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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. 30,819
5 DAVID LUKENS, JR.,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Kenneth H. Martinez, District Judge
9 Gary K. King, Attorney General
10 Margaret E. McLean, Assistant Attorney General
11 Joel Jacobsen, Assistant Attorney General
12 Santa Fe, NM
13 for Appellee
14 Trace L. Rabern
15 Santa Fe, NM
16 for Appellant
17 MEMORANDUM OPINION
18 GARCIA, Judge.
19 {1} Defendant appeals from a jury conviction of negligently caused child abuse
1 resulting in great bodily harm after his three-month-old son, Heath Lukens, was found
2 to have multiple healed fractures. The jury returned a split verdict, finding Defendant
3 guilty of causing only the fractures to Heath’s ribs. Defendant raises eight issues on
4 appeal, challenging the evidence admitted against him at trial, the propriety of the jury
5 instructions, and the proportionality of his punishment under the equal protection
6 clause of the New Mexico constitution.
7 BACKGROUND
8 {2} Heath was born nine weeks prematurely on August 14, 2005. When he was
9 born, Heath was unable to breathe on his own and was airlifted to a hospital in
10 Albuquerque, where he spent his first few days in an incubator. When it became clear
11 that Heath would have an extended stay at the hospital, Defendant and Heath’s mother
12 (Mother) moved from Farmington to Albuquerque. Defendant took a job as a car
13 salesman at an Albuquerque car dealership.
14 {3} After his birth, Defendant seemed unable to form a bond with Heath and
15 expressed little or no affection towards him. Mother believed that Defendant
16 sometimes handled Heath very roughly. She was worried that he did not know how
17 to properly care for an infant, and did not want Defendant to care for Heath all by
18 himself. Nonetheless, there were times when Defendant cared for Heath alone.
19 {4} Mother needed surgery in late November 2005. Defendant and Defendant’s
20 parents watched Heath while Mother recovered. When Mother was reunited with
2
1 Heath, she said that “[i]t was like I was handed a different baby back.” A few days
2 later, Mother sought medical attention for Heath. Subsequent x-rays revealed “a
3 pattern of injury that includes several fractures. Some were new and some were old.”
4 In total, Heath suffered fifteen fractures. Defendant was charged with causing these
5 injuries to Heath.
6 {5} Trial took place over a two week period of time. The main testimony at trial
7 concerned the competing expert testimony as to the cause and source of Heath’s
8 multiple healing fractures. Defendant acknowledged having used excessive force with
9 Heath at times, but argued that the fractures were a result of bone disease due to
10 Heath’s status as a premature baby. The State argued that the fractures were
11 intentionally or negligently caused by Defendant. The jury returned a split verdict,
12 finding Defendant guilty of causing the fractures to Heath’s ribs but not to his arms
13 or legs. Defendant timely filed an appeal with this Court.
14 {6} We note that in Defendant’s briefs to this Court, he refers to some portions of
15 the record proper, some general citations to the district court proceedings, and certain
16 specific citations to the proceedings below, but fails to provide the required citations
17 to the record. It is well established that this Court will not search the record to find
18 support for Defendant’s contentions. See State v. Rojo, 1999-NMSC-001, ¶ 44, 126
19 N.M. 438, 971 P.2d 829 (pointing out that an appellate court will not search the record
20 to find whether an issue was preserved); Ross v. City of Las Cruces, 2010-NMCA-
3
1 015, ¶ 18, 148 N.M. 81, 229 P.3d 1253 (“Where a party fails to cite any portion of the
2 record to support its factual allegations, the Court need not consider its argument on
3 appeal.”). The State’s answer brief provides more specific citations to the record, and
4 Defendant did not submit a reply brief or otherwise challenge these citations. Where
5 a defendant does not provide appropriate citations to the record but argues that the
6 State’s rendition of the facts is incorrect, we note that this Court indulges every
7 presumption in favor of the “correctness and regularity” of the district court’s decision
8 in favor of the prevailing party. Rojo, 1999-NMSC-001, ¶ 53 (internal quotation
9 marks and citation omitted).
