STATE V. CLEMONTS, 2006-NMCA-031, 139
N.M. 147, 130 P.3d 208
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
ALONZO CLEMONTS,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
2006-NMCA-031, 139 N.M. 147, 130 P.3d 208
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY, George
A. Harrison, District Judge
Certiorari Denied, 2006-NMCERT-003, No.
29,675, March 9, 2006. Released for publication March 21, 2006.
Patricia A. Madrid, Attorney General,
Katherine Zinn, Assistant Attorney General, Santa Fe, NM, for Appellee
John Bigelow, Chief Public Defender,
Cordelia A. Friedman, Assistant Appellate Defender, Santa Fe, NM, for Appellant
IRA ROBINSON, Judge. WE CONCUR: JONATHAN
B. SUTIN, Judge, MICHAEL E. VIGIL, Judge
{1} Alonzo
Clemonts (Defendant) appeals his conviction of felony child abuse. His
conviction stems from a low-speed police chase. We sua sponte reviewed whether
there was sufficient evidence to convict Defendant, and we hold that the
evidence was insufficient to convict him of felony child abuse. Therefore, we
do not address the issues on which Defendant seeks reversal, namely,
application of the general/specific rule, denial of due process, and improper
enhancement of his sentence.
{2} On January 27,
2002, at approximately 10:23 p.m., Defendant was driving down Main Street in
Farmington with three children in his car. Officer Glenn Mearls, relying on his
radar, determined that Defendant was speeding by driving between sixty-eight
and seventy-two miles per hour in a thirty-five mile-per-hour zone. Officer
Mearls turned around to pursue Defendant. After following Defendant for about
an eighth of a mile, Officer Mearls activated his emergency lights and siren.
Defendant continued driving and entered a residential neighborhood. During his
pursuit, Officer Mearls noticed that Defendant maintained a speed of thirty to
thirty-five miles per hour. Officer Mearls also noticed that Defendant stopped
at one red traffic signal and one stop sign, but failed to use his turn signal
at one of those intersections and rolled through one stop sign without coming
to a complete stop.
Officer Mearls testified that Defendant maintained
his car in his lane, but moved from side-to-side within that lane.
{3} Officer Dwayne
Faverino was in the neighborhood, listening to his police radio, and heard
Officer Mearls updating his efforts to get Defendant to stop for the speeding
violation. Officer Faverino responded and attempted to block Defendant by
placing his car perpendicular across the road in the intersection Defendant was
approaching.
When Defendant slowed down as he approached Officer
Faverino's car, Officer Mearls approached Defendant's car from behind and
placed his push bumper against Defendant's car, pushing it into Officer
Faverino's car. Defendant stopped his car, placed it in park, got out of his
car, and ran away, leaving the three children in the car.
Officers
Mearls, Faverino, and Norwood pursued Defendant and Officer Mearls subdued him
by striking him in the back of the head with the butt of his gun.
After
handcuffing Defendant, the officers took Defendant to the emergency room to be
treated for the injury he suffered when Officer Mearls struck him.
{4} Officer Mearls
thought that he smelled alcohol on Defendant's breath and tried to administer a
breath alcohol test at the hospital, but Defendant refused the test and was
charged with aggravated DWI. At all times, Defendant denied being under the
influence of alcohol and was later acquitted of that charge.
{5} On July 12, 2002,
the trial court filed a Notice of Trial for August 13, 2002. On August 5, 2002,
the State filed a Supplemental State's Witness List, which listed six
additional witnesses. On August 8, 2002, Defendant filed an objection to the
late disclosure of the State's witnesses, claiming that the disclosure came
less than a week before trial in violation of Rule-501(A)(5) and asked the
trial court to bar the testimony of these witnesses, but the trial court
declined to exclude the witnesses.
{6} At trial, Defendant
tendered a jury instruction on child abandonment, which the trial court
refused, but instead gave an instruction for felony abuse of a child to the
jury. Defendant was convicted of four misdemeanor violations: (1) speeding; (2)
resisting, evading, or obstructing an officer; (3) failure to use turn signals;
and (4) failure to obey traffic control devices. Defendant was also convicted
of felony abuse of a child, which did not result in death or great bodily
injury.
{7} Following
Defendant's convictions, the State pursued a habitual offender enhancement at a
hearing where the evidence of Defendant's prior convictions were certified
copies of judgments and sentences from other jurisdictions. These records were
admitted under seal and no witnesses with first-hand knowledge identified
Defendant as the prior offender on the out-of-state judgments and sentences.
Defendant identified himself as Alonzo Fleming when he was taken into custody,
and he did not have any identification on his person at that time.
