United States v. Romero ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 29, 2018
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-2172
(D.C. No. 1:12-CR-00159-MCA-3)
KIMBERLY ROMERO, (D. N.M.)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before MATHESON, McKAY, and McHUGH, Circuit Judges.
Defendant Kimberly Romero appeals the revocation of her supervised release for
violation of its conditions. Reviewing the district court’s decision under an abuse-of-
discretion standard and its legal conclusions de novo, we affirm the ruling.
In January 2013, Defendant was convicted of possession and conspiracy to possess
with intent to distribute methamphetamines. See 21 U.S.C. §§ 841(b)(1)(A), 846. She
was sentenced to forty-six months in jail, followed by sixty months of supervised release
beginning October 30, 2015. As a condition of her supervised release, Defendant was
*
This order and judgment is not binding precedent, except under the doctrines of
law of this case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
prohibited from “commit[ting] another federal, state, or local crime.” (Second Supp. R.
at 17.)
In April 2017, Defendant’s probation officer filed a petition for revocation of
Defendant’s supervised release based on allegations that Defendant had committed the
crime of child abuse.1 The alleged crime came to light on March 31, 2017, when a
Catholic Charities day care requested an investigator from the New Mexico Children,
Youth & Families Department to come and speak with Defendant’s three-year-old son,
who “had been allegedly beaten with a belt.” (R. at 135.) The day care also contacted
the Bernalillo County Sheriff’s Department, which dispatched an officer to the scene.
Child care staff members discovered the boy’s injuries—“extensive patterned bruising
involving the buttocks, thighs and left forearm as well as additional bruises to the
back”—when helping him go to the bathroom that afternoon. (First Supp. R. at 17.)
Upon arrival, the CYFD investigator examined the child’s bruises, including some that
appeared to have been inflicted by the belt buckle. During a one-on-one interview, the
child told the investigator that “Daddy2 did this,” “Daddy hurt me,” and “Daddy gave me
owees,” but made no statements about physical abuse from his mother. (R. at 137.)
Defendant was charged in New Mexico State Court with (1) abandonment or
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abuse of a child resulting in great bodily harm contrary to N.M. Stat. Ann. § 30-6-1-(D),
and (2) conspiracy contrary to N.M. Stat. Ann.§ 30-28-2, based upon conduct described
in an arrest warrant affidavit accompanying the criminal complaint. Though this criminal
complaint was not attached to the petition for revocation and was later dismissed without
prejudice, the district court determined that the petition’s inclusion of a “violation report”
provided Defendant with sufficient notice as to the “specific acts or omissions underlying
the alleged unlawful conduct.” (R. at 68.) Defendant does not appeal this determination.
2
The child, who has no contact with his biological father, refers to his mother’s
boyfriend, Cain Suarez, as “Dad” or “Daddy.” (See R. at 171.)
2
When Defendant arrived to pick up her son, she initially told the officer that she
was responsible for her son’s injuries. She later explained that she had asked her
boyfriend, Cain Suarez, to help discipline her son because he had been misbehaving at
school and Mr. Suarez had previously told Defendant that she “babied” her son too much.
(R. at 149.) According to the CYFD investigator, Defendant said that Mr. Suarez had
taken the child upstairs while she remained downstairs in the kitchen. She stated that she
heard Mr. Suarez ask the child what had happened at school that day, but could not hear
her son’s response. She then heard what she believed to be the sound of a belt being
removed from pants, followed by the sound of five spanks. Defendant then went
upstairs, where she saw her son with his pants down and Mr. Suarez with a belt in hand.
Due to her “shock” at what she was seeing, she observed two additional spanks before
she intervened. (R. at 140.) Defendant told the officer that Mr. Suarez “bec[a]me very
confrontational” and complained that she had “ask[ed] him to help discipline and then
contradict[e]d his form of discipline.” (R. at 206.) Defendant packed her things and left
Mr. Suarez’s home with her son, arriving at her mother’s house late that evening.
