarded that risk and 12 [D]efendant was wholly indifferent to the consequences of the 13 conduct and to the welfare and safety of [B.K.]

14 ....

15 4. [Defendant’s] actions or failure to act resulted in the death of 16 [B.K.]

17 Defendant argues only that there was insufficient evidence to show she disregarded 18 a “substantial and foreseeable risk” of B.K.’s death or great bodily harm. Defendant 19 concedes that the evidence indicated Elliot had previously abused the children. 20 However, she contends it also showed that several weeks prior to B.K.’s death, she 21 “had taken steps to end that abuse,” that Elliot had since been abiding by her request 22 to not discipline the children, that “the children seemed happy and fine on the evening 23 of May 6,” that Elliot “was not intoxicated or outwardly hostile towards the children

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1 that night, and that the prior instances of abuse had mostly resulted in bruises with the 2 exception of B.K.’s broken ribs[,]” an injury Defendant claims she was not aware of. 3 Her basic premise appears to be that, although she knew or suspected Elliot abused 4 B.K., she did not know the abuse would result in Elliot killing B.K. when she went to 5 work on the evening of May 6, and, therefore, she should not be held accountable for 6 permitting the child abuse that resulted in his death. We are not persuaded. 7 {9} The language “substantial and foreseeable risk” is used in UJI 14-602 NMRA 8 to define “reckless disregard,” which in turn is a part of the definition for criminal 9 negligence in the child abuse statute, Section 30-6-1(A)(3). In State v. Chavez, our 10 Supreme Court identified several factors to be considered in determining whether a 11 defendant’s conduct created a substantial and foreseeable risk to a child. 2009-NMSC- 12 035, ¶ 45, 146 N.M. 434, 211 P.3d 891. Those factors are “the gravity of the 13 threatened harm, whether the defendant’s underlying conduct violates a separate 14 criminal statute, and the likelihood that harm will occur.” State v. Vasquez, 2010- 15 NMCA-041, ¶ 17, 148 N.M. 202, 232 P.3d 438 (internal quotation marks and citation 16 omitted). Of these, the gravity of the risk is the determinative factor because it “serves 17 to place an individual on notice that his [or her] conduct is perilous, and potentially 18 criminal, thereby satisfying due process concerns.” Id. (alteration in original) (internal 19 quotation marks and citation omitted).

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1 {10} Here, the evidence at trial established that Elliot had previously abused B.K., 2 that he admitted to spanking B.K. too hard a few weeks before B.K.’s death, and that 3 the result of that spanking left B.K. covered in bruises “from head to toe.” It also 4 confirmed that Elliot both used and dealt methamphetamine out of the house. Further, 5 Defendant admitted she was aware Elliot abused B.K. in the weeks and months before 6 his death and that Elliot himself informed her of the abuse he inflicted several weeks 7 before B.K.’s death, during which time it appeared that B.K. had been used as “a 8 punching bag.” The evidence also demonstrated that Defendant recognized—and 9 verbalized to Montgomery—the gravity of the risk Elliot posed to her children, 10 including that the abuse could be fatal to B.K. Even taking into account Defendant’s 11 view of the time leading up to B.K.’s death, viewing the evidence in the light most 12 favorable to the prosecution, we conclude that a rational trier of fact could easily find 13 that Defendant understood the grave risk inherent in leaving her twenty-two-month- 14 old child with her chronically abusive, drug-using boyfriend, and that she recklessly 15 disregarded that risk by leaving B.K. with Elliot. See id. ¶ 24 (holding that sufficient 16 evidence supported the defendant’s conviction for criminally negligent child abuse 17 where the defendant was aware of only one prior instance of abuse but still left her 18 child with the abuser, and the child died while under his care). Defendant’s conviction 19 for Count I was supported by sufficient evidence.