During
his booking, Defendant refused to identify himself. Consequently, Officer
Mearls contacted the mother of one of the children that was left in Defendant's
car and she identified Defendant as Alonzo Williamson. She explained that she
had a child with him and that he was not from the area. She further explained
that she had received letters from him while he was incarcerated in the Monroe
County Jail in New York. Sergeant Anderson, a booking officer, contacted the
Monroe County Jail, which revealed that Defendant's name was Alonzo Clemonts
and that he had numerous felony convictions.
{8} The State connected
the out-of-state records with Defendant using a fingerprint expert, who examined
the prints associated with out-of-state records and the fingerprints taken from
Defendant at the time of his booking in New Mexico. The expert declared that
all of the prints were identical.
Defendant was sentenced to three
years, enhanced by four, totaling seven years.
{9} Defendant's
contention, that the underlying misdemeanors do not support a finding of felony
child abuse, goes to the sufficiency of evidence. On a sufficiency of the
evidence challenge, the relevant question is whether, after reviewing the
evidence in the light most favorable to the prosecution, a rational
trier-of-fact could have found the essential elements of the crime beyond a
reasonable doubt.
State v. Perea,
2001-NMSC-026, ¶ 5,
130 N.M. 732,
31
P.3d 1006. The reviewing court does not weigh the evidence, or substitute its
judgment for that of the fact finder, as long as there is sufficient evidence
to support the verdict.
State v. Mora,
1997-NMSC-060, ¶ 27,
124 N.M.
346,
950 P.2d 789.
B. SUFFICIENT EVIDENCE OF FELONY ABUSE OF A CHILD
{10} We
sua
sponte raised the question whether there was sufficient evidence presented
by the State to satisfy each element set forth in Jury Instruction No. 7
(felony child abuse) because the State's failure to come forward with
substantial evidence of the crime charged implicates fundamental error and the
fundamental rights of Defendant.
State v. Vallejos,
2000-NMCA-075, ¶ 29,
129 N.M. 424,
9 P.3d 668. "[W]e have held that the question of sufficiency
of the evidence to support a conviction may be raised for the first time on
appeal."
State v. Stein,
1999-NMCA-065, ¶ 9,
127 N.M. 362,
981 P.2d
295;
accord In re Gabriel M.,
2002-NMCA-047, ¶¶ 9, 27,
132 N.M. 124,
45
P.3d 64. To insure a fully informed decision, we requested supplemental
briefing by the parties.
{11} Defendant argues
that none of the misdemeanor charges in this case can possibly support the jury
verdict of felony child abuse.
See § 30-6-1 (defining felony abuse of a
child). We begin our review of the sufficiency of evidence to support
Defendant's conviction with the elements of child abuse. The State had the
burden of proving, beyond a reasonable doubt, that Defendant caused children
under the age of eighteen, to be placed in a situation that may have endangered
their life or health and did so with reckless disregard for the safety of the
children. § 30-6-1(A)(3), (D)(1). Reckless disregard requires that Defendant
"knew or should have known [his] conduct created a substantial and
foreseeable risk, [he] disregarded that risk and [he] was wholly indifferent to
the consequences of the conduct and to the welfare and safety" of the
children. UJI
14-604 NMRA.
{12} The State, relying
on
Santillanes,
Castañeda, and
Guilez, contends that
"Defendant's cumulative acts of speeding and abruptly swerving such that
he almost lost control of his vehicle, driving while intoxicated, and leading
police on a low-speed vehicle chase through city streets while ignoring traffic
laws, all acted to endanger the three children riding as passengers inside the
vehicle." We are unpersuaded.
{13} The State correctly
points out that our appellate courts have sustained convictions for felony
child abuse where the underlying conduct was a misdemeanor. In
Guilez,
2000-NMSC-020, ¶ 25, our Supreme Court upheld the defendant's convictions for
DWI, reckless driving, and child abuse, when his underlying conduct was that he
drove at a speed of sixty-five to seventy-five miles per hour after dark
without headlights or taillights and collided with a fence. He admitted to
drinking beer. He smelled of alcohol, had bloodshot eyes, and failed the
sobriety test. The child in the truck was unrestrained. Furthermore, in
Santillanes,
2001-NMSC-018, ¶ 38, our Supreme Court upheld a conviction for criminally
negligent child abuse when the defendant drove while intoxicated with her
children in the car. Lastly, in
Castañeda,
2001-NMCA-052, ¶ 22, this
Court upheld a conviction for criminally negligent child abuse when the
defendant drove while intoxicated on the wrong side of a divided highway with
her unrestrained children in the car.
