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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. 30,619 5 ANTHONY YAZZIE, 6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY 8 Robert Aragon, District Judge
9 Gary K. King, Attorney General 10 Olga Serafimova, Assistant Attorney General 11 Santa Fe, NM
12 for Appellee
13 Robert E. Tangora, L.L.C. 14 Robert E. Tangora 15 Santa Fe, NM
16 for Appellant 17 MEMORANDUM OPINION 18 FRY, Judge. 19 After consuming a large quantity of alcohol, Defendant drove his vehicle at 20 high speed into a utility pole, killing two passengers and seriously injuring the third.
1 Defendant was subsequently convicted of negligent child abuse resulting in death, 2 vehicular homicide, reckless driving resulting in great bodily injury, and driving while 3 intoxicated. The issues on appeal include a challenge based on the Confrontation 4 Clause, a challenge to the sufficiency of the evidence, and a question of fundamental 5 error relating to one of the jury instructions. For the reasons that follow, we conclude 6 that any evidentiary error was harmless, the convictions are supported by substantial 7 evidence, and the deficiency in relation to the jury instruction does not rise to the level 8 of fundamental error. We therefore affirm. 9 BACKGROUND 10 The accident occurred on September 2, 2007. Throughout the day, Defendant 11 and three friends, Travis Coulston (Travis), Dewayne Lee (Dewayne), and Jackson 12 Nez (Jackson), consumed a significant quantity of alcohol. After attending a social 13 function, they climbed into Defendant’s vehicle, and Defendant “peeled out” as they 14 departed. Shortly thereafter, they collided with a utility pole. The vehicle was 15 traveling at a speed of nearly eighty miles per hour, the engine was operating at almost 16 full throttle, and the brakes were never applied. Travis and Dewayne, who had been 17 seated on the passenger side of the vehicle, were both pronounced dead at the scene. 18 Defendant, who had been driving, and Jackson, who had been in the back seat behind 19 Defendant, both survived, although Jackson was seriously injured.
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1 At trial, the State called numerous witnesses who provided testimony about the 2 events on the day of the accident, the conditions at the scene, and the subsequent 3 investigation. When Defendant took the stand, he admitted that he was responsible 4 for the accident and the resultant injuries to Jackson and the deaths of Dewayne and 5 Travis. Ultimately, the jury found Defendant guilty on all counts. This appeal 6 followed. 7 DISCUSSION 8 Admission of Evidence Concerning Autopsies 9 At trial, the State called Dr. Zumwalt to testify about the autopsies performed 10 on Dewayne and Travis. Defendant objected on the ground that this testimony would 11 violate his right to confrontation because Dr. Zumwalt had not performed the 12 autopsies himself. The objection was overruled, and Dr. Zumwalt relayed the content 13 of the autopsy reports to the jury, including the findings, opinions, and conclusions 14 of the non-testifying pathologist. 15 On appeal, the State effectively concedes that Dr. Zumwalt’s testimony should 16 have been excluded. Although we are not bound by the State’s concession, State v. 17 Foster, 1999-NMSC-007, ¶ 25, 126 N.M. 646, 974 P.2d 140, abrogated on other 18 grounds by Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683, we note 19 that recent authority provides support for it. See State v. Jaramillo, 2012-NMCA-029,
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1 ¶ 15, 272 P.3d 682 (holding that an autopsy report prepared by an absent pathologist 2 was improperly admitted as evidence in violation of the defendant’s confrontation 3 rights); see also State v. Cabezuela, 2011-NMSC-041, ¶¶ 48-52, 150 N.M. 654, 265 4 P.3d 705 (discussing the admissibility of testimony from a pathologist who had been 5 present at the autopsy, but had not performed it and relied on records prepared by the 6 other doctor). However, we agree with the State that it is unnecessary to conclusively 7 determine whether a Confrontation Clause violation occurred in this case because any 8 error was harmless. See generally Allen v. LeMaster, 2012-NMSC-001, ¶ 28, 267 9 P.3d 806 (observing that courts should decide cases on the narrowest possible grounds 10 and avoid reaching unnecessary constitutional issues). 11 Our Supreme Court recently clarified that an apparent constitutional error is 12 harmless if “there is no reasonable possibility the error contributed to the jury’s 13 decision to convict [the d]efendant.” State v. Tollardo, 2012-NMSC-008, ¶ 45, 275 14 P.3d 110; see State v. Zamarripa, 2009-NMSC-001, ¶ 52, 145 N.M. 402, 199 P.3d 15 846 (“When a statement is admitted in violation of the Confrontation Clause, we next 16 inquire into whether the error was harmless [and, t]o preclude reversal, the error must 17 be harmless beyond a reasonable doubt.” (citations omitted)). In this context, we must 18 “evaluate all of the circumstances surrounding the error[,]” including “the source of 19 the error and the emphasis placed upon the error.” Tollardo, 2012-NMSC-008, ¶ 43.