Following these conversations at the day care center, Defendant and the
investigator briefly stopped at Defendant’s mother’s home before taking the child to the
emergency room at the University of New Mexico Hospital Pediatrics Department for an
examination. There was initially concern about a possible healing fracture in the boy’s
left arm, but this was ruled out following further examination. Based on her interviews
and the exam, the CYFD investigator created a safety plan describing the events,
Defendant’s lack of proper response, and other safety concerns, including “reported
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issues with domestic violence in the home between [Mr. Suarez] and [Defendant].” (First
Supp. R. at 55.)
The CYFD investigation also revealed a handful of alleged prior events
concerning Defendant’s son which had led to “unsubstantiated” claims of abuse. On
September 24, 2016, the child had allegedly stated that “Daddy did it,” when day care
staff asked about some bruising on his cheek and a possible bite mark. (R. at 171.) Then,
on November 27, 2016, the child again told day care staff members that “Daddy” had
given him the scratches on his cheek. (R. at 172.) The boy gave the same answer—“Dad
did it”—when asked about “what appeared to be bruis[ing] and infect[ion]” on three of
his fingers in January 2017. (R. at 172-73.) When CYFD looked into these reports in
January 2017, the department made contact with Defendant and her son, who was “very
non-verbal” due to his young age. (R. at 173-74.) Because of this, “the investigator based
the judgment [that the claims could not be substantiated] mainly on statements from
[Defendant], at which point the perpetrator was not identified. It was said to be an
unknown father or unknown boyfriend.” (Id.) During her testimony, the CYFD
investigator explained that “unsubstantiation” just means that CYFD “can’t prove one
way or the other what happened,” which is common for cases with very young children
who are “very limited in what they can say or what they know how to say.” (R. at 174.)
“If the child can’t tell [the CYFD investigator] what happened, themselves, [CYFD] can
only base [its conclusions] off of statements made by the parents,” as it did in
Defendant’s son’s case in January 2017. (Id.)
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On June 16, 2017, Defendant filed a motion to dismiss the revocation proceedings
and to reinstate her term of supervised release. On July 11, 2017, the court held an
evidentiary hearing on the petition and on the motion to dismiss. After hearing testimony
from the CYFD investigator, responding officer, and probation officer, the court was
unable to reach a decision and held another evidentiary hearing on August 10, 2017. At
this second hearing, the judge explained that she was inclined to grant the motion to
dismiss, but wanted to hear what the parties had to say. During the course of the hearing,
the government focused heavily on the argument that Defendant had committed criminal
negligence because the three unsubstantiated CYFD reports at the very least put
Defendant on notice that she should not leave her son alone with Mr. Suarez. The
government also placed heavy emphasis on the fact that Defendant had not taken the
child to a hospital, had not told her mother, had not called her probation officer, and had
not called CYFD about the incident. By the end of the hearing, the judge explained that
she would need more time to reach a decision in light of the things she had heard at the
hearing.
At a third hearing on August 25, 2017, the court entered an opinion finding that
Defendant had violated New Mexico’s child abuse statute, N.M. Stat. Ann. § 30-6-1(D).
In so finding, the judge placed a great deal of weight on the fact that Defendant had
entrusted her child to her boyfriend when that same child had stated this man had hurt
him on at least three prior occasions. Although CYFD had not been able to substantiate
those reports, the judge said that this did not matter in light of the child’s “tender age.”
(R. at 296.) The judge further determined that Defendant not only failed to take action to
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stop the punishment before it happened, but did not protect her son once she heard the
belt strikes—all of which contributed to the negligent child abuse. The district court
found Defendant had violated the condition of her supervised release and sentenced her
to ten months in prison and another term of supervised release of forty-eight months.
Defendant now appeals.
We review revocation of a defendant’s supervised release for abuse of discretion.
United States v. LeCompte, 800 F.3d 1209, 1215 (10th Cir. 2015). We review the district
court’s legal conclusions de novo. Id. To revoke a term of supervised release, a district
court must find by a preponderance of the evidence that a defendant violated a condition
of that release. See 18 U.S.C. § 3583(e)(3); United States v. Disney, 253 F.3d 1211, 1212-
13 (10th Cir. 2001). A preponderance of the evidence means that the evidence,
considered in light of all the facts, proves that something is more likely so than not.
