State v. Young ( 2013 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. 32,798
5 ERIK YOUNG,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
8 Jane Shuler-Gray, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Bennett J. Baur, Acting Chief Public Defender
13 Kathleen T. Baldridge, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 BUSTAMANTE, Judge.
1 {1} Defendant appeals from his conviction for aggravated battery against a
2 household member in violation of NMSA 1978, Section 30-3-16(C) (2008). On
3 appeal, Defendant challenges the district court’s refusal to strike a juror for cause and
4 the sufficiency of the evidence supporting his conviction. This Court issued a
5 calendar notice proposing to affirm. Defendant has filed a memorandum in
6 opposition, which we have duly considered. Unpersuaded, we affirm.
7 Juror Bias
8 {2} Defendant argues that the district court’s refusal to strike a prospective juror
9 for cause, thereby forcing Defendant to utilize one of his peremptory challenges to
10 strike the juror, mandates reversal. Defendant contends that because the juror was
11 acquainted with Victim’s father, the prosecuting attorney, and one of the police
12 officer’s testifying in the case, and given her emotional reaction when she learned the
13 case involved domestic violence, the juror should have been stricken for cause. We
14 proposed to conclude that, because the juror at issue stated she could be fair and
15 impartial and the district court judge appears to have considered the juror to be
16 credible in her response, Defendant had not demonstrated that the district court abused
17 its discretion in refusing to strike the juror. See State v. Hernandez, 1993-NMSC-007,
18 ¶ 52, 115 N.M. 6, 846 P.2d 312 (stating that an appellate court reviews for manifest
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1 error “[b]ecause the trial judge is in the best position to assess the demeanor and
2 credibility of prospective jurors”).
3 {3} In response, Defendant directs this Court to State v. Dobbs, 1983-NMCA-033,
4 ¶ 56, 100 N.M. 60, 665 P.2d 1151, rev’d on other grounds by State v. Tollardo, 2012-
5 NMSC-008, ¶ 37, n.6, 275 P.3d 110, for the proposition that “a juror’s affirmance of
6 impartiality is not conclusive.” [MIO 7] Defendant also cites to State v. Sanchez,
7 1995-NMSC-053, ¶ 14, 120 N.M. 247, 901 P.2d 178, for the proposition that “juror
8 bias may be implied as a matter of law in New Mexico.” [Id.] We conclude that Dobbs
9 does not support reversal in this case. In Dobbs, this Court affirmed the district
10 court’s refusal to excuse jurors for cause despite the fact that the jurors knew
11 witnesses or victims. 1983-NMCA-033, ¶¶ 53-56. Further, while we agree that some
12 relationships between a juror and the witnesses, victims, or prosecution may give rise
13 to an implication of bias as a matter of law, the facts of this case do not rise to that
14 level. In Sanchez, our Supreme Court relied on Justice O’Connor’s concurrence as
15 an indication of what circumstances warrant that juror bias be implied as a matter of
16 law. Sanchez, 1995-NMSC-053, ¶ 13 (“Some examples might include a revelation that
17 the juror is an actual employee of the prosecuting agency, that the juror is a close
18 relative of one of the participants in the trial or the criminal transaction, or that the
19 juror was a witness or somehow involved in the criminal transaction.”)(quoting Smith
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1 v. Phillips, 455 U.S. 209, 215 (1982)). Based on Sanchez, we conclude that
2 Defendant’s assertion that the juror had “a known association with the prosecutor,
3 [Victim’s] father and one of the testifying witnesses[,]” [MIO 7] is insufficient to rise
4 to the level contemplated by our Supreme Court in Sanchez. Accordingly, we
5 conclude that Defendant has not demonstrated that the district court abused its
6 discretion in refusing to strike Juror No. 7 for cause.
7 Sufficiency of the Evidence
8 {4} Defendant maintains that there was insufficient evidence to support his
9 conviction for aggravated battery against a household member in violation of Section
10 30-3-16(C). Defendant argues that the State presented insufficient evidence of either
11 great bodily harm or that the battery was committed in a manner whereby great bodily
12 harm could have been inflicted. [MIO 9-11] In this Court’s calendar notice, we
13 proposed to conclude that Victim’s testimony about the nature of the attack was
14 sufficient to support the jury’s conclusion that the battery occurred in a manner that
15 could have resulted in great bodily harm. [CN 5-6]
16 {5} In response, Defendant argues that, without testimony in the record from either
17 Victim or a medical expert “about the high probability of death or that the injuries
18 likely would have resulted in serious disfigurement, loss of any member or organ of
19 [Victim’s] body or prolonged impairment of any kind[,]” the jury’s determination that
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1 Defendant’s actions would have likely resulted in great bodily harm was speculative.
2 [MIO 10] In this Court’s calendar notice, we pointed out that aggravated battery
3 “requires only that great bodily harm could result, not that it must result,” State v.
4 Pettigrew, 1993-NMCA-095, ¶ 7, 116 N.M. 135, 860 P.2d 777; that the statute
5 criminalizes the manner in which the harm is inflicted and not necessarily the resulting
6 harm, see NMSA 1978, § 30-3-5(C) (1969); and that the nature of the attack is
7 sufficient to establish that a defendant “acted in a way that would likely result in great
8 bodily harm or even death to the victim, despite the lack of evidence of such harm,”
9 State v. Dominguez, 1993-NMCA-042, ¶ 41, 115 N.M. 445, 853 P.2d 147.
10 {6} In proposing to affirm, we relied on Dominguez for the proposition that
11 evidence the defendant was one of several men kicking and hitting the victim and that
12 one man had a tire tool was sufficient evidence to demonstrate that the attack would
13 have likely resulted in great bodily harm. We analogized Dominguez to the facts of
14 this case and proposed to conclude that Defendant’s using a bottle to strike Victim in
15 the head hard enough to cause bleeding, and then continuing his attack—hitting and
16 kicking Victim in the head and banging her head into the wall—was sufficient
17 evidence to support the jury’s conclusion that the battery occurred in a manner that
18 was likely to have resulted in great bodily harm. [CN 6] Defendant has not addressed
19 our reliance on Dominguez or provided citation to authority that requires a different
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1 conclusion. See State v. Sisneros, 1982-NMSC-068, ¶ 7, 98 N.M. 201, 647 P.2d 403
2 (“The opposing party to summary disposition must come forward and specifically
3 point out errors in fact and in law[.]”). We therefore rely on Dominguez to conclude
4 that sufficient evidence existed to support Defendant’s conviction.
5 {7} For the reasons stated above and in this Court’s notice of proposed disposition,
6 we affirm.
7 {8} IT IS SO ORDERED.
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9 MICHAEL D. BUSTAMANTE, Judge
10 WE CONCUR:
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12 MICHAEL E. VIGIL, Judge
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14 M. MONICA ZAMORA, Judge
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