State v. D Rowlan

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 28,370 5 DANIEL ROWLAN, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY 8 Don Schulte, District Judge 9 Gary K. King, Attorney General 10 Santa Fe, NM 11 for Appellee 12 Hugh W. Dangler, Chief Public Defender 13 Eleanor Brogan, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 FRY, Chief Judge. 18 Defendant appeals his conviction for criminal child abuse. We proposed to 19 affirm in a calendar notice, and Defendant has responded with a memorandum in 20 opposition. Unpersuaded by Defendant’s arguments, we affirm. 1 During trial, the district court merged two of the three original counts of child 2 abuse into Count 1. [RP 98] The jury entered a verdict of not guilty for Count 1, and 3 a verdict of guilty for Count 2. [RP 122-23] Count 2 charged Defendant with child 4 abuse for intentionally and without justification causing the child to be tortured, 5 cruelly confined, or cruelly punished by stuffing a towel into the child’s mouth and 6 holding it in place. [RP 1] In his memorandum in opposition to our calendar notice, 7 Defendant continues to claim that there was insufficient evidence to support the child 8 abuse conviction, and the district court erred when it denied Defendant’s motion for 9 directed verdict on both counts. 10 A motion for directed verdict presents the question of whether there was 11 sufficient evidence to support a charge. State v. Dominguez, 115 N.M. 445, 455 , 853 12 P.2d 147 , 157 (Ct. App. 1993). In other words, we must determine whether there was 13 sufficient evidence presented by the State to support the charge of child abuse as 14 described in Count 2. For sufficiency-of-the-evidence claims, we view the evidence 15 in the light most favorable to the verdict, and we resolve all conflicts and indulge all 16 reasonable inferences in favor of that verdict. State v. Cunningham, 2000-NMSC- 17 009, ¶ 26, 128 N.M. 711 , 998 P.2d 176 . The evidence presented in this case 18 established that Defendant stuck a blanket down the child’s mouth–down to her [2] 1 tonsils. [RP 89] When Defendant was stuffing the blanket into the child’s mouth, she 2 could not breathe and it went down so far, she could not talk. [RP 89] Defendant also 3 had his hand in her mouth. [Id.] The child testified that Defendant’s actions lasted 4 for a minute, and that she was scared and hurting. [RP 88-89] The child’s sister also 5 testified that Defendant was angry when he put the blanket into the child’s mouth, and 6 the blanket was in her mouth for two minutes. [RP 92, 95] 7 At trial, Defendant argued that the State had failed to show evidence that the 8 child suffered trauma, injury, or had ongoing pain as a result of Defendant’s actions. 9 [DS 5-6] Therefore, Defendant argued, the actions could not amount to intentional 10 cruel punishment or torture. [DS 6] Defendant also argued that the State failed to 11 produce a medical or child abuse expert, and failed to produce evidence to corroborate 12 the victim’s story. [DS 7] As discussed in our calendar notice, based on our case law, 13 cruel punishment or torture occurs when one’s actions are without compassion or 14 kindness and result in unnecessary pain or cruelty to another. See State ex rel. Serna 15 v. Hodges, 89 N.M. 351, 354 , 552 P.2d 787, 790 (1976) (defining cruel under the 16 eighth amendment as punishment that inflicts “unnecessary pain or cruelty”), 17 overruled on other grounds by State v. Rondeau, 89 N.M. 408 , 553 P.2d 688 (1976); 18 State v. Buford, 65 N.M. 51, 52 , 331 P.2d 1110, 1111 (1958) (defining torture as acts [3] 1 causing unjustified physical pain and suffering); Territory v. Vialpando, 8 N.M. 211 , 2 218-19, 42 P. 64 , 65 (1895) (defining torture as pain, anguish of body or mind, agony, 3 torment); Territory v. Pridemore, 4 N.M. 275 , 280, 13 P. 96 , 97-98 (1887) (defining 4 cruel as giving pain to others in body or mind, torment, acts destitute of compassion 5 or kindness, hardhearted behavior). The evidence described above was sufficient to 6 support a finding that Defendant intentionally inflicted cruel punishment or torture on 7 the child. The evidence was sufficient to support the charge, and subsequent 8 conviction, in this case. 9 In his memorandum in opposition, Defendant argues that he stood in loco 10 parentis to the child, and therefore was allowed to use “moderate or reasonable 11 physical force” when disciplining the child. [MIO 6] Defendant does not provide 12 details as to how this specific argument was preserved in the district court. To 13 preserve an issue for appeal, Defendant must make a timely objection that specifically 14 apprises the trial court of the nature of the claimed error and invokes an intelligent 15 ruling thereon. State v. Varela, 1999-NMSC-045, ¶ 25 , 128 N.M. 454 , 993 P.2d 1280 . 16 In addition, we will not search the record to find whether an issue was preserved. See 17 State v. Rojo, 1999-NMSC-001, ¶ 44 , 126 N.M. 438 , 971 P.2d 829 . Because we do 18 not consider issues that were not properly preserved for appeal, we do not address [4] 1 Defendant’s claim. Moreover, even if the issue was properly preserved, we do not 2 agree that Defendant’s actions in pushing a blanket down the child’s throat, causing 3 her to be unable to breathe or talk, and causing her pain and fear, qualify as “moderate 4 or reasonable physical force.” 5 For the reasons discussed in this opinion and in our calendar notice, we affirm 6 Defendant’s conviction. 7 IT IS SO ORDERED. [8] 9 CYNTHIA A. FRY, Chief Judge 10 WE CONCUR: [11] 12 CELIA FOY CASTILLO, Judge [13] 14 RODERICK T. KENNEDY, Judge