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1 Jury Instructions 2 {11} Defendant argues that three separate errors concerning the jury instructions 3 require retrial in this case. “When considering a defendant’s requested instructions, 4 we view the evidence in the light most favorable to the giving of the requested 5 instruction.” State v. Romero, 2005-NMCA-060, ¶ 8, 137 N.M. 456, 112 P.3d 1113. 6 Our review is de novo. Id. 7 {12} Defendant first argues the district court erred in refusing her request for a lesser 8 included instruction on abandonment resulting in death or great bodily harm for Count 9 I. The district court refused to give an abandonment instruction because it found that, 10 based on the definition of the crimes, child abandonment was a separate offense, not 11 a lesser included offense of negligent child abuse. It further found that no facts 12 presented at trial supported Defendant’s theory of abandonment because there was no 13 evidence of “neglect” as that term is defined in the child abandonment statute. 14 {13} A defendant is entitled to a lesser included offense instruction when “(1) the 15 lesser offense is included in the greater, charged offense; (2) there is evidence tending 16 to establish the lesser included offense and that evidence establishes that the lesser 17 offense is the highest degree of crime committed; and (3) the defendant has tendered 18 appropriate instructions preserving the issue.” State v. Jernigan, 2006-NMSC-003, ¶ 19 21, 139 N.M. 1, 127 P.3d 537. Without elaboration, Defendant argues that the jury

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1 should have been instructed on abandonment as a lesser included offense because the 2 State accused her of leaving B.K. in a dangerous situation with Elliot “without 3 sufficient oversight.” The State, on the other hand, contends that Defendant failed to 4 satisfy any of Jernigan’s three conditions. Although we conclude that Defendant 5 adequately preserved this issue for review on appeal, we otherwise agree with the 6 State. 7 {14} We briefly address the preservation issue first. While Rule 5-608(D) NMRA 8 provides that a correct written instruction must be tendered in order to preserve an 9 error for failure to instruct on any issue, our Supreme Court has stated that this rule 10 is “subject to flexible enforcement that is consistent with its underlying rationale.” 11 State v. Skippings, 2011-NMSC-021, ¶ 25, 150 N.M. 216, 258 P.3d 1008. The purpose 12 of the rule is to “alert the trial court to the defendant’s argument.” Id. (internal 13 quotation marks and citation omitted). 14 {15} Here, although Defendant did not submit the elements instruction for 15 abandonment resulting in great bodily harm or death as set forth in UJI 14-606, she 16 submitted step-down instructions and verdict forms for abandonment. Further, both 17 parties argued about the propriety of an abandonment instruction, and the district court 18 expressly denied Defendant’s request for such an instruction at trial. Under the 19 circumstances, the purpose of the rule was met and, under the third prong of Jernigan,

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1 Defendant adequately preserved her argument for appellate review. See 2006-NMSC- 2 003, ¶ 21. 3 {16} As we have noted, the definition of abuse of a child is set out in Section 30-6- 4 1(D) as “consist[ing] of a person knowingly, intentionally or negligently, and without 5 justifiable cause, causing or permitting a child to be” placed in a dangerous situation, 6 tortured, or exposed to the weather. Section 30-6-1(A)(3) defines “negligently” as 7 “refer[ring] to criminal negligence and means that a person knew or should have 8 known of the danger involved and acted with a reckless disregard for the safety or 9 health of the child.” See UJI 14-605. “Abandonment of a child consists of [a] parent 10 . . . intentionally leaving or abandoning the child under circumstances whereby the 11 child may or does suffer neglect.” Section 30-6-1(B). A comparison of the above 12 statutory elements reveals that each offense contains an element that the other does 13 not: the mens rea element. To prove abandonment, the state must show that the 14 defendant intended to commit the wrongful act or the consequence. UJI 14-606. In 15 other words, a person acts “intentionally” when she purposely does an act. UJI 14- 16 610. Negligently permitting child abuse, on the other hand, requires proof that the 17 defendant acted with reckless disregard: (1) the defendant knew or should have known 18 that his or her conduct created a substantial and foreseeable risk, and (2) the defendant 19 recklessly disregarded and was wholly indifferent to the consequences of his or her

