State v. Stewart

2005 NMCA 126, 122 P.3d 1269, 138 N.M. 500
CourtNew Mexico Court of Appeals
DecidedAugust 24, 2005
Docket24,624
StatusPublished
Cited by14 cases

This text of 2005 NMCA 126 (State v. Stewart) 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
State v. Stewart, 2005 NMCA 126, 122 P.3d 1269, 138 N.M. 500 (N.M. Ct. App. 2005).

Opinion

OPINION

KENNEDY, Judge.

{1} Defendant appeals his convictions for two separate counts of battery against a household member, two counts of aggravated battery, one count of child abuse, and negligent cruelty to animals. His convictions stem from when Defendant, over a five-hour period, alternately slapped, punched, and kicked his girlfriend Lynda Wilkins (Mother), her thirteen-month-old son (Child), and the family’s puppy. Defendant argues that his two separate convictions for battery against Mother violated double jeopardy because Defendant’s assaults were not sufficiently distinct. Defendant also argues that his convictions of both aggravated battery and child abuse violated double jeopardy because child abuse is a specific type of aggravated battery. Finally, Defendant argues that there was insufficient evidence to convict him of negligent cruelty to animals because the evidence only showed that he acted intentionally when he kicked the puppy.

{2} We hold that Defendant’s two counts of battery against a household member were sufficiently distinct because a reasonable jury could conclude, based on the evidence presented at trial, that the assaults occurred at different times and were punctuated by an assault on another victim. We hold that double jeopardy challenges and arguments seeking to invoke the general/specific rule must be analyzed separately. In analyzing the two challenges separately, we hold that insofar as Defendant challenges his convictions of aggravated battery and child abuse under double jeopardy, his numerous acts over the course of the morning were sufficiently distinct to justify at least three counts, if not more. We also hold that the general/specific rule is inapplicable to the statutes at hand and that child abuse under NMSA 1978, § 30-6-l(D) (2004) is not a specific type of misdemeanor aggravated battery under NMSA 1978, § 30-3-5(B) (1969). Finally, we hold that there was sufficient evidence for the jury to find that Defendant committed negligent animal cruelty to animals because he acted with a higher mens rea than required. We affirm Defendant’s convictions.

FACTUAL AND PROCEDURAL HISTORY

{3} At approximately 3:15 a.m. on January 1, 2003, Mother was awakened by the sound of Child screaming. Ten minutes later, upon hearing Child screaming again, she went into her back living room. There, she found Defendant punching Child in the chest. Defendant was telling Child to “shut the fuck up.” Mother picked up Child and walked away. Defendant followed and grabbed Child away from her. Defendant started punching Child again as he took Child back to the back living room, cursing at Child. Defendant threw Child on the couch. Mother tried to intervene, asking Defendant to leave. Defendant threw a plate of food at her but missed. At this point, or possibly later, when Mother tried to get Defendant away from Child, Defendant punched her in the chest, once in the stomach, once in the back, and kicked her as she tried to get away. It is unclear whether the punching and kicking occurred at one time or over the course of the morning.

{4} Defendant next started pacing around the house, an activity that went on for some time. Around this time, Defendant also kicked Mother’s puppy in the head because the puppy was looking at him. He kicked the puppy a second time while he was walking to the kitchen and said that he would kill the puppy if she looked at him again.

{5} Although Defendant had earlier told Mother not to do so, Mother picked up Child again to calm down the infant. Defendant snatched Child from her, threw Child back on the couch and slapped Child. He again instructed Mother not to touch Child. He then threw Child onto a chair and told Child not to move; when Child kept crying, Defendant began punching Child in the chest. The evidence does not indicate how long this episode of punching lasted.

{6} At approximately 5 a.m. Mother went into the master bedroom to retrieve Child’s diaper bag. Mother told Defendant that she was leaving. Defendant cursed at her, blaming her for “trying to save that little bitch,” (referring to Child). Defendant told Mother to sit down, got in her face, and threatened to blow up her house. When Mother returned to the back living room where Child still sat in the chair, Defendant taunted her inability to go comfort Child.

{7} Some time later, Defendant walked past Child and kicked Child in the face. Child fell to the floor. When Mother tried to go to Child, Defendant punched her in the jaw. Defendant then picked up Child and threw Child back into the chair. Mother was again told not to touch Child. Defendant put his own children back to bed.

{8} Child remained in the chair until approximately 6 a.m., when Defendant allowed Mother to put Child to bed. Later, Defendant found Child sitting, not lying, in the bed. Defendant grabbed Child by the arm and started punching Child in the chest again. Mother was present but too scared to intervene. She testified that “there was a couple of times where he would punch [Child] and [Child] would like aaaagh, like he couldn’t breath[e] he was punching him so hard and he wouldn’t stop.”

{9} Defendant then grabbed Child and threw Child back into the chair located in the back living room. Defendant kept making trips to the kitchen, finally returning with a steak knife. Defendant started sticking the knife in the couch and remote control. Mother at some point tried to leave, but Defendant would not let her.

{10} At approximately 7 to 7:30 a.m., Mother put Child to bed for the second time. Mother returned to the couch with Defendant. Around 8:15 a.m., she managed to sneak away from the house with Child and her daughter.

{11} On November 13, 2003, a jury convicted Defendant of seven counts: Counts One and Four, battery against a household member (of Mother); Count Two, child abuse (of Child); Count Three, false imprisonment (of Mother); Counts Five and Six, aggravated battery (of Child); and Count Seven, cruelty to animals. Defendant appealed.

DISCUSSION

Standard of Review

{12} We review Defendant’s double jeopardy and statutory construction arguments de novo. See State v. McClendon, 2001-NMSC-023, ¶ 2, 130 N.M. 551, 28 P.3d 1092; State v. Schoonmaker, 2005-NMCA-012, ¶ 19, 136 N.M. 749, 105 P.3d 302. Insofar as Defendant challenges the sufficiency of the evidence, “we consider the evidence in the light most favorable to the State, resolving all conflicts and indulging all permissible inferences in favor of the verdict.” State v. McGee, 2004-NMCA-014, ¶ 6, 135 N.M. 73, 84 P.3d 690. We do not re-weigh the evidence or substitute our judgment for the jury’s. Id.

Double Jeopardy: Multiple Convictions of the Same Charge

{13} Defendant challenges his conviction of two counts of battery against a household member as violating double jeopardy. See NMSA 1978, § 30-3-15 (2001) (defining battery against a household member); N.M. Const. art. II, § 15 (stating New Mexico’s double jeopardy protections). This is a unit of prosecution challenge. See State v. Boergadine, 2005-NMCA-028, ¶ 14, 137 N.M.

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Cite This Page — Counsel Stack

Bluebook (online)
2005 NMCA 126, 122 P.3d 1269, 138 N.M. 500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-stewart-nmctapp-2005.