State v. Taylor ( 2021 )

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ________________
Filing Date: April 19, 2021
No. A-1-CA-38089
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
SANDI TAYLOR and MARY TAYLOR,
Defendants-Appellants.
APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
Donna J. Mowrer, District Judge
Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM
for Appellee
Harmon, Barnett & Morris, P.C.
Tye C. Harmon
Clovis, NM
Wray Law P.C.
1
Katherine Wray
Albuquerque, NM
for Appellants
OPINION
B. ZAMORA, Judge.
{1} Defendants Mary Taylor and Sandi Taylor appeal their convictions for one
count of reckless child abuse resulting in great bodily harm, contrary to NMSA 1978,
Section 30-6-1(E) (2009), and one count of reckless child abuse resulting in death,
contrary to Section 30-6-1(F). On appeal, Defendants contend (1) there was
insufficient evidence to support their convictions; (2) the district court erred in
denying Defendants’ requested jury instructions; (3) the district court abused its
discretion in its evidentiary rulings at trial; (4) the alleged evidentiary issues at trial
resulted in cumulative error; and (5) their convictions violated their right to be free
from double jeopardy. We affirm.
BACKGROUND
{2} Defendants owned Taylor Tots, a daycare they operated from their home in
Portales, New Mexico. On July 25, 2017, Defendants had twelve children under their
supervision, the two youngest being one-year-olds M.J. and A.L. (collectively,
Victims). Defendants drove the group of children in two separate sport utility
vehicles (SUVs) to a local park. During the return trip from the park, prior to 1:00
p.m., one of the children defecated, prompting Defendant Sandi to rush into the home
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to change the child’s diaper. Ten of the twelve children exited the SUVs. However,
Defendants failed to remove Victims from the SUV, and both remained buckled in
their car seats. For over two hours and forty minutes, Defendants left Victims in their
car seats while the temperature outside reached 91° F.
{3} Defendant Sandi returned to the SUV shortly after 3:00 p.m. and discovered
Victims still strapped into their car seats. Defendant Sandi observed that Victims
were both blue in the face, and M.J. was unresponsive. Defendant Sandi called 911.
Portales Police Department Officer Amador Lujan and paramedics arrived at the
scene. M.J. died of a heat stroke, and A.L. suffered life-threatening injuries.
{4} Defendants were arrested, and a grand jury indicted each Defendant on one
count of reckless child abuse resulting in great bodily harm for A.L., and one count
of reckless child abuse resulting in death for M.J. At trial, the State’s theory was that
Defendants’ conduct on July 25, 2017, demonstrated a reckless disregard for the
safety and health of Victims, which resulted in death and severe injuries. To
demonstrate the harm allegedly caused by Defendants’ conduct, the State presented
medical testimony that M.J.’s death and A.L.’s injuries resulted from being left
inside the hot SUV. Furthermore, the State presented testimony from the Children,
Youth & Families Department (CYFD) and compliance reports showing Defendants
were in violation of numerous CYFD safety policies on the day in question. In
contrast, Defendants argued that M.J.’s death and A.L.’s injuries resulted from an
3
“accident” rather than from a “reckless disregard” for Victims’ safety. The jury
convicted Defendants on all counts. Defendants appeal.
DISCUSSION
I. Reckless Child Abuse
{5} This case requires us to determine whether a defendant who acts recklessly
can still be convicted of child abuse even where the defendant is unaware that he or
she committed an act or omission (i.e., forgetting and leaving a child unattended in
a vehicle). Defendants argue that there is insufficient evidence to support their
convictions for reckless child abuse because (1) they did not know they left Victims
unattended in the SUV and therefore, they did not knowingly act or fail to act, and
(2) the State failed to show Defendants acted with a reckless disregard for the safety
of Victims. The State disagrees and contends that reckless child abuse does not
require that a defendant be aware that he or she is acting or failing to act. Rather, the
State argues that Defendants’ convictions are supported by sufficient evidence
because “Defendants knew [Victims] were originally in the [SUV,]” Defendants
“created [the] risk by failing to take [Victims] out of the [SUV,]” and Defendants
“then disregarded that risk by leaving them there.” We agree with the State.
{6} We begin by addressing whether criminal liability under the reckless child
abuse statute requires that a defendant have knowledge of his act or failure to act
(the actus reus) in addition to a culpable mental state. “A crime generally consists of
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two elements, a physical, wrongful deed (the ‘actus reus’), and a guilty mind that
produces the act (the ‘mens rea’).” State v. Gonzalez, 2005-NMCA-031, ¶ 10, 137
N.M. 107, 107 P.3d 547 (internal quotation marks and citation omitted); see State v.
Padilla, 2008-NMSC-006, ¶ 12, 143 N.M. 310, 176 P.3d 299 (“Typically, criminal
liability is premised upon a defendant's culpable conduct, the actus reus, coupled
with a defendant’s culpable mental state, the mens rea.”); see also State v. Granillo,
2016-NMCA-094, ¶ 9, 384 P.3d 1121 (“Observing that [a] conviction of child abuse
cannot be sustained in the absence of sufficient evidence of both the actus reus and
the mens rea.” (alterations, internal quotation marks, and citation omitted)).