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1 conduct and to the welfare and safety of the child. UJI 14-605. Since each crime 2 requires proof of a different element, we find there is a presumption that the 3 Legislature intended to punish these crimes separately. See State v. Sanchez, 2000- 4 NMSC-021, ¶ 33, 129 N.M. 284, 6 P.3d 486 (stating, in the context of double 5 jeopardy analysis, that “[w]hen the elements of the statutes are not subsumed within 6 the other, there is a presumption that the statutes punish distinct offenses”). Defendant 7 has provided no evidence of any contrary legislative intent. Accordingly, we affirm 8 the district court’s decision denying Defendant’s request for the jury to be instructed 9 on abandonment of a child as a lesser offense. 10 {17} Defendant makes two additional arguments related to the instructions given at 11 trial. Because she did not preserve either argument, we review both claims for 12 fundamental error. See State v. Boeglin, 1987-NMSC-002, ¶ 11, 105 N.M. 247, 731 13 P.2d 943 (explaining that, where a defendant fails to preserve an objection to jury 14 instructions at trial, the court may only grant relief in cases of fundamental error). 15 “Fundamental error only applies in exceptional circumstances when guilt is so 16 doubtful that it would shock the judicial conscience to allow the conviction to stand.” 17 State v. Baca, 1997-NMSC-045, ¶ 41, 124 N.M. 55, 946 P.2d 1066, overruled on 18 other grounds by State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783.

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1 The burden of demonstrating fundamental error is on the party alleging it. 2 Cunningham, 2000-NMSC-009, ¶ 21. 3 {18} Defendant first contends the jury should have been given a lesser included 4 instruction for child abuse not resulting in great bodily harm for Count I because “the 5 jury could have found that [she] disregarded a foreseeable risk of abuse not resulting 6 in great bodily harm, but did not disregard a foreseeable risk of death or great bodily 7 harm.” However, Defendant fails to argue, much less establish, how this hindsight- 8 driven speculation constitutes fundamental error, and we see none. See State v. Villa, 9 2004-NMSC-031, ¶ 16, 136 N.M. 367, 98 P.3d 1017 (concluding that there was no 10 fundamental error where the state made a strategic decision not to request lesser 11 included offense instructions at trial and its strategy did not prevail). 12 {19} Defendant also asserts that the instruction given for Count I, which is the 13 uniform jury instruction for negligently permitting child abuse, is erroneous because 14 the definition of “reckless disregard” provided in that instruction does not sufficiently 15 inform jurors what the mens rea for the crime is. Our task in reviewing for 16 fundamental error is to determine “whether a reasonable juror would have been 17 confused or misdirected by the jury instruction.” State v. Benally, 2001-NMSC-033, 18 ¶ 12, 131 N.M. 258, 34 P.3d 1134 (internal quotation marks and citation omitted). 19 “[J]uror confusion or misdirection may stem . . . from instructions which, through

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1 omission or misstatement, fail to provide the juror with an accurate rendition of the 2 relevant law.” Id. 3 {20} Citing Chavez, Defendant contends that the jury should have been explicitly 4 instructed “that the magnitude of the risk of the resulting harm occurring is an aspect 5 of whether the risk of harm was ‘substantial and foreseeable,’ ” and specifically that 6 the “resulting harm” informs whether the risk Defendant disregarded was substantial 7 and foreseeable. 2009-NMSC-035, ¶ 23. To the extent Defendant argues that the 8 magnitude of the harm the child actually incurs is determinative, she misconstrues 9 Chavez. That case makes clear that it is the magnitude of the risk of harm to which the 10 defendant exposes the child that guides our analysis. Id. ¶ 15. Defendant also 11 overlooks that Chavez cited favorably to the same mens rea standard about which she 12 complains. Id. ¶ 22. Specifically, our Supreme Court noted that, to find the accused 13 acted with the requisite mens rea, the jury is instructed that it must find that the 14 “defendant’s conduct created a substantial and foreseeable risk of harm,” and that the 15 instruction “aligns with the legislative purpose that animates the child endangerment 16 statute—to punish conduct that creates a truly significant risk of serious harm to 17 children.” Id. ¶ 22 (internal quotation marks and citations omitted). Based on the 18 evidence, the risk that Elliot would abuse the children was both foreseeable and