10 DISCUSSION
11 A. Admissibility of Evidence
12 1. Standard of Review
13 {7} We review the district court’s admission or exclusion of evidence for an abuse
14 of discretion and we will not disturb its evidentiary ruling absent a clear abuse of that
15 discretion. State v. Stanley, 2001-NMSC-037, ¶ 5, 131 N.M. 368, 37 P.3d 85. “An
16 abuse of discretion occurs when the ruling is clearly against the logic and effect of the
17 facts and circumstances of the case. We cannot say the [district] court abused its
18 discretion by its ruling unless we can characterize it as clearly untenable or not
19 justified by reason.” Id. (internal quotation marks and citation omitted).
20 2. Expert Testimony
4
1 {8} Defendant argues that the district court improperly qualified Ms. Dentz, Dr.
2 Williamson, and Dr. Coleman as expert witnesses for the State because “there is no
3 scientific method involved in ‘diagnosing’ child abuse.” Defendant further argues that
4 the district court erred in allowing these witnesses to provide “ultimate” opinions
5 regarding the cause of injuries suffered by Heath. Rule 11-702 NMRA requires three
6 prerequisites for admission of expert testimony: (1) the expert must be qualified; (2)
7 the scientific evidence must assist the trier of fact; and (3) the expert may only testify
8 to “scientific, technical or other specialized knowledge.” State v. Alberico, 116 N.M.
9 156, 166, 861 P.2d 192, 202 (1993) (internal quotation marks and citation omitted).
10 {9} Defendant has summarily argued that it was error to qualify Ms. Dentz, Dr.
11 Williamson, and Dr. Coleman as expert witnesses because the areas of “child abuse,”
12 “child abuse pediatrics,” and “child abuse and neglect” are not valid areas of expertise.
13 Defendant has failed to elaborate or develop this argument regarding why the
14 qualifications and expertise of these witnesses were insufficient to assist the jury in
15 determining the causes of Heath’s injuries, or why it was improper for the district
16 court to qualify these witnesses as experts in the field of child abuse. This Court does
17 not review unclear or undeveloped arguments. See State v. Fuentes, 2010-NMCA-
18 027, ¶ 29, 147 N.M. 761, 228 P.3d 1181. As such, we will defer to the evidentiary
19 ruling of the district court and address this argument no further. State v. Woodward,
20 121 N.M. 1, 4, 908 P.2d 231, 234 (1995).
5
1 {10} Relying on Alberico, 116 N.M. at 176, 861 P.2d at 212, Defendant asserts that
2 all three expert witnesses offered a conclusion on the ultimate issue at trial, thereby
3 usurping the function of the jury. Defendant specifically objects to testimony that
4 Heath’s injuries were “diagnostic of child abuse;” “diagnosed as non-accidental
5 trauma;” “nearly certainly caused by child abuse;” and “not caused by accident.” We
6 note that Defendant has not provided this Court with any citations to the record for
7 these purported quotations. See Rule 12-213(A)(4) NMRA. However, even if we
8 assume all four quotations are accurate, Defendant’s argument has misconstrued
9 Alberico. See State v. Landgraf, 1996-NMCA-024, ¶ 20, 121 N.M. 445, 913 P.2d 252
10 (acknowledging that our Supreme Court’s holding in Alberico recognized “the
11 continuing validity of its prior decisions that expert testimony is admissible even if it
12 touches upon an ultimate issue to be decided by the trier of fact” (internal quotation
13 marks and citation omitted)).
14 {11} The Alberico Court held that an expert may not testify with regard to the
15 credibility of the complaining witness, may not give testimony on the identity of the
16 perpetrator, and may not provide testimony to show that symptoms or injuries were,
17 in fact, caused by abuse. Alberico, 116 N.M. at 175-77, 861 P.2d at 211-13.
18 However, the Court held that a qualified expert could testify that the symptoms
19 suffered by the alleged victim “are consistent with those suffered by someone who has
20 been sexually abused.” Id. at 178, 861 P.2d at 213-14. Thus, Alberico permits a
6
1 qualified expert to testify, based on experience, that the facts of the case are consistent
2 with a crime. See State v. Wilson, 2011-NMSC-001, ¶¶ 29-38, 149 N.M. 273, 248
3 P.3d 315 (holding that an expert’s opinion that the victim’s cause of death was
4 consistent with smothering was admissible), overruled on other grounds by State v.
5 Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110.
6 {12} The primary issue before the jury was whether Heath’s injuries were caused by
7 non-accidental trauma or by problems associated with his premature birth. During
8 trial, both parties presented expert testimony as to the cause of Heath’s injuries to
9 support their respective positions. In compliance with Alberico and other New
10 Mexico cases, none of the expert testimony at issue in this case was about Defendant’s
11 identity or credibility. While the experts gave their opinions regarding the cause of
12 the injuries to Heath and whether the injuries were consistent with abuse, no expert
13 testified that, in fact, the injuries were caused by abuse. See Wilson, 2011-NMSC-
14 001, ¶ 38 (“The jury remained the ultimate arbiter of [the expert witness’s] credibility,
15 and it was free to reject his opinion and conclude that [the victim’s] death was caused
16 by natural causes.”); Lee v. Martinez, 2004-NMSC-027, ¶ 16, 136 N.M. 166, 96 P.3d
17 291 (“Given the capabilities of jurors and the liberal thrust of the rules of evidence,
18 we believe any doubt regarding the admissibility of scientific evidence should be
19 resolved in favor of admission, rather than exclusion.”). This case hinged on the
20 jury’s credibility determinations. See State v. Schoonmaker, 2008-NMSC-010, 143
7
1 N.M. 373, ¶ 33, 176 P.3d 1105 (“When a case hinges all-but-entirely on whom to
2 believe, an expert’s interpretation of relevant physical evidence (or the lack of it) is
3 the sort of neutral, disinterested testimony that may well tip the scales and sway the
4 fact-finder.” (alteration, internal quotation marks, and citation omitted)); Landgraf,
5 1996-NMCA-024, ¶ 20 (noting that the jury is “free to disregard any or all” opinion
6 testimony). The jury was free to disregard the contrary evidence, and we therefore
7 decline to reweigh the evidence and substitute our judgment for that of the factfinder.
8 Rojo, 1999-NMSC-001, ¶ 19 (“Contrary evidence supporting acquittal does not
9 provide a basis for reversal because the jury is free to reject Defendant’s version of
10 the facts.”).
11 {13} Moreover, we note that the testimony of Dr. Williams and Dr. Coleman
12 followed the defense’s presentation of expert testimony opining that Heath’s injuries
13 were not due to abuse. See State v. Romero, 2006-NMCA-045, ¶ 16, 139 N.M. 386,
14 133 P.3d 842, aff’d, 2007-NMSC-013, 141 N.M. 403, 156 P.3d 694 (“If a party who
15 has objected to evidence of a certain fact himself produces evidence from his own
16 witness of the same fact, he has waived his objection.” (internal quotation marks and
17 citation omitted)). We therefore reject Defendant’s claim that the testimony of the
18 experts was in violation of our case law pertaining to expert opinions. The district
19 court did not abuse its discretion in admitting the testimony regarding the cause of the
20 injuries suffered by Heath from the State’s experts. As such, we are unpersuaded by
8
1 Defendant’s argument that it was error for the State to refer to testimony from these
2 witnesses during closing argument.
3 3. The Social Worker’s Notes
4 {14} Defendant argues that the district court erred in admitting a social worker’s
5 notes from a CFYD team meeting during the State’s cross-examination of Defendant.
6 In her notes, the social worker attributed certain statements to Defendant. On appeal,
7 Defendant challenges the admissibility of these notes on the basis of hearsay.
8 Defendant argues, again without citation to the record, that the notes were read to the
9 jury “even after defense counsel had alerted the prosecutor and [the district] court to
10 the hearsay nature of the statements in the notes[.]” See Aspen Landscaping, Inc., v.
11 Longford Homes of N.M., Inc., 2004-NMCA-063, ¶ 29, 135 N.M. 607, 92 P.3d 53
12 (“Failure to provide citations and challenge findings affect this Court’s ability to
13 decide the issues. Clearly, counsel for all litigants are more effective advocates when
14 they observe the Rules of Appellate Procedure.”). The record, however, does not
15 support Defendant’s assertions that he alerted the district court to the inadmissibility
16 of “double (or triple) hearsay statements” contained in the notes.
17 {15} “To preserve a question for review it must appear that a ruling or decision by
18 the district court was fairly invoked . . . .” Rule 12-216(A) NMRA. “In objecting to
19 evidence, it is the duty of counsel to advise the court specifically of the ground of
20 objection, so that it may rule intelligently. Even though testimony may have been
9
1 properly excluded on one ground, it is not error to admit testimony where no proper
2 or timely objection is asserted in the [district] court.” State v. Casteneda, 97 N.M.
3 670, 674, 642 P.2d 1129, 1133 (Ct. App. 1982) (citation omitted). Although
4 Defendant initially objected to the admissibility of the notes to the district court, his
5 objection was on the grounds of privilege. Moreover, Defendant later candidly
6 acknowledged to the district court that his objection was not supported by law, stating
7 “I believe my objection is not well taken.” Thus, the district court properly overruled
8 the objection on the grounds of privilege.
9 {16} The district court did not address the hearsay argument now raised by
10 Defendant on appeal. Defense counsel’s objection during Defendant’s cross-
11 examination did not raise, and thus, did not preserve the hearsay argument that
12 Defendant now argues. See Hill v. Burnworth, 85 N.M. 615, 616, 514 P.2d 1312, 1313
13 (Ct. App. 1973) (explaining that a matter complained of will be deemed unpreserved
14 when an objection is made without the specificity necessary to call the district court’s
15 attention to the matter). As such, we decline to address this unpreserved hearsay
16 argument on appeal. State v. Reyes, 2002-NMSC-024, ¶ 41, 132 N.M. 576, 52 P.3d
17 948 (declining to review the merits of the defendant’s argument on appeal because it
18 was not preserved), abrogated on other grounds by Allen v. LeMaster, 2012-NMSC-
19 001, 267 P.3d 806.
20 {17} We note that Defendant cites State v. McClaugherty, 2008-NMSC-044, 144
10
1 N.M. 483, 188 P.3d 1234, to summarily argue that the State used the notes improperly
2 and in bad faith to impeach Defendant’s testimony. This argument again
3 mischaracterizes the record. The State used the social worker’s notes to refresh
4 Defendant’s recollection when he stated that he did not remember the CYFD team
5 meeting. The McClaugherty Opinion is not relevant to this appeal because the notes
6 were not used to impeach Defendant’s testimony. The remainder of Defendant’s
7 argument is too general and vague for this Court’s consideration. See Muse v. Muse,
8 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104 (“We will not search the record
9 for facts, arguments, and rulings in order to support generalized arguments.”); In re
10 Estate of Heeter, 113 N.M. 691, 694, 831 P.2d 990, 993 (Ct. App. 1992) (“This
11 [C]ourt will not search the record to find evidence to support an appellant’s claims.”);
12 Phoenix, Inc. v. Galio, 100 N.M. 752, 754, 676 P.2d 829, 831 (Ct. App. 1984) (“[A]n
13 indirect and general attack is not sufficient for [this] [C]ourt’s consideration on
14 appeal.”).
15 4. Recorded Audio Statements of Defendant
16 {18} Defendant also appeals the district court’s decision to admit into evidence an
17 audio tape recording of statements made by Defendant to Mother. Defendant elected
18 not to include the recording in the record on appeal, but our review of the record
19 indicates that the recording apparently contained an acknowledgment of guilt made
20 by Defendant. Defendant argued that the tape was surreptitiously recorded and clearly
11
1 taped over. The district court explained that it was admitting the tape recording,
2 despite the issues “as to how the recordings were made and the fact that they are not
3 complete,” because these issues go “to the weight to be credited or given to those
4 recordings by the trial jury.”
5 {19} On appeal, Defendant’s bare assertions of impropriety fail to demonstrate how
6 the district court abused its discretion in concluding that “[its] not for the [district
7 c]ourt to assign value or weight to any particular evidence.” See Curtiss v. Aetna Life
8 Ins. Co., 90 N.M. 105, 107, 560 P.2d 169, 171 (Ct. App. 1976) (“We do not weigh the
9 evidence. It is the duty of the jury to weigh the evidence, determine the credibility of
10 the witness, the weight to be given to his testimony, and determine where the truth
11 lies.”). Defendant’s argument is particularly unpersuasive in light of his cross-
12 examination of Heath’s mother and his production of an expert witness to discredit the
13 value of the tape recordings. Most importantly, however, Defendant’s arguments
14 regarding the admissibility of the tape recording are undeveloped. Defendant never
15 states how his case was prejudiced by its admission, nor does he provide any
16 argument, citations to the record, or relevant authority to develop his contention that
17 the tape recording was inadmissible. “It is not our practice to rely on assertions of
18 counsel unaccompanied by support in the record. The mere assertions and arguments
19 of counsel are not evidence.” Muse, 2009-NMCA-003, ¶ 51. Defendant’s contentions
20 are unclear and do not constitute error without adequate development by Defendant.
12
1 See Benavidez v. Benavidez, 2006-NMCA-138, ¶ 23, 140 N.M. 637, 145 P.3d 117
2 (refusing to address challenges to a district court’s findings as unclear when the
3 challenges are not supported by relevant and specific reasons and do not explain why
4 the evidence relating to the finding is insufficient); Clayton v. Trotter, 110 N.M. 369,
5 373, 796 P.2d 262, 266 (Ct. App. 1990) (explaining that an appellate court need not
6 consider unclear arguments). As a result, we will not consider this issue any further.
7 B. Jury Instructions
8 {20} On appeal, Defendant raises three challenges to the jury instructions. First,
9 Defendant argues that the State presented evidence which supported a single theory
10 of intentional child abuse, and it was error for the jury to be instructed on a theory of
11 negligent child abuse. Second, Defendant argues that the jury instructions erroneously
12 included a “failure to act” standard to prove causation. Third, Defendant contends that
13 the instructions improperly imposed a civil negligence standard without any
14 accompanying proof of risk. Again, Defendant’s arguments contain no citations to the
15 record, present no basis for relief, and cite no on-point authority. Moreover,
16 Defendant acknowledges that two of his three claims were inadequately preserved for
17 appeal, yet Defendant does not attempt to establish fundamental error. As has been
18 stated by this Court many times, a failure to object at trial to jury instructions
19 constitutes a waiver of errors that might have been committed. State v. Roybal, 66
20 N.M. 416, 419, 349 P.2d 332, 334 (1960). Again, Defendant has not provided this
13
1 Court with any support for his bare assertions of error regarding the jury instructions.
2 As such, we will not undertake our own independent review of the evidence in an
3 attempt to discover error. See State v. Corneau, 109 N.M. 81, 91, 781 P.2d 1159,
4 1169 (Ct. App. 1989). On the arguments presented, we find no error and will not
5 address these claims further.
6 C. Equal Protection
7 {21} Although framed as an equal protection proportionality argument in his
8 briefing, Defendant presents no argument or authority on the constitutional issues
9 purportedly raised on appeal. Instead, Defendants’s equal protection argument is
10 nothing more than an attack on the criminal negligence standard used to convict
11 Defendant. “When a criminal conviction is being challenged, counsel should properly
12 present this [C]ourt with the issues, arguments, and proper authority.” State v.
13 Clifford, 117 N.M. 508, 513, 873 P.2d 254, 259 (1994). Again, Defendant’s argument
14 is too vague for this Court to address on appeal. Benavidez, 2006-NMCA-138, ¶ 23.
15 CONCLUSION
16 {22} For the foregoing reasons, we affirm Defendant’s child abuse conviction.
17 {23} IT IS SO ORDERED.
18 ___________________________________
19 TIMOTHY L. GARCIA, Judge
14
1 WE CONCUR:
2 _________________________________
3 JAMES J. WECHSLER, Judge
4 _________________________________
5 MICHAEL D. BUSTAMANTE, Judge
15