{7} According to Defendants, to be culpable, a defendant must be aware that he
or she is committing the criminal act or omission. Thus, they contend, it is the
“ability to choose whether to commit the act that gives rise to criminal liability.”
State v. Cole, 2007-NMCA-099, ¶ 10, 142 N.M. 325, 164 P.3d 1024 (internal
quotation marks and citation omitted). 1 Defendants rely on a series of cases
1
Defendants argue that because the culpable reckless mental state will always
be satisfied when a child is left unattended in a vehicle, reckless child abuse becomes
a strict liability crime unless the jury must also conclude that the culpable act was
intentional (done with knowledge that the act or omission occurred). We are
unpersuaded. Defendants do not argue that leaving Victims unattended in the SUV
for over two hours and forty minutes was not a substantial and unjustifiable risk, so
we did not directly address the requirements for establishing harm in other sections
of this opinion. However, our case law instructs that it is the gravity of the risk,
which places “an individual on notice that his [or her] conduct is perilous and
potentially criminal[,]” and that it “is the likelihood of harm which informs the court
of the foreseeability of the risk when evaluating its magnitude.” State v. Schaaf,
5
involving intentional acts to support their argument. See State v. Arrendondo, 2012-
NMSC-013, ¶ 27, 278 P.3d 517 (affirming a conviction for reckless child abuse
when a defendant’s act, shooting a firearm into a house with a baby inside, “would
allow a reasonable jury to have found that [the defendant] knew or should have
known that his conduct created a substantial risk”); State v. Gonzales, 2011-NMCA-
081, ¶ 32, 150 N.M. 494, 263 P.3d 271 (reversing a conviction for reckless child
abuse when a defendant’s act, driving drunk, failed to “endanger[] a particular child
that was foreseeable at the time of the accident”).
{8} We agree that no New Mexico case has evaluated whether a conviction for
reckless child abuse can result from an act or omission that occurred without a
defendant’s knowledge (i.e., the act of forgetting a child in a car). However, because
“the plain language of a statute is the primary indicator of legislative intent[,]” we
disagree that a defendant must knowingly commit an act or omission to be convicted
of reckless child abuse. High Ridge Hinkle Joint Venture v. City of Albuquerque,
1998-NMSC-050, ¶ 5, 126 N.M. 413, 970 P.2d 599 (internal quotation marks and
citation omitted); see State v. Swick, 2012-NMSC-018, ¶ 11, 279 P.3d 747 (holding
2013-NMCA-082, ¶ 9, 308 P.3d 160 (internal quotation marks and citations
omitted). In assessing the degree of risk, we consider the length of time the
conditions existed and the amount of supervision of the child. Id. Under such an
analysis, if a child were not exposed to a sufficiently dangerous condition for a
sufficient length of time, the risk would not be great enough to sustain a conviction.
In other words, Defendants’ arguments about strict liability miss the mark by
ignoring this key requirement.
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that the meaning of a criminal statute is defined primarily by the language of the
statute itself). As provided by statute, reckless child abuse “consists of a
person . . . [recklessly] and without justifiable cause, causing or permitting a child
to be . . . placed in a situation that may endanger the child’s life or health . . . or . . .
exposed [the child] to the inclemency of the weather.” Section 30-6-1(D)(1), (3).
Nowhere in Section 30-6-1(D) does the word “intentional” or “knowingly” appear
in describing the acts or omissions necessary to sustain a conviction for reckless
child abuse, and we decline to read language into a statute that is not present. See
State v. Almeida, 2011-NMCA-050, ¶ 10, 149 N.M. 651, 253 P.3d 941 (“We will
not read into a statute language which is not there, especially when it makes sense
as it is written.” (internal quotation marks and citation omitted)).
{9} Instead, the critical inquiry is whether Defendants’ acts and omissions,
irrespective of whether they were knowingly committed, caused or permitted “a
child to be . . . placed in a situation that may endanger the child’s life or health . . .
or . . . exposed [the child] to the inclemency of the weather.” Section 30-6-1(D)(1),
(3). A defendant acts recklessly within the meaning of Section 30-6-1(D) when he
or she disregards a “substantial and unjustifiable risk of serious harm to the safety
or health of [a child].” UJI 14-622 NMRA (listing elements for reckless child abuse
resulting in death); UJI 14-615 NMRA (listing elements for reckless child abuse
resulting in great bodily harm). A substantial and unjustifiable risk is one that “any
7
law-abiding person would recognize under similar circumstances and that would
cause any law-abiding person to behave differently . . . out of concern for the safety
or health” of a child. UJI 14-622; see State v. Consaul, 2014-NMSC-030, ¶ 37, 332
P.3d 850 (stating that recklessness requires a defendant to “consciously disregard a
substantial and unjustifiable risk of such a nature and degree that its disregard
involves a gross deviation from the standard of conduct that a law-abiding person
would observe”). “No specific intent to disregard [one’s] obligations is involved” in
the concept of conscious disregard; “[t]he only ‘intent’ involved is . . . purposely
engaging in conduct which implies a conscious disregard of [one’s] obligations.” In
re Adoption of Doe, 1984-NMSC-024, ¶ 10, 100 N.M. 764, 676 P.2d 1329 (internal
quotation marks and citation omitted).2
{10} Having rejected the argument that criminal liability under the reckless child
abuse statute requires proof that a defendant has knowledge of his or her act, we next
address Defendants’ contention that the State failed to prove by sufficient evidence
that their actions on the day in question demonstrated a reckless disregard of a
substantial and unjustifiable risk. “The test for sufficiency of the evidence is whether
substantial evidence of either a direct or circumstantial nature exists to support a
verdict of guilt beyond a reasonable doubt with respect to every element essential to
Reckless child abuse does not require “the jury to find that [a defendant]
2
intended to harm the children or that [a defendant] actually physically harmed the
children.” State v. Ramirez, 2018-NMSC-003, ¶ 17, 409 P.3d 902 (emphasis added).