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1 substantial to Defendant. We conclude that the jury in this case was properly 2 instructed.1 3 Confrontation Clause and Expert Scientific Testimony 4 {21} Defendant makes two arguments regarding the expert testimony admitted in this 5 case, both of which she contends are violations of her right to confrontation. “Under 6 the Confrontation Clause, out-of-court testimonial hearsay is barred unless the witness 7 is unavailable and the defendant had a prior opportunity to cross-examine the 8 witness.” State v. Cabezuela, 2011-NMSC-041, ¶ 49, 150 N.M. 654, 265 P.3d 705 9 (alterations, internal quotation marks, and citation omitted). This Court reviews issues 10 of admissibility under the Confrontation Clause de novo. State v. Gurule, 2013- 11 NMSC-025, ¶ 33, 303 P.3d 838.

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12 We recognize that our Supreme Court has questioned the validity of the 13 uniform jury instruction on negligent child abuse, most recently in State v. Consaul, 14 2014-NMSC-___, ¶¶ 27-40, ___ P.3d ___ (No. 33,483, Aug. 21, 2014), which was 15 filed after the parties submitted their briefs. Our Supreme Court’s concern is that the 16 instruction could lead jurors to wrongfully convict defendants based on a civil 17 negligence as opposed to a criminal negligence standard. Id. ¶¶ 28, 39. In Consaul, 18 our Supreme Court particularly took to task the “knew or should have known” 19 language in the uniform jury instruction, noting how that language appears to reflect 20 a civil negligence standard and discussing how it might be at odds with the “reckless 21 disregard” standard that is the hallmark of criminal negligence. Id. ¶ 35. Because that 22 case pertains to a different part of the uniform jury instruction than that challenged by 23 Defendant, it does not bear on our holding here.

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1 {22} Defendant first contends that forensic toxicologist Dr. Hwang’s testimony about 2 B.K.’s toxicology results violated her confrontation rights because Dr. Hwang did not 3 physically perform or oversee the testing of B.K.’s blood. In State v. Huettl, this Court 4 addressed the admissibility of scientific expert testimony regarding chemical results 5 proffered by an expert who did not physically conduct the testing in light of the 6 Bullcoming v. New Mexico, ___ U.S. ___, 131 S. Ct. 2705 (2011), decision and its 7 progeny. See State v. Huettl, 2013-NMCA-038, ¶¶ 35-38, 305 P.3d 956, cert. quashed, 8 2014-NMCERT-005, 326 P.3d 1112. We explained that an expert’s scientific 9 testimony is permissible when it is “based upon facts or data of which the expert has 10 been made aware, even when those facts or data would otherwise be inadmissible, 11 provided that the expert testifies only to his or her own, independently derived 12 conclusions.” Id. ¶ 35. Put differently, “an expert who has analyzed the raw data 13 generated by another analyst and who has formed independent conclusions based 14 upon that analysis may testify as to those conclusions.” Id. ¶ 36. In contrast, expert 15 testimony is impermissible when it is “based solely upon a non-testifying analyst’s 16 analysis and conclusions.” Id. ¶ 37. In those instances “the expert will have failed to 17 form an independent opinion and is merely acting as a conduit for the presentation of 18 a non-testifying witness’s testimonial hearsay.” Id. ¶ 38.