Harvey v. General Motors Corp., 873 F.2d 1343, 1349 n.2 (10th Cir. 1989).
Here, the government has alleged that Defendant violated New Mexico statute §
30-6-1(D), which provides as follows:
D. Abuse of a child consists of a person knowingly, intentionally or negligently,
and without justifiable cause, causing or permitting a child to be:
(1) placed in a situation that may endanger the child’s life or health; [or]
(2) tortured . . . or cruelly punished[.]
New Mexico statute § 30-6-1(A)(3) further provides:
(3) “negligently” refers to criminal negligence and means that a person
knew or should have known of the danger involved and acted with a
reckless disregard for the safety or health of the child.
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Thus, the key issue in determining whether Defendant violated a condition of her
supervised release comes down to this: whether a preponderance of the evidence proved
it was more likely than not that she knew or should have known that allowing Mr. Suarez
to discipline her son would place the child in a situation that could endanger his health
and safety or permit him to be cruelly punished. After three evidentiary hearings and
extensive deliberation, the district court concluded that it did.
Based on a review of New Mexico child abuse case law and the available facts, the
district court “infer[red] that Defendant knew that [Mr.] Suarez had physically abused
Child on more than one occasion prior to this incident.” (R. at 72 [citing State v. Leal,
723 P.2d 977, 981 (N.M. Ct. App. 1986) (indicating that where the defendant has
knowledge of past abuse, it may be permissible to infer that she understood the risk of
further abuse associated with leaving the child alone with the abuser), abrogated on other
grounds by Santillanes v. State, 849 P.2d 358 (N.M. S. Ct. 1993)].) The court further
made the inference that “when Defendant asked [Mr.] Suarez to help discipline the child,
. . . Defendant understood that [Mr.] Suarez’s method of ‘discipline’ would likely involve
physical punishment.” (R. at 72 [citing State v. Kuykendall, 2014 WL 5782937, at *1-4
(N.M. Ct. App. 2014) (holding that the defendant’s act of leaving a child alone with her
boyfriend notwithstanding his history of abusing the child supported a conviction for
permitting child abuse)]. The court ultimately concluded:
Defendant was put on notice of Suarez’ potential for abusive behavior.
Nevertheless, she permitted Suarez to take Child upstairs to be
“disciplined” while she remained downstairs, and she continued to remain
downstairs even though she heard Suarez remove his belt and strike Child
with it five or six times. In other words, Defendant not only failed to take
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any action to abate the prospective punishment before it occurred—for
example by asking Suarez to “discipline” Child in her presence, by
appropriate means, or by instructing him to refrain from physical discipline,
but she also failed to take action once the abuse started—choosing instead
to passively permit Child to be stricken with a belt seven or eight times.
(R. at 72-73.)
After our own careful review of the record, the law, and the district court’s
reasoning, we affirm this ruling. Given that Defendant had conversed with a CYFD
investigator about her son’s prior injuries and the boy’s statements that “Daddy did it,”
we concur with the district court’s inference that the Defendant was on notice of Mr.
Suarez’s potential for abusive behavior. Mr. Suarez had already criticized Defendant for
“babying” the child, suggesting his belief that there should be some type of escalation in
punishment for misbehavior, which foreseeably could lead to physical abuse. These
circumstances, coupled with the fact that Mr. Suarez had some history of violence toward
Defendant herself, should have given Defendant pause in asking for Mr. Suarez’s help
with discipline and in allowing him to go upstairs with her son while she remained in the
kitchen because she knew or should have known her son might be at risk of harm from
Mr. Suarez. See State v. Nichols, 363 P.3d 1187, 1193 (N.M. S. Ct. 2016) (determining
that the New Mexico legislature drafted § 30-6-1(D) so that “both active and passive
abusers [who permit child abuse] would be held equally responsible.”). We concur with
the district court’s legal and factual determinations that there is sufficient evidence to
conclude that Defendant’s actions more likely than not constituted a violation of N.M.
Stat. Ann. § 30-6-1(D) and, therefore, that Defendant violated a condition of her
supervised release.
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We accordingly AFFIRM.
ENTERED FOR THE COURT
Monroe G. McKay
Circuit Judge
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