{14} This case is
distinguishable from the above cases. Most notably, Defendant was acquitted of
DWI. Evidence was presented that Defendant was speeding, but then slowed to
thirty-five miles per hour and lawfully went through six intersections when he
failed to stop for the police. During this time, the police observed that
Defendant failed to use a turn signal on one turn and slowed, but did not come
to a complete stop at a single stop sign, and that his car was drifting back
and forth within its lane of travel. We note first that there is nothing
unlawful in swaying within one's own lane. There was no evidence presented that
the children were unrestrained. There was no evidence presented of the
surrounding circumstances, i.e., the extent of Defendant's abrupt swerve,
traffic congestion, or volume, that indicated that Defendant was wholly
indifferent, or acted with a reckless disregard. When Officer Mearls ran after
Defendant, he had his service revolver drawn, with his finger away from the
trigger, and subdued Defendant by striking him on the back of his head with the
butt of the drawn gun.
{15} However, this Court
has explained that mere proximity to a dangerous situation is insufficient to
support a conviction for child abuse.
See State v. Trujillo,
2002-NMCA-100, ¶¶ 19-20,
132 N.M. 649,
53 P.3d 909 (holding that no
"reasonable probability or possibility" of endangerment existed when
a daughter, not in "direct line of danger," witnessed her father
abusing her mother (internal quotation marks and citation omitted)). The
Legislature did not intend to criminalize conduct creating "a mere
possibility, however remote, that harm may result" to a child.
State v.
Ungarten,
115 N.M. 607, 609,
856 P.2d 569, 571 (Ct. App. 1993). Rather,
"[t]here must be a reasonable probability or possibility that the child
will be endangered."
State v. McGruder,
1997-NMSC-023, ¶ 37,
123
N.M. 302,
940 P.2d 150 (internal quotation marks and citation omitted). Lastly,
in
State v. Roybal,
115 N.M. 27, 34,
846 P.2d 333, 340 (Ct. App. 1992),
during a drug transaction, police officers, who apprehended the defendant and
his co-defendants, were armed and one of the co-defendants resisted arrest.
This Court held that there was insufficient evidence that the defendant's
daughter was actually placed in danger when the child watched her parent
conduct a drug transaction, while she sat in the defendant's car ten to fifteen
feet away, even though drug transactions might be attended by violence.
Id.
{16} Here, Defendant was
acquitted of DWI and the misdemeanor traffic offenses he committed, either
exclusively or in the aggregate, did not expose a substantial risk to the
children's lives or health as passengers in Defendant's car. Furthermore, the
possibility that the children could have been placed in the line of danger is
lacking because, as in
Ungarten, the mere possibility of harm is not
enough to sustain a conviction of felony child abuse. Furthermore, in contrasting
Roybal, the child in that case was more likely in the path of danger
than the circumstances presented here because when Officer Mearls used his
weapon to strike Defendant on the back of the head, he was in a foot pursuit,
running away from the location of the children. Thus, as in
Roybal and
Trujillo,
there was insufficient evidence to support a child abuse conviction because the
children were not in the direct line of any danger. In
Santillanes,
Casteñeda,
and
Guilez, the underlying offenses which supported the felony child
abuse convictions were DWI in all three cases and reckless driving, or
unrestrained child, or vehicular homicide, none of which were present.
There
was evidence presented that Defendant never saw or acknowledged that he was
being pursued. Lastly, though it was undisputed that Defendant was speeding,
speed alone is insufficient to show reckless or wanton operation of a motor
vehicle.
See State v. Hayes, 77 N.M. 225,
421 P.2d 439 (1966);
see
also Alford v. Drum,
68 N.M. 298, 301,
361 P.2d 451, 452 (1961)
(stating that "it is well established in this jurisdiction that speed
alone, or speed accompanied by inadvertence, or speed accompanied by acts of
mere negligence, as the term is ordinarily understood, does not meet the test
of [a reckless disregard of the rights of others])."
{17} Accordingly, we find
that, in light of Defendant's acquittal on the DWI charge and that there was no
evidence presented that the children were endangered, the evidence in this case
could not justify a finding by a rational trier-of-fact that Defendant showed a
reckless disregard for the children in his car, or exposed them to a
substantial risk to their safety, to sustain a conviction of felony child
abuse. Since we find that there was insufficient evidence to find Defendant
guilty of felony child abuse, we need not address the remaining issues raised
by Defendant.
{18} We hold that the
evidence here was insufficient for a conviction of felony child abuse. We,
therefore, reverse and remand with instructions to vacate Defendant's
conviction for felony child abuse and enter an amended judgment and sentence.