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1 Evidence of guilt separate from the error may also be relevant, particularly because 2 such evidence may indicate what role the error may have played in the trial 3 proceedings. Id. Review may also properly incorporate examination of “the 4 importance of the [erroneously admitted evidence] in the prosecution’s case, as well 5 as whether the [error] was cumulative or instead introduced new facts.” Id. 6 (alterations in original) (internal quotation marks and citation omitted). 7 In this case, Dr. Zumwalt’s testimony about the autopsies of Travis and 8 Dewayne supplied a medical description of the specific injuries that they suffered “as 9 well as the performing pathologist’s conclusions that these injuries caused their 10 deaths.” However, both the injuries suffered and the cause of death were separately 11 addressed by other witnesses. Several law enforcement officers and emergency 12 medical responders testified to what they had observed. The specifics do not require 13 repetition here; suffice it to say that these witnesses described the appalling carnage 14 at the scene, including the readily apparent and patently fatal injuries suffered by the 15 decedents as a consequence of the accident. In this regard, the only supplemental 16 information that Dr. Zumwalt appears to have provided concerned additional internal 17 injuries. With respect to the cause of death, the senior medical investigator for 18 McKinley County testified to his own independent observations and informed the jury 19 that he had pronounced both Travis and Dewayne dead at the scene. Finally,
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1 Defendant admitted on the stand that he was responsible for Travis’s and Dewayne’s 2 deaths. 3 In summary, Dr. Zumwalt’s testimony about the autopsies was almost entirely 4 cumulative. Given the undisputed evidence separately supplied by other witnesses, 5 which clearly indicated that Travis and Dewayne had died as a result of the accident, 6 we fail to see any reasonable possibility that Dr. Zumwalt’s testimony contributed to 7 the jury’s verdicts. Defendant’s vague suggestion that this testimony “moved the 8 jurors’ focus away from . . . intent towards causation” is unpersuasive. We 9 therefore conclude that any error associated with the admission of Dr. Zumwalt’s 10 testimony was harmless beyond a reasonable doubt. 11 Sufficiency of the Evidence 12 Next, Defendant challenges the sufficiency of the evidence to support his 13 various convictions, specifically contending that his intoxication should be deemed 14 inconsistent with any determination that he acted with criminal intent. To the extent 15 that Defendant’s argument goes to the effect of voluntary intoxication upon the 16 offenses charged, we apply de novo review. Cf. State v. Dickert, 2012-NMCA-004, 17 ¶ 22, 268 P.3d 515 (observing that whether there was evidence to support intoxication 18 as a defense is reviewed de novo), cert. denied, 2011-NMCERT-___, ___ P.3d ___ 19 (Nos. 33, 295 and 33,297, Dec. 6, 7, 2011).
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1 In New Mexico, voluntary intoxication is only relevant to specific intent crimes 2 and offenses requiring subjective knowledge. State v. Brown, 1996-NMSC-073, 3 ¶¶ 22, 27, 122 N.M. 724, 931 P.2d 69. Voluntary intoxication has no bearing upon 4 general intent crimes or strict liability offenses. See id. ¶ 22 (observing that evidence 5 of voluntary intoxication is not admissible in relation to general intent crimes); see 6 also State v. Gurule, 2011-NMCA-042, ¶ 18, 149 N.M. 599, 252 P.3d 823 (explaining 7 that “intoxication is not a defense to a strict liability crime because it is irrelevant in 8 the strict liability context as to whether the defendant had intent to commit the 9 prescribed act”). 10 Defendant was convicted of negligent child abuse resulting in death, vehicular 11 homicide, reckless driving resulting in great bodily injury, and DWI. Among these, 12 vehicular homicide and reckless driving resulting in great bodily injury are general 13 intent crimes. See State v. Marquez, 2010-NMCA-064, ¶ 12, 148 N.M. 511, 238 P.3d 14 880. As charged in this case, DWI (past driving while impaired to the slightest 15 degree) is a strict liability offense. See State v. Sims, 2010-NMSC-027, ¶ 24, 148 16 N.M. 330, 236 P.3d 642. Accordingly, Defendant’s voluntary intoxication in no way 17 diminishes the sufficiency of the evidence to support his convictions for vehicular 18 homicide, reckless driving resulting in great bodily injury, and DWI.