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1 {23} In this case, Dr. Hwang testified that he independently reviewed data to come 2 up with the blood alcohol content, reviewed the graph rendered from the gas 3 chromatograph mass spectrometer to determine the presence of methamphetamine, 4 and did an independent review of the drug screening. Defendant cites no evidence 5 suggesting Dr. Hwang relied on prepared reports containing analyses of the results of 6 the chemical tests that were performed. Cf. State v. Sisneros, 2013-NMSC-049, ¶ 31, 7 314 P.3d 665 (holding that a confrontation violation occurred where a substitute 8 pathologist used a diagram prepared by the autopsy pathologist to demonstrate bullet 9 trajectory instead of relying on raw data to express her independent opinion); 10 Bullcoming, ___ U.S. at ___, 131 S. Ct. at 2708 (holding that the admission of 11 laboratory report of a non-testifying analyst containing the defendant’s blood alcohol 12 content violated the defendant’s confrontation right, and rejecting the “surrogate 13 testimony” of an analysis who did not participate in or observe the testing of the blood 14 and who had no independent opinion about the defendant’s blood alcohol content); 15 Melendez-Diaz v. Massachusetts, 557 U.S. 305, 308, 310-11 (2009) (holding that 16 admission of “certificates of analysis” from a state forensic laboratory, which stated 17 that a substance seized from the defendant was cocaine, violated the defendant’s 18 confrontation right). We conclude that, although Dr. Hwang did not perform the

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1 chemical testing himself, his testimony was based on a scientific technique that 2 produces raw data and was therefore admissible. 3 {24} Defendant also claims Dr. Hwang testified “about how the procedures are 4 normally done, tacitly suggesting to the jury that these procedures were followed in 5 this case,” and that she was not able to test this assertion because the persons who 6 performed the tests did not testify. We disagree. First, Defendant cites no testimony 7 in which Dr. Hwang claims the persons who physically conducted the chemical testing 8 certified the procedures they followed or their results, and no such certification was 9 entered into evidence. See Huettl, 2013-NMCA-038, ¶ 28 (noting that cases from the 10 United States Supreme Court “do not support the notion that a defendant has the right 11 to confront a laboratory analyst who, having participated in some aspect of evidence 12 analysis, nevertheless did not record any certifications, statements, or conclusions that 13 were offered as evidence”). In addition, Defendant did not challenge whether the 14 proper procedures were actually followed in B.K.’s case by cross-examining Dr. 15 Hwang regarding his lack of personal knowledge about how the lab work was done. 16 Consequently, there was no violation of Defendant’s confrontation rights with regard 17 to Dr. Hwang’s testimony. 18 {25} Defendant also contends that her confrontation rights were violated when Dr. 19 Ian Paul, the supervising forensic pathologist at the Office of the Medical Investigator

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1 (OMI) on the day of B.K.’s autopsy, testified about the autopsy results instead of Dr. 2 Alice Briones, the forensic pathology fellow who physically performed the autopsy. 3 In Cabezuela, our Supreme Court analyzed a similar issue, where the supervising 4 pathologist testified in lieu of the pathologist who physically performed the autopsy. 5 2011-NMSC-041, ¶¶ 48-52. The supervising pathologist in that case testified that she 6 independently participated in the microscopic exam, examination of the body and 7 injuries, and examination of all the photographs, and she signed the autopsy report. 8 Id. ¶ 50. Under those facts, our Supreme Court noted that the defendant had a full and 9 fair opportunity to cross-examine the supervising pathologist to determine whether she 10 had personal, first-hand knowledge of: (1) how the pathologist who performed the 11 autopsy did so, (2) what that pathologist found, and (3) what the supervisor concluded 12 based on the raw data. Id. ¶ 52. Because the defendant did not undertake such an 13 examination, our Supreme Court concluded that a record lacking this cross- 14 examination supported a reasonable inference that the supervising forensic pathologist 15 had personal knowledge of and participated in making the autopsy report findings. Id. 16 Thus, there was no confrontation issue. Id. 17 {26} Defendant challenges Dr. Paul’s personal involvement in the autopsy solely by 18 asserting that Detective Helton, who was present at B.K.’s autopsy, testified that he 19 only recalled seeing a female pathologist in the room during the autopsy. However,