8
a conviction.” State v. Cabezuela, 2015-NMSC-016, ¶ 14, 350 P.3d 1145 (internal
quotation marks and citation omitted). The question is whether, “after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” State v.
Chavez, 2009-NMSC-035, ¶ 11, 146 N.M. 434, 211 P.3d 891 (internal quotation
marks and citation omitted).
{11} Defendants do not direct our attention to (nor are we aware of any) authority
in New Mexico involving a defendant leaving a child unattended in a vehicle for an
extended period of time. We therefore turn to a similar case decided by the Court of
Appeals of Virginia, wherein the defendant, a van driver for a daycare, challenged
the sufficiency of the evidence for his conviction of felony child neglect. Whitfield
v. Commonwealth, 702 S.E.2d 590, 594 (Va. Ct. App. 2010). In Whitfield, the
defendant failed to account for the whereabouts of the children in his care, failed to
double-check that all the children were safely in the daycare, and ultimately left a
child in a van for an entire day, resulting in the child’s death. Id. at 592. The court
reasoned that the defendant “created the danger by strapping [the child], a thirteen-
month-old baby, into the van and leaving him unattended on a hot day with little or
no chance of being rescued.” Id. at 595. In affirming the defendant’s conviction, the
court concluded that the defendant’s “acts and omissions displayed a reckless or
9
indifferent disregard for [the child]’s safety under [the] circumstances.” Id. (internal
quotation marks and citation omitted).
{12} Here, like the defendant in Whitfield, Defendants’ conduct while caring for
Victims on the day in question demonstrated a conscious disregard for their safety
and health. See Consaul, 2014-NMSC-030, ¶ 37 (“Typical definitions of
recklessness require an actor to consciously disregard a substantial and unjustifiable
risk[.]”). Defendants failed to follow CYFD safety policies related to the care of
minor children, and this disregard resulted in Victims being left unattended in a
vehicle for a two-hour-and-forty-minute period. First, the State showed that CYFD
specifically trained Defendants on the dangers of leaving children unattended in a
vehicle. Defendants were apprised that children nationwide are frequently harmed
after being left unattended in vehicles, and CYFD’s trainings stressed the importance
of preventing such incidents. Such evidence demonstrates that Defendants were
aware that leaving children unattended in a car, particularly during hot weather,
posed a substantial and unjustifiable risk.
{13} In addition, the State showed, despite Defendants’ awareness of this risk,
Defendants disregarded CYFD safety policies designed to prevent harm to
children—policies on which they had specifically been trained. First, Defendants
were aware that that they needed permission from CYFD to drive children in their
personal vehicles. Defendants nevertheless drove twelve children, including
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Victims, to the park without CYFD’s permission. Second, Defendants were trained
on CYFD policies requiring caregivers to perform headcounts to account for all
children under their supervision when “transitioning” from one location to another.
Defendant Sandi explained that it was Defendants’ routine practice to perform
headcounts of the children in her care, but nevertheless admitted that Defendants
failed to perform a headcount after returning from the park. Defendants’ disregard
for CYFD’s policies on the day in question, especially the headcount policy, is
analogous to the defendant’s failure in Whitfield to complete the logbook—both
policies were designed to account for children. See Whitfield, 702 S.E.2d at 595
(stating that the defendant “did not use the van logbook specifically designed to
ensure that this kind of tragedy would never occur”).
{14} In addition, the State showed that Defendants failed to follow CYFD policies
on the day in question despite having been reprimanded for violating CYFD policies
in the past. 3 In our view, Defendants’ repeated failure to follow CYFD safety
policies despite trainings and past reprimands demonstrates a “conscious[]
disregard” for the safety and health of Victims amounting to “a gross deviation from
the standard of conduct that a law-abiding person would observe.” Consaul, 2014-
NMSC-030, ¶ 37. In addition to the failures described above, Defendants also
3
These prior violations include an instance where Defendants had too many
children in a vehicle and instances where Defendants exceeded the number of
children allowed under their supervision.
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exhibited a “gross deviation from the standard of conduct that a law-abiding person
would observe” by failing to follow their own internal accountability procedures, to
take basic steps to ensure Victims’ safety, and to take appropriate action when
presented with evidence that Victims were absent. See id. Defendant Sandi admitted
that she failed to unbuckle the two youngest children under their supervision, despite
knowing that both Victims were incapable of unbuckling themselves. Moreover,
prior to travelling to the park with the children, Defendants placed twelve sleeping
mats (one for each child in their care) in preparation for an afternoon nap after their
return to the day care. When Defendants returned from the park, the ten children
who exited the SUVs napped or watched a movie, and neither Defendant noticed
that the two mats belonging to Victims remained empty. Defendant Sandi also
prepared menus for the children, including specific “baby menus” for Victims.
Defendant Sandi admitted that her normal “every day” practice while preparing the
menus was to take “attendance” of the children. Despite this routine practice,
Defendant Sandi apparently did not take attendance on that day and, thus, failed to
notice Victims’ absence. Finally, Defendant Sandi admitted she “forgot those two
babies” in her SUV, and when asked whether she had an explanation as to why she
forgot Victims, she responded, “I don’t.”
{15} Overall, the evidence demonstrates that Defendants evinced a conscious
disregard for the risk they “created” by leaving Victims unattended in an SUV “on
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a hot day with little or no chance of being rescued.” Whitfield, 702 S.E.2d at 595.
And, like the defendant in Whitfield, Defendants’ inactions on the day in question,
“displayed an inexcusable pattern of reckless indifference” that led to Victims
remaining in the SUV. Id. at 594-95 (describing the defendant’s failure to “look” for
the victim and the failure to “double[-]check” to ensure all children were safe); see
id. at 594 (stating that leaving the victim unattended in a vehicle for an entire day
and failing to follow safety procedures “cannot be dismissed as simply a momentary,
inadvertent act of ordinary negligence” but rather “an inexcusable pattern of reckless
indifference”). Such a pattern of repeated failures to follow CYFD safety policies
and to pay attention to common-sense indicators of Victims’ absence satisfies the
recklessness requirement set forth in Section 30-6-1(D). Accordingly, we hold that
sufficient evidence supports Defendants’ convictions for reckless child abuse
resulting in death, Section 30-6-1(F), and reckless child abuse resulting in great
bodily harm, Section 30-6-1(E).
II. Jury Instructions
{16} We next address Defendants’ challenges to the jury instructions given at trial.
If “a challenge to the jury instructions has been preserved, we review for reversible
error.” State v. Ellis, 2008-NMSC-032, ¶ 14, 144 N.M. 253, 186 P.3d 245.
“Reversible error arises if . . . a reasonable juror would have been confused or
misdirected” by the jury instruction. State v. Parish, 1994-NMSC-073, ¶ 4, 118 N.M.
1339, 878 P.2d 988. “The propriety of jury instructions given or denied is a mixed
question of law and fact. Mixed questions of law and fact are reviewed de novo.”
State v. Salazar, 1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996 (citing State
v. Attaway, 1994-NMSC-011, ¶ 10, 117 N.M. 141, 870 P.2d 103).
{17} Defendants’ argument regarding jury instructions is two-fold. First,
Defendants contend that the district court erred by failing to instruct the jury on their
proposed definitional instructions. Second, Defendants argue that the elements
instruction for reckless child abuse “failed to appropriately identify the alleged
conduct that endangered” Victims.
A. Definitional Instructions
{18} Defendants maintain that the elements instruction did not explicitly require
the jury to find that Defendants’ conduct be (1) “a voluntary [a]ct or omission” and
(2) that their “reckless disregard be conscious.” In order to cure these alleged
failures, Defendants proposed a definition of reckless disregard and a definition of
accidental conduct. We address each argument in turn.
{19} Defendants requested below that, in addition to the elements instruction, the
district court instruct the jury on the definition of reckless disregard as set forth in
UJI 14-133 NMRA. UJI 14-133 provides, “[f]or you to find that the defendant acted
with reckless disregard in this case, you must find that the defendant acted with
willful disregard of the rights or safety of others and in a manner which endangered
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any person or property.” Relying on the committee commentary for UJI 14-133, the
district court denied Defendants’ requested instruction. The committee commentary
to UJI 14-133 states that this definition “should be used when the offense involves
criminal negligence and the essential elements instruction, or other instruction to be
used with the essential elements instruction, does not define the term ‘reckless,’
‘negligence,’ or similar term.” UJI 14-133 comm. cmt.; see UJI 14-133 use note 1
(“This instruction should not be given with any elements instruction which already
adequately defines the concept of a defendant’s criminal negligence set forth by the
Supreme Court.”). Here, the elements instruction, UJI 14-622, already defined the
mens rea necessary to convict Defendants for reckless child abuse. Specifically, UJI
14-622 required the State to prove Defendants acted with a “reckless disregard,”
defined reckless disregard for the jury, and required the State to establish their
conduct was “more than merely negligent or careless.” A reckless disregard entails
conduct that causes or permits a “substantial and unjustifiable risk of serious harm
to the safety or health of” a child. Id. Because the appropriate mens rea was already
set forth in UJI 14-622, we see no error in the district court’s denial of Defendants’
proposed UJI 14-133 instruction.
{20} We next address Defendants’ proposed jury instruction, which provided a
definition of accidental conduct. The proposed instruction fell outside the language
of the uniform jury instructions for reckless child abuse resulting in death and
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reckless child abuse resulting in great bodily harm. See UJI 14-622 (death); UJI 14-
615 (great bodily harm). Defendants proposed that the district court instruct the jury
as follows:
Evidence has been presented that the death of [M.J.] and the great
bodily harm of [A.L.] that occurred while in the care of . . .
Defendants . . . was accidental.
Accidental means injury resulting from [an] unintended, unforeseeable,
and unexpected cause.
Accidental conduct cannot support a conviction for reckless child
abuse.
If you determine that the death of [M.J.] and the great bodily harm of
[A.L.] was the result of accidental conduct you must find the
Defendants not guilty.
The district court denied Defendants’ proposed jury instruction but permitted
Defendants to argue during closing argument that their conduct was accidental.
{21} Jury instructions that track the language of the uniform jury instructions are
“presumptively valid.” State v. Lucero, 2017-NMSC-008, ¶ 30, 389 P.3d 1039.
“[A]n elements instruction may only be altered when the alteration is adequately
supported by binding precedent or the unique circumstances of a particular case, and
where the alteration is necessary in order to accurately convey the law to the jury.”
UJI Crim. Gen. Use Note. The district court, in accordance with UJI 14-622,
properly instructed the jury on elements necessary to find Defendants guilty of
reckless child abuse. The district court instructed the jury that it must find that
Defendants recklessly disregarded a “substantial and unjustifiable risk of serious
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harm” by failing to follow CYFD procedures in caring for Victims and/or failing to
remove Victims from the SUV. Because the elements instruction tracked the
language of the uniform jury instruction for reckless child abuse, it accurately
conveyed the law to the jury, and therefore Defendants’ proposed accidental conduct
instruction was unnecessary.4 Accordingly, we hold that the district court did not err
when it denied Defendants proposed instructions defining recklessness and
accidental conduct.
B. Elements Instruction
{22} Defendants argue that the elements instruction “failed to appropriately
identify the alleged conduct that endangered” Victims because the “and/or” language
stated in the given instruction “misled the jury.” In essence, Defendants’ argument
is that the jury did not unanimously agree on the verdict. We disagree.
4
Relying on Arrendondo, 2012-NMSC-013, ¶ 16, and Gonzales, 2011-
NMCA-081, ¶ 15, Defendants argue that a jury cannot convict a defendant if an
incident is merely an accident. Defendants’ reliance on these cases is misplaced.
Both cases support the proposition that a defendant’s reckless behavior can lead to
a conviction for child abuse. See, e.g., Arrendondo, 2012-NMSC-013, ¶ 27
(affirming a defendant’s conviction for reckless child abuse when he shot a firearm
into a home knowing there was a “newborn baby” inside); Gonzales, 2011-NMCA-
081, ¶ 31 (holding that it is proper to convict a defendant of reckless child abuse by
endangerment when he or she “engage[s] in conduct that directs the risk at a child
in a manner that is foreseeable and is likely to produce endangerment to the
particular child”). Further, as noted above, the district court properly instructed the
jury on the requisite mens rea to find that the death of M.J. and injuries to A.L. were
caused by Defendants’ recklessness. See UJI 14-622.
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{23} “[W]here alternative theories of guilt are put forth under a single charge, jury
unanimity is required only as to the verdict, not to any particular theory of guilt.”
State v. Godoy, 2012-NMCA-084, ¶ 6, 284 P.3d 410. “[A] jury’s general verdict will
not be disturbed in such a case where substantial evidence exists in the record
supporting at least one of the theories of the crime presented to the jury.” Id. (internal
quotation marks and citation omitted). “[W]e have never suggested that in returning
general verdicts in such cases the jurors should be required to agree upon a single
means of commission, because different jurors may be persuaded by different pieces
of evidence, even when they agree upon the bottom line.” Id. ¶ 7 (internal quotation
marks and citation omitted).
{24} The district court instructed the jury, in relevant part, as follows:
[Defendants] did not follow proper rules and procedures mandated by
CYFD in conducting the care of [Vicims], including failing to do
headcounts, driving [Victims] without CYFD permission, failing to
have [a] proper care giver to child ratio when [Victims were] in
[Defendants’] care, and/or failing to remove [Victims] from a vehicle
which resulted in [Victims] being left unattended in that vehicle and
exposed to unsafe temperatures for a time period of approximately two
hours and [forty] minutes.
{25} The district court was required to instruct the jury regarding the conduct or
course of conduct alleged to be child abuse, and here, it did. See UJI 14-622 (child
abuse resulting in death); UJI 14-615 (child abuse resulting in serious bodily injury).
It instructed the jury on two theories: failure to comply with CYFD requirements
and/or failing to remove Victims from their car seats. See UJI 14-622 (providing that
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the state must produce evidence as to a defendant’s “conduct or course of conduct
alleged to have been child abuse”). As discussed above, substantial evidence
supported Defendants’ convictions for reckless child abuse and there was substantial
evidence supporting both theories. Cf. State v. Nichols, 2006-NMCA-017, ¶ 16, 139
N.M. 72, 128 P.3d 500 (“While we do not know whether the jury unanimously
agreed on which of the alternative means by which [the d]efendant committed
[criminal sexual contact of a minor (CSCM)], we do know that the jury unanimously
agreed that [the d]efendant committed CSCM, which is the controlling inquiry.”).
Despite Defendants’ contention that the elements instruction misled the jury,
Defendants do not point to anywhere in the record to demonstrate that the jury was
confused as to the course of conduct alleged to be reckless child abuse. See State v.
Gardner, 2003-NMCA-107, ¶ 30, 134 N.M. 294, 76 P.3d 47 (concluding that there
was no error in a tendered elements instruction when the defendant pointed to
nothing “in the record suggesting that the verdicts were not unanimous”). In light of
these considerations, we will not invade the province of the jury, which unanimously
decided on a verdict. Accordingly, the district court did not err by tendering the
elements instruction to the jury.
III. Evidentiary Rulings
{26} We next address Defendants’ arguments relating to the district court’s
evidentiary rulings at trial. Defendants argue that the district court abused its
19
discretion in admitting irrelevant and prejudicial evidence of Defendants’ prior
failure to comply with CYFD safety policies and in excluding a lay opinion “from
former police [O]fficer Hyde that the whole event was a tragic accident.” The State
responds that the district court properly admitted evidence that Defendants had
previously failed to comply with CYFD policies, arguing that “Defendants had been
trained about what to do and had been advised of Taylor Tot’s [lack of compliance,]”
so Defendants’ conduct on the day in question was not an accident but a “pattern of
disregarding regulations.” In addition, the State contends that the district court did
not abuse its discretion in refusing to allow Officer Hyde to testify because “opinion
testimony that seeks to state a legal conclusion is inadmissible.”
{27} In reviewing a district court’s evidentiary ruling, “we defer to the trial judge’s
decision to admit or exclude evidence and we will not reverse absent a clear abuse
of discretion.” State v. Woodward, 1995-NMSC-074, ¶ 6, 121 N.M. 1, 908 P.2d 231(internal quotation marks and citation omitted). “An abuse of discretion occurs when
[a] ruling is clearly against the logic and effect of the facts and circumstances of the
case.” Id. (internal quotation marks and citation omitted). “An evidentiary ruling
within the discretion of the court will constitute reversible error only upon a showing
of an abuse of discretion, and a demonstration that the error was prejudicial rather
than harmless.” State v. Jett, 1991-NMSC-011, ¶ 8, 111 N.M. 309, 805 P.2d 78(emphasis added) (citation omitted).
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{28} Defendants’ first contention is that evidence of their prior failure to comply
with CYFD policies was irrelevant and prejudicial. Specifically, Defendants argue
that the admission of evidence that Defendants violated CYFD policies was
improper propensity evidence under Rule 11-404(B)(1) NMRA and thus, irrelevant
under Rule 11-404(B)(2) and Rule 11-401 NMRA. At trial, the State elicited
testimony from Allen Anderson, who introduced CYFD compliance reports
demonstrating Defendants’ lack of compliance with CYFD policies. The district
court admitted the past reports finding Defendants’ past failures in complying with
CYFD policies were relevant under Rule 11-404(B)(2) to demonstrate a “lack of
accident.” Rule 11-404(B)(1) provides that evidence of a person’s prior acts “is not
admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.” However, under Rule
11-404(B)(2) such evidence “may be admissible for another purpose, such as . . .
absence of mistake, or lack of accident.”
{29} According to the CYFD reports, Defendants failed to comply with CYFD
policies, some of which the district court properly concluded were relevant to
Victims overheating in the SUV, and others which were not relevant. We begin with
the relevant information in the reports. See Rule 11-401 (providing that evidence is
relevant if it “has any tendency to make a fact more or less probable” and “the fact
is of consequence in determining the action”). The CYFD reports and Allen’s
21
testimony, were relevant under Rule 11-404(B)(2) because Defendants’ theory of
the case was that they accidentally forgot Victims in the SUV. See State v. Otto,
2007-NMSC-012, ¶ 13, 141 N.M. 443, 157 P.3d 8 (holding that a district court did
not abuse its discretion in admitting evidence of a defendant’s prior conduct because
it was necessary to refute the defendant’s claim that the event was a “mistake or
accident”). The reports showed that Defendants’ previously violated CYFD’s
required caregiver to child ratios, and violated the CYFD policy for the number of
children allowed in a vehicle. This information was relevant to Defendants’ conduct
on the day in question. See State v. Bailey, 2017-NMSC-001, ¶ 14, 386 P.3d 1007(providing that “evidence of other wrongs may be admissible on alternative relevant
bases so long as it is not admitted to prove conformity with character” (internal
quotation marks and citation omitted)). Defendants violated the same CYFD policies
on July 25, 2017, including driving children without CYFD’s permission, failing to
perform headcounts, and exceeding CYFD’s required caregiver to child ratio.
Accordingly, we conclude that the district court did not abuse its discretion in
admitting evidence demonstrating Defendants’ past failures in complying with
CYFD policies.
{30} We acknowledge that some of the evidence regarding Defendants’ failure to
comply with CYFD policies may not have been relevant to a fact of “consequence”
in the case. See Rule 11-401(B). For example, on prior occasions, Defendants failed
22
to obtain written authorization from CYFD to apply sunscreen on children and failed
to adhere to CYFD diaper changing guidelines by failing to wash the child’s hands
after changing a diaper. As to this irrelevant information, Defendants fail to
demonstrate how the district court’s admission of this information prejudiced them.
See Jett, 1991-NMSC-011, ¶ 8 (recognizing that a defendant must make a
demonstration of prejudice to warrant reversal for an evidentiary error). Given
Defendants’ failure to show that they were prejudiced by admission of the irrelevant
evidence, we hold that the district court did not abuse its discretion in admitting such
evidence.
{31} Next, we address Defendants’ argument that the district court erred in not
permitting Officer Hyde to answer the following question asked by defense counsel:
“Based on your investigation in this matter, this was a tragic accident?” The State
objected, asserting that Officer Hyde’s testimony concerned the “ultimate issue” of
whether Defendants’ conduct on the day in question was an accident. That question,
according to the State, was solely for the jury. Agreeing that the question was an
“ultimate issue for the fact-finder,” the district court sustained the State’s objection.
Nevertheless, Defendants were permitted to argue in closing that the death of M.J.
and the injuries to A.L. resulted from a “tragic accident.”
{32} We need not address whether the district court’s ruling precluded Defendants
from eliciting Officer Hyde’s opinion that the death of M.J. and A.L.’s injuries
23
resulted from a “tragic accident” because even if we assume, without deciding, that
the district court erred, Defendants once again fail to demonstrate how the exclusion
prejudiced them. Cf. State v. White, 1994-NMCA-084, ¶ 14, 118 N.M. 225, 880 P.2d
322 (“Because we conclude that the error was harmless, we may assume, without
deciding, that [the d]efendant is correct in his contention that there was error.”).
Here, Defendants baldly assert that exclusion of Officer Hyde’s testimony
prejudiced them, stating his testimony would “have been helpful to determine a fact
in issue” and that the district court’s “failure to admit this evidence likely affected
the jury’s verdict.” As to these arguments, Defendants provide no citations to the
record, no citation to authority, nor do they develop an argument that any prejudice
resulted from the exclusion of Officer Hyde’s testimony. See Lukens v. Franco,
2019-NMSC-002, ¶ 5, 433 P.3d 288 (“When a criminal conviction is being
challenged, counsel should properly present [the appellate] court with the issues,
arguments, and proper authority.” (internal quotation marks and citation omitted));
see also Rule 12-318(A)(4) NMRA (requiring that an appellant’s argument contain
proper citations to “authorities, record proper, transcript of proceedings, or exhibits
relied on”). Because Defendants fail to establish prejudice, we cannot say that the
district court’s decision to exclude Officer Hyde’s testimony was an abuse of
discretion. See Gardner, 2003-NMCA-107, ¶ 29 (concluding there was no error
when a defendant only presented “speculative arguments about prejudice”); see also
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State v. Fernandez, 1994-NMCA-056, ¶¶ 13, 16, 117 N.M. 673, 875 P.2d 1104 (“In
the absence of prejudice, there is no reversible error.”).
IV. Cumulative Error
{33} Defendants argue that the district court’s failure to properly instruct the jury
and its evidentiary errors, taken together, deprived them of a fair trial. “The doctrine
of cumulative error applies when multiple errors, which by themselves do not
constitute reversible error, are so serious in the aggregate that they cumulatively
deprive the defendant of a fair trial.” State v. Ortega, 2014-NMSC-017, ¶ 53, 327
P.3d 1076 (internal quotation marks and citation omitted). “The doctrine of
cumulative error is to be strictly applied, and cannot be invoked if the record as a
whole demonstrates that the defendant received a fair trial.” State v. Samora, 2013-
NMSC-038, ¶ 28, 307 P.3d 328 (alterations, omission, internal quotation marks and
citation omitted). Because the district court did not err in instructing the jury and the
evidentiary errors did not prejudice Defendants, we hold that there was no
cumulative error.
V. Double Jeopardy
{34} Lastly, Defendants request that we vacate one of their convictions for reckless
child abuse because their actions on July 25, 2017, which resulted in M.J.’s death
and great bodily harm to A.L., were “unitary conduct” and therefore, violated the
prohibition against double jeopardy. We are not persuaded. “The Double Jeopardy
25
Clause of the Fifth Amendment, enforced against the states by the Fourteenth
Amendment, protects defendants from receiving multiple punishments for the same
offense.” Ramirez, 2018-NMSC-003, ¶ 38 (internal quotation marks and citation
omitted). Because a double jeopardy claim is “a constitutional question of law,” our
review is “de novo.” Swick, 2012-NMSC-018, ¶ 10.