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1 The offense of negligent child abuse is not a specific intent crime. See State v. 2 Herrera, 2001-NMCA-073, ¶ 12, 131 N.M. 22, 33 P.3d 22 (“[O]ne cannot have 3 specific intent to commit negligent child abuse.”). The requisite mens rea requires 4 proof that the defendant knew or should have known that his or her conduct created 5 a substantial and foreseeable risk to a child, which the defendant recklessly 6 disregarded. See UJI 14-602 NMRA; State v. Arrendondo, 2012-NMSC-013, ¶ 25, 7 278 P.3d 517. To the extent that this incorporates an objective standard, see State v. 8 Chavez, 2009-NMSC-035, ¶ 45, 146 N.M. 434, 211 P.3d 891, it does not fall within 9 the small class of subjective-knowledge offenses for which voluntary intoxication may 10 supply a defense. 11 In summary, because none of the offenses at issue require specific intent or 12 subjective knowledge, Defendant’s voluntary intoxication in no way diminishes the 13 sufficiency of the evidence to support his convictions. We therefore reject 14 Defendant’s second assertion of error. 15 Jury Instruction on Negligent Child Abuse Resulting in Death 16 Finally, Defendant presents an issue relative to the adequacy of the jury 17 instruction on negligent child abuse resulting in death. The parties agree that the 18 instruction actually given is deficient because it fails to incorporate the requirement 19 that Defendant knew or should have known that his conduct created a substantial and
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1 foreseeable risk to Travis specifically. This requirement stems from recent authority, 2 in which this Court clarified that “a discernable risk of danger to a particular child or 3 particular children is required to support a conviction for negligent child abuse by 4 endangerment” and further held that “for a defendant to be criminally liable for child 5 abuse by endangerment, he or she must be aware of a particular danger to the 6 identifiable child or children when engaging in the conduct that creates the risk of 7 harm.” State v. Gonzales, 2011-NMCA-081, ¶ 1, 150 N.M. 494, 263 P.3d 271, cert. 8 granted, 2011-NMCERT-008, 268 P.3d 514. 9 Because this issue was not preserved at the trial level, we review for 10 fundamental error. State v. Sandoval, 2011-NMSC-022, ¶ 15, 150 N.M. 224, 258 P.3d 11 1016. Generally, the omission of an essential element from a jury instruction 12 constitutes fundamental error. State v. Sutphin, 2007-NMSC-045, ¶ 16, 142 N.M. 13 191, 164 P.3d 72. “There is, however, an exception to this general rule that failure to 14 include an essential element in an instruction for a crime constitutes fundamental 15 error. This exception applies when the element that was omitted from the instruction 16 was not at issue in the trial.” State v. Lopez, 1996-NMSC-036, ¶ 11, 122 N.M. 63, 17 920 P.2d 1017; see Sutphin, 2007-NMSC-045, ¶ 16 (“[F]undamental error does not 18 occur if the jury was not instructed on an element not at issue in the case. Likewise, 19 when there can be no dispute that the omitted element was established, fundamental
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1 error has not occurred and reversal of the conviction is not required.” (citation 2 omitted)). 3 We conclude that this case falls within the exception because the undisputed 4 evidence clearly established that Defendant knew or should have known that his 5 conduct created a substantial and foreseeable risk to a child (specifically, Travis). As 6 described in preceding sections of this opinion, a number of witnesses testified to the 7 events surrounding the fatal accident, including the very high speed at which 8 Defendant was driving and Defendant’s prior consumption of a significant quantity 9 of alcohol. Evidence was also presented indicating that Defendant knew or should 10 have known of Travis’s presence because Travis was riding in the rear passenger seat 11 of Defendant’s vehicle. Cf. Gonzales, 2011-NMCA-081, ¶¶ 4, 32 (reversing a 12 conviction for negligent child abuse resulting in death because no evidence was 13 presented to indicate that the defendant knew or should have known of the presence 14 of minors in another vehicle). Finally, evidence was presented indicating that Travis 15 was a minor, and Defendant’s awareness of Travis’s age was never an issue. 16 In his reply brief, Defendant disputes none of the foregoing. Instead, Defendant 17 contends that the omission from the jury instruction should be regarded as 18 fundamental error in light of Defendant’s testimony that he was so intoxicated he did 19 not remember Travis getting into the car. However, as described in the preceding
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1 section of this opinion, the applicable standard is an objective one. See UJI 14-602; 2 Arrendondo, 2012-NMSC-013, ¶ 25. The offense of negligent child abuse resulting 3 in death does not require evidence of Defendant’s subjective knowledge. 4 Accordingly, in light of the clear and uncontroverted evidence that Travis was seated 5 with Defendant in the vehicle at the time of the accident, Defendant’s claim of 6 ignorance by virtue of voluntary intoxication is immaterial. We therefore conclude 7 that the jury instruction does not rise to the level of fundamental error. 8 CONCLUSION 9 For the foregoing reasons, we affirm. 10 IT IS SO ORDERED.
11 12 CYNTHIA A. FRY, Judge
13 WE CONCUR:
14 15 RODERICK T. KENNEDY, Judge
16 17 MICHAEL E. VIGIL, Judge