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1 Dr. Paul testified that in his role as the supervising pathologist, he is generally present 2 in the room while an autopsy is being performed, reviews all of the autopsy findings, 3 reviews all slides looked at under the microscope, edits and finalizes the final autopsy 4 report, makes any changes he sees fit, and is ultimately responsible for the report, even 5 when he did not perform the physical autopsy or dissection of organs. Moreover, he 6 testified that, as the supervising pathologist on the day of B.K.’s autopsy, he followed 7 this procedure, and both he and Dr. Briones signed the autopsy report. As in 8 Cabezuela, nothing prevented Defendant from cross-examining Dr. Paul about his 9 actual level of independent participation in the process. Moreover, Defendant cites no 10 testimony that leads us to conclude Dr. Paul’s level of personal participation was 11 insufficient for confrontation purposes. Accordingly, the record before us supports a 12 reasonable inference that Dr. Paul had personal knowledge of and participated in 13 making the autopsy report findings, and his testimony did not violate Defendant’s 14 rights under the confrontation clause. 15 Clerical Error on Jury Verdict Form 16 {27} Defendant contends that the district court committed reversible error by 17 submitting and accepting a written verdict form for intentional child abuse instead of 18 for negligent child abuse for Count I. Neither party knows how the wrong verdict

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1 form got submitted to the jury, and it is undisputed that the error on the verdict form 2 was clerical. 3 {28} “It is well settled that if there is any doubt about a verdict [the appellate courts 4 are] entitled to interpret the verdict by reference to the whole record and particularly 5 by reference to the instructions given by the lower court.” State v. Reed, 6 1951-NMSC-021, ¶ 22, 55 N.M. 231, 230 P.2d 966. In this analysis, “[v]erdicts 7 should be liberally construed and all fair intendments should be made to sustain them. 8 A verdict should be rejected only when it is either ambiguous, incomplete or 9 unresponsive to the issue or issues submitted by the court.” State v. Tijerina, 10 1972-NMCA-169, ¶ 21, 84 N.M. 432, 504 P.2d 642. Our goal is to discern the jury’s 11 intention. See Reed, 1951-NMSC-021, ¶ 22. 12 {29} Here, the jury was instructed only on negligently permitting child abuse 13 resulting in death or great bodily harm for Count I. It was not given any instruction 14 on intentional child abuse. Further, the only mention of intentional child abuse was 15 on the erroneous form that was submitted to the jury. That form was the only verdict 16 form submitted for Count I. Under these circumstances—where there was only one 17 instruction and only one verdict form for Count I, and the jury was instructed only on 18 the crime for which Defendant was tried—we believe there is sufficient indicia that 19 the jury intended to convict Defendant of the charge in Count I. We further note that

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1 “[n]o irregularity in the recording of a verdict shall affect its validity unless the 2 defendant was in fact prejudiced by such irregularity.” Rule 5-611(F) NMRA. The 3 verdict form the jury signed was for a crime carrying both a higher mens rea 4 requirement and a greater punishment than the crime for which they were instructed. 5 Compare § 30-6-1(F) (negligent child abuse), with § 30-6-1(G), (H) (intentional child 6 abuse). We presume that juries follow the instructions they are given. State v. Smith, 7 2001-NMSC-004, ¶ 40, 130 N.M. 117, 19 P.3d 254.

8 The District Court’s Designation of the Crimes as “Serious Violent Offenses” 9 Under the EMDA

10 {30} Lastly, Defendant contends that the district court erred in determining that the 11 negligently permitting child abuse convictions were serious violent offenses for the 12 purposes of the EMDA. Defendant argues both that the district court’s findings were 13 legally inadequate under the EMDA to establish she committed serious violent 14 offenses, and that the findings the district court made during the mitigation stage of 15 her sentencing require a finding that the offenses were not serious violent offenses. 16 We review the district court’s designation of a crime as a serious violent offense for 17 an abuse of discretion. State v. Solano, 2009-NMCA-098, ¶ 7, 146 N.M. 831, 215 18 P.3d 769. However, because a court abuses its discretion when it acts contrary to law, 19 we review de novo the legal sufficiency of the district court’s findings in support of 20 its serious violent offense designation. Id. If we determine the district court’s findings

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1 are legally sufficient, we then turn to consider whether those findings are supported 2 by substantial evidence. State v. Scurry, 2007-NMCA-064, ¶ 4, 141 N.M. 591, 158 3 P.3d 1034. 4 {31} The EMDA provides that prisoners convicted of serious violent offenses may 5 earn only four days a month of credit against their time in prison for participating in 6 certain programs, while prisoners convicted of nonviolent offenses may earn up to 7 thirty days a month. Section 33-2-34(A)(1), (2). The statute contains a list of offenses 8 that are considered per se serious violent offenses. Section 33-2-34(L)(4)(a)-(n). It 9 also contains a list of offenses that we refer to as “discretionary offenses” that may be 10 designated as serious violent offenses at the discretion of the sentencing court. Section 11 33-2-34(L)(4)(o); Solano, 2009-NMCA-098, ¶ 23. Child abuse is a discretionary 12 offense under the EMDA. Section 33-2-34(L)(4)(o). 13 {32} Although a district court has the authority to deem the discretionary offenses 14 serious violent offenses, it may do so only when it finds that the “nature of the offense 15 and the resulting harm” warrants such a finding. Section 33-2-34(L)(4)(o). We 16 previously interpreted this statutory mandate in State v. Morales, 2002-NMCA-016, 17 ¶ 16, 131 N.M. 530, 39 P.3d 747, abrogated on other grounds by State v. Frawley, 18 2007-NMSC-057, ¶ 36, 143 N.M. 7, 172 P.3d 144. There, we drew three conclusions. 19 First, we determined that, because the EMDA’s list of discretionary offenses includes

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1 some offenses that always result in death, district courts must consider more than just 2 the resulting harm in determining whether an offense is a serious violent offense. Id. 3 ¶ 13. Second, turning to the nature of the offense, we compared the enumerated 4 serious violent offenses with the discretionary offenses and noted that many of the 5 discretionary offenses “are characterized by multiple ways of committing the offense, 6 some intentional and some not, and some utilizing physical force and some not.” Id. 7 ¶ 15. Based on these distinctions, we concluded that a discretionary crime is a serious 8 violent crime only when the district court finds that the crime was “committed in a 9 physically violent manner either with an intent to do serious harm or with recklessness 10 in the face of knowledge that one’s acts are reasonably likely to result in serious 11 harm.” Id. ¶ 16. We also concluded that, even where support exists in the record that 12 these factors are met, it is up to the district court “in the first instance to make the 13 required findings.” Id. ¶ 18. Accordingly, in Morales, we reversed the district court’s 14 serious violent offense designation and remanded for the district court to consider the 15 evidence and make additional findings. Id. ¶¶ 18-19. 16 {33} The State argues that we should overturn Morales and its progeny because those 17 cases are contrary to various rules of statutory construction. However, the State does 18 not explain how the law has developed or the facts have changed since we decided 19 that case, and even its own argument recognizes that our appellate courts have

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1 consistently followed Morales. See Trujillo v. City of Albuquerque, 1998-NMSC-031, 2 ¶ 34, 125 N.M. 721, 965 P.2d 305 (noting in relevant part that, before overturning 3 precedent, we must consider “whether the principles of law have developed to such 4 an extent as to leave the old rule no more than a remnant of abandoned doctrine” and 5 “whether the facts have changed in the interval from the old rule to reconsideration 6 so as to have robbed the old rule of justification” (internal quotation marks and 7 citation omitted)). We have no basis for overruling Morales and decline the State’s 8 request to do so. 9 {34} Since Morales, our appellate courts have continued to require that district courts 10 make specific findings regarding both the nature of the offense and the resulting harm 11 to support a serious violent offense designation. See State v. Loretto, 12 2006-NMCA-142, ¶ 14, 140 N.M. 705, 147 P.3d 1138. The reason behind the 13 requirement is twofold: “to inform the defendant being sentenced of the factual basis 14 on which his [or her] good time credit is being substantially reduced, and to permit 15 meaningful and effective appellate review of the court’s designation.” Id. ¶ 12. 16 Although these findings do not have to be expressed in the exact language of Morales, 17 they must be sufficient to demonstrate the factual basis upon which the district court 18 made its ruling. State v. Montoya, 2005-NMCA-078, ¶ 8, 137 N.M. 713, 114 P.3d 19 393.

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1 {35} In the present case, the judgment and sentence merely states that, “due to the 2 nature of this offense and the resulting harm, this crime is a serious violent offense.” 3 There are no factual findings to support the district court’s conclusion. At Defendant’s 4 sentencing, the district court stated that its designation of the crimes as serious violent 5 offenses was based on the “nature of the harm” to the two victims. The court then 6 orally proceeded to make factual findings regarding only the resulting harm suffered 7 by B.K. and T.C. However, the district court did not make any findings regarding the 8 nature of the offense. Under Morales, the district court’s findings were, therefore, 9 legally insufficient. 10 {36} Defendant also contends that the factual findings the district court made 11 pertaining to her behavior and mental state cannot support the conclusion that the 12 offenses are serious violent offenses. Again, Morales makes clear that the district 13 court must make findings specifically related to its serious violent offense designation 14 in the first instance. 2002-NMCA-016, ¶ 18. It did not do so. To the extent that the 15 district court considered mitigating factors for sentencing purposes, we note that 16 mitigation and a serious violent offense designation are distinct concepts. The 17 mitigation statute allows a district court to reduce a defendant’s underlying sentence 18 by considering “any mitigating circumstances surrounding the offense or concerning 19 the offender[.]” NMSA 1978, § 31-18-15.1(A)(1) (2009). In contrast, the section of

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1 the EMDA concerning discretionary offenses allows a district court to exercise 2 discretion regarding how much good time credit a convicted person can get while 3 serving his or her underlying sentence, based on the “nature of the offense and the 4 resulting harm.” Section 33-2-34(L)(4)(o); see State v. Andazola, 2003-NMCA-146, 5 ¶ 21, 134 N.M. 710, 82 P.3d 77 (noting that “the EMDA does not change the 6 maximum penalty for a defendant’s crime or impose an additional penalty[,]” but 7 rather “affects the amount of time by which [a] defendant through his own good 8 conduct could decrease his sentence” (internal quotation marks and citation omitted)). 9 {37} We reverse the district court’s serious violent offense designation and remand 10 so that the district court can consider the evidence and make the appropriate findings 11 regarding both the nature of Defendant’s offenses and the resulting harm to B.K. and 12 T.C., preferably in the written judgment and sentence. We note that in doing so, the 13 court is to follow the direction of Morales and its progeny. See Loretto, 2006-NMCA- 14 142, ¶¶ 18-19. Specifically, with regard to the nature of the offenses, the district court 15 should enter findings regarding whether the crimes were “committed in a physically 16 violent manner either with an intent to do serious harm or with recklessness in the face 17 of knowledge that one’s acts are reasonably likely to result in serious harm.” Morales, 18 2002-NMCA-016, ¶ 16. Because we are remanding based on the legal sufficiency of

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1 the district court’s findings, we do not reach whether the findings the district court 2 made are supported by substantial evidence. See Scurry, 2007-NMCA-064, ¶ 4. 3 Clerical Error on Judgment and Sentence 4 {38} As a final, undisputed matter, in its brief the State points out a clerical error on 5 Defendant’s judgment and sentence: although Defendant was convicted of negligently 6 permitting child abuse, the judgment and sentence states she was convicted of 7 negligently causing child abuse. We direct the district court on remand to correct this 8 error. 9 CONCLUSION 10 {39} We affirm Defendant’s conviction for Count I, negligently permitting child 11 abuse resulting in the death of B.K. We reverse the district court’s designation of both 12 counts of child abuse in this case as serious violent offenses and remand so the district 13 court can consider the evidence and enter the appropriate factual findings, as well as 14 correct the above mentioned clerical error in the judgment and sentence. 15 {40} IT IS SO ORDERED.

16 __________________________________ 17 LINDA M. VANZI, Judge

18 WE CONCUR:

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1 _________________________________ 2 JAMES J. WECHSLER, Judge

3 _________________________________ 4 J. MILES HANISEE, Judge