STATE V. SANDERS, 1979-NMCA-115, 93 N.M.
450, 601 P.2d 83 (Ct. App. 1979)
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
MIKE SANDERS, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
1979-NMCA-115, 93 N.M. 450, 601 P.2d 83
APPEAL FROM THE DISTRICT COURT OF QUAY
COUNTY FROST, Judge
JEFF BINGAMAN, Attorney General, ARTHUR
ENCINIAS, Assistant Attorney General, Santa Fe, New Mexico Attorneys for
Appellee.
NARCISO GARCIA, JR., TOULOUSE, KREHBIEL
& DeLAYO, P.A., Albuquerque, New Mexico Attorneys for Appellant.
WOOD, J., wrote the opinion. WE CONCUR:
Hendley, J., Walters, J.
{*451} WOOD, Chief
Judge.
{1} We reverse defendant's
conviction of child abuse because of the trial court's refusal to give
defendant's requested instruction limiting the jury's consideration of certain
evidence. None of the other issues briefed by defendant amount to reversible
error and, thus, are not discussed.
{2} The child abuse offense,
§
30-6-1(C), N.M.S.A. 1978, was submitted to the jury on the basis that
defendant knowingly or intentionally, and without justifiable cause, caused or
permitted the child to be tortured or cruelly punished.
{3} The prosecution
introduced evidence of two incidents of alleged child abuse prior to the
incident in question. This evidence was introduced, under Evidence Rule 404(b),
to prove the incident in question was not an accident.
{4} U.J.I. Crim. 40.28 is an
approved instruction which limits the jury's consideration of evidence of other
wrongs or offenses to the purpose for which the evidence was introduced.
{5} Defendant's requested
instruction, consistent with U.J.I. 40.28, would have limited jury
consideration of the prior incidents to "absence of accident...."
This requested instruction was refused.
{6} The Use Note to U.J.I.
Crim. 40.28 states that upon request, this instruction shall be given at the
time final instructions are given to the jury. This "use" is
consistent with Evidence Rule 106. Refusal of the requested instruction was
error.
{7} In
State v. Traxler,
91 N.M. 266,
572 P.2d 1274 (Ct. App. 1977) we considered the consequence of a
failure to give an instruction that U.J.I. Crim. states "shall" be
given, and held that upon a showing of the slightest evidence of prejudice, the
error would be reversible error. Compare
State v. Fuentes, 91 N.M. 554,
577 P.2d 452 (Ct. App. 978). Evidence as to defendant's responsibility for the
child's injury was severely disputed, and defendant's credibility was crucial.
See
State v. Day, 91 N.M. 570,
577 P.2d 878 (Ct. App.1978). In this
situation there is a sufficient showing of prejudice so that the failure to
give the instruction based on U.J.I. Crim. 40.28 was reversible error.
{8} The conviction is
reversed and remanded with instructions to grant defendant a new trial.
WE CONCUR: Hendley, J., Walters, J.