Certiorari Denied, No. 31,825, July 30, 2009
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2009-NMCA-099
Filing Date: June 30, 2009
Docket No. 27,812
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JONATHAN DIGGS and
REBECCA MILLER,
Defendants-Appellants.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Ross C. Sanchez, District Judge
Gary K. King, Attorney General
Ann M. Harvey, Assistant Attorney General
Santa Fe, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Karl Erich Martell, Assistant Appellate Defender
Santa Fe, NM
for Appellants
OPINION
WECHSLER, Judge.
{1} Defendants Jonathan Diggs and Rebecca Miller appeal in advance of their trial from
the district court’s denial of their motions to dismiss on double jeopardy grounds. We
consider whether the New Mexico Constitution and double jeopardy statute prohibit the
State from prosecuting Defendants for child abuse because the Children, Youth and Families
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Department (CYFD) previously investigated Defendants