{35} “There are two classes of double jeopardy multiple-punishment cases: (1) the
double-description case, where the same conduct results in multiple convictions
under different statutes, and (2) the unit-of-prosecution case, where a defendant
challenges multiple convictions under the same statute.” State v. Comitz, 2019-
NMSC-011, ¶ 26, 443 P.3d 1130 (internal quotation marks and citation omitted).
Defendants argue that their convictions for reckless child abuse resulted from unitary
conduct under the same statute and, as such, we apply a unit of prosecution analysis.
{36} “The relevant inquiry in a unit of prosecution case is whether the Legislature
intended [the] punishment for the entire course of conduct or for each discrete act.”
State v. Bernard, 2015-NMCA-089, ¶ 17, 355 P.3d 831 (alterations, internal
quotation marks, and citation omitted). First, we review the plain language of a
criminal statute to ascertain “whether the Legislature has defined the unit of
prosecution.” State v. Olsson, 2014-NMSC-012, ¶ 18, 324 P.3d 1230. If the language
of the statute outlines the unit of prosecution, then we “follow[] that language and
the inquiry is complete.” Id. If the language is ambiguous, we “determine whether a
26
defendant’s acts are separated by sufficient indicia of distinctness to justify multiple
punishments.” Swick, 2012-NMSC-018, ¶ 33 (internal quotation marks and citation
omitted).
{37} In this case, the jury convicted each Defendant of one count of reckless child
abuse resulting in death, for M.J., and one count of reckless child abuse resulting in
great bodily harm, for A.L. We recognize our Supreme Court’s holding in Ramirez,
2018-NMSC-003, ¶ 55, stating that the language of the child endangerment statute
in Section 30-6-1(D) is “ambiguous as to the unit of prosecution.” Thus, we must
determine whether Defendants’ conduct in this case was separated by sufficient
indicia of distinctness as to warrant separate convictions for reckless child abuse.
{38} In determining whether a defendant’s actions are separated by sufficient
indicia of distinctness we look to “(1) the temporal proximity of the acts; (2) [the]
location of the victim(s) during each act; (3) [the] existence of an intervening event;
(4) sequencing of acts; (5) [the] defendant’s intent as evidenced by his [or her]
conduct and utterances; and (6) the number of victims.” State v. Carson, 2020-
NMCA-015, ¶ 34, 460 P.3d 54 (internal quotation marks and citation omitted). In
analyzing a double jeopardy claim, the number of victims has a special significance
because “ ‘[m]ultiple victims will likely give rise to multiple offenses.’ ” Ramirez,
2018-NMSC-003, ¶ 57 (quoting Herron v. State, 1991-NMSC-012, ¶ 15, 111 N.M.
357, 805 P.2d 624); see State v. Bernal, 2006-NMSC-050, ¶ 18, 140 N.M. 644, 146
27
P.3d 289 (“While the existence of multiple victims does not, itself, settle whether
conduct is unitary or distinct, it is a strong indicator of legislative intent to punish
distinct conduct that can only be overcome by other factors.”).
{39} Defendants rely on State v. Castañeda, 2001-NMCA-052, ¶ 12, 130 N.M.
679, 30 P.3d 368, in supporting the argument that their convictions for reckless child
abuse violated the prohibition against double jeopardy. In Castañeda, the defendant
drove three children while intoxicated, and none of the children sustained any
injuries from the defendant’s conduct. Id. ¶¶ 1-3. In driving the three children, we
acknowledged that the defendant “committed one continuous act amounting to child
abuse[,]”and held that the defendant’s conduct “occurred during a single criminally
negligent act[.]” Id. ¶¶ 14, 18. However, we emphasized, “a single unit of
prosecution in a child abuse case involving multiple victims is only appropriate
where the children have not actually been harmed.” Id. ¶ 15 (emphasis added).
Where “actual harm results from child abuse, . . . the focus shifts from the actions of
the abuser to the result of those actions, and each child harmed is a distinct victim
with unique injuries[,]” and “it is entirely appropriate to charge” a separate count for
each victim. Id.
{40} In this case, Defendants’ conduct resulted in reckless child abuse resulting in
death to M.J. and great bodily harm to A.L. Dr. Cain, a forensic pathologist who
performed the autopsy on M.J., opined that M.J. died from “hyperthermia” or heat
28
stroke. Furthermore, the evidence at trial indicated that A.L. had a body temperature
of 108° F shortly after the incident and suffered severe injuries, which required A.L.
to relearn how to talk, walk, eat, and breathe by herself. In direct contrast to the
situation in Castañeda, here, both Victims were harmed by Defendants’ conduct of
leaving Victims unattended in the SUV. Accordingly, we hold that Defendants’
convictions for reckless child abuse do not violate the prohibition against double
jeopardy because each Victim suffered unique and distinct injuries constituting
multiple violations of the statute.
CONCLUSION
{41} We affirm.
{42} IT IS SO ORDERED.
_________________________________
BRIANA H. ZAMORA, Judge
WE CONCUR:
_________________________________
JACQUELINE R. MEDINA, Judge
_________________________________
JANE B. YOHALEM, Judge
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