State v. Dean ( 2010 )

Correction Page: BuWVz filed 5-10-10: Page 1, line 8: Replace Stephen K. Quinn with Teddy L. Hartley.
1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
3 also note that this electronic memorandum opinion may contain computer-generated errors or other
4 deviations from the official paper version filed by the Court of Appeals and does not include the
5 filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 29,814
10 ALICIA DEAN,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
13 Teddy L. Hartley, District Judge
14 Gary K. King, Attorney General
15 Margaret E. McLean, Assistant Attorney General
16 Santa Fe, NM
17 for Appellee
18 The Law Offices of Nancy L. Simmons, P.C.
19 Nancy L. Simmons
20 Albuquerque, NM
21 for Appellant
22 MEMORANDUM OPINION
23 BUSTAMANTE, Judge.
1 Defendant appeals her conviction for abuse of a child (resulting in great bodily
2 harm), a first degree felony. The notice proposed to affirm and Defendant filed a
3 timely memorandum in opposition pursuant to a granted motion for extension of time.
4 We remain unpersuaded by Defendant’s arguments and therefore affirm.
5 Issue (1): Defendant continues to argue that the district court erred in admitting
6 photographs of Victim after she had undergone skin graft surgery. [DS 5, 7; MIO 1;
7 RP 132, 144] “We review the admission of evidence under an abuse of discretion
8 standard and will not reverse in the absence of a clear abuse.” State v. Sarracino,
9 1998-NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 72.
10 Defendant objects to the photographs because they “possessed a certain
11 ‘goriness’” beyond the “blisters and redness” otherwise caused by the hot water. [DS
12 5; MIO 2] Defendant argues also that the photographs were cumulative of the
13 doctor’s testimony and were merely inflammatory. [MIO 2] The State introduced
14 the photographs for purposes of showing that the extent of harm to Victim, as
15 demonstrated by the resultant treatment, was such that it refuted Defendant’s claim of
16 an accidental burning. [RP 145-46] In addition, the photographs were relevant to the
17 State’s argument that Defendant’s actions caused great bodily harm to Victim, as
18 reflected by the treatment required to address the harm. [RP 144] Because the
19 photographs were highly relevant to the State’s theory of the case, we hold that the
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1 district court did not abuse its discretion in admitting the photographs. See State v.
2 Rojo, 1999-NMSC-001, ¶ 48, 126 N.M. 438, 971 P.2d 829 (filed 1998) (recognizing
3 that determination of whether the prejudicial impact of evidence outweighs its
4 probative value is left to the discretion of the trial judge); see also State v. Pettigrew,
5 116 N.M. 135, 139, 860 P.2d 777, 781 (Ct. App. 1983) (stating that “we are unaware
6 of any case that has reversed a conviction due to allegedly inflammatory
7 photographs.”).
8 Issue (2): Defendant continues to argue that there was a lack of substantial evidence
9 to support her conviction for abuse of Victim resulting in great bodily harm. [DS 7]
10 We review the evidence to determine “whether substantial evidence of either a direct
11 or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt
12 with respect to every element essential to a conviction.” State v. Sutphin, 107 N.M.
13 126, 131, 753 P.2d 1314, 1319 (1988). Under this standard, “[w]e view the evidence
14 in the light most favorable to supporting the verdict and resolve all conflicts and
15 indulge all inferences in favor of upholding the verdict.” State v. Hernandez, 115
16 N.M. 6, 26, 846 P.2d 312, 332 (1993). We do not re-weigh the evidence, nor
17 substitute our judgment for that of the fact-finder, so long as there is sufficient
18 evidence to support the verdict. Sutphin, 107 N.M. at 131, 753 P.2d at 1319.
19 Defendant’s conviction requires findings that Defendant caused Victim to be
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1 placed in a situation which endangered the life or health of Victim, or caused Victim
2 to be tortured or cruelly confined or cruelly punished; that Defendant acted
3 intentionally or with reckless disregard and without justification; that Defendant’s
4 actions resulted in great bodily harm to Victim; and that Victim was under the age of
5 eighteen. See NMSA 1978, § 30-6-1(D) (2009); UJI 14-602 NMRA. [RP 159]
6 Evidence was introduced that Defendant caused the buttocks and legs of
7 Victim, a child of approximately two years and nine months [DS 3], to be exposed to
8 hot water [RP 145; DS 5], at a temperature of 135 degrees Fahrenheit [RP 145; DS
9 5] such that Victim suffered second degree burns to 15 to 17% of her body. [RP 144]
10 Evidence was further introduced that Victim’s injuries required her to be treated in a
11 critical care unit room at a Lubbock burn unit [RP 144]; that the risks to Victim were
12 very dangerous [RP 144]; and that Victim had to have two surgeries for skin grafts
13 [RP 132, 144], and multiple dressing changes on a daily basis. [RP 144]
14 We hold that the foregoing facts support Defendant’s conviction for child abuse
15 resulting in great bodily harm. See State v. Sparks, 102 N.M. 317, 320, 694 P.2d
16 1382, 1385 (Ct. App. 1985) (defining substantial evidence as that evidence which a
17 reasonable person would consider adequate to support a defendant’s conviction). We
18 recognize Defendant’s position that the burns occurred when she was cleaning Victim
19 with a shower spray-nozzle after Victim soiled her pants. [DS 4] Defendant asserts
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1 that, in her haste to clean Victim, she did not realize that the water temperature was
2 such that she was burning Victim. [DS 4] Defendant refers also to the treating
3 physician’s acknowledgment that Victim’s burns could have been caused by two
4 seconds of contact with hot water [MIO 3], and argues that this supports her version
5 of the events that the burning was accidental and that she simply made a mistake while
6 in a hurry. [MIO 3]
7 Although Defendant argues that the burning was accidental and does not merit
8 a finding that she deviated from a reasonable standard of care [MIO 3], the jury as
9 fact-finder was free to reject Defendant’s version of events. See Sutphin, 107 N.M.
10 at 131, 753 P.2d at 1319 (holding that the fact-finder may reject defendant's version
11 of events); State v. Foster, 1999-NMSC-007, ¶ 42, 126 N.M. 646, 974 P.2d 140
12 (recognizing that it is up to the jury to weigh any contradictory evidence); State v.
13 Nichols, 2006-NMCA-017, ¶ 11, 139 N.M. 72, 128 P.3d 500 (filed 2005) (recognizing
14 that the jury, as trier of fact, is entitled to weigh conflicting evidence). In this regard,
15 the jury reasonably could have questioned Defendant’s credibility, given that she
16 changed her version as to how Victim was burned between the time she was
17 interviewed by police and her ultimate trial testimony. [RP 139-40, 149; DS 4] The
18 jury could have considered also the testimony of State witness Turnbough, who
19 indicated that Victim’s burns were not consistent with Defendant’s narrative. [RP
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1 135] We lastly reject Defendant’s reliance on the “evidence equally consistent with
2 two hypotheses tends to prove neither” argument [MIO 3-4] because, by its verdict,
3 the jury necessarily found the hypothesis of guilt more reasonable than the hypothesis
4 of innocence. See State v. Montoya, 2005-NMCA-078, ¶ 3, 137 N.M. 713, 114 P.3d
5 393.
6 Conclusion.
7 Based on the foregoing discussion, we affirm.
8 IT IS SO ORDERED.
9
10 MICHAEL D. BUSTAMANTE, Judge
11 WE CONCUR:
12
13 JAMES J. WECHSLER, Judge
14
15 LINDA M. VANZI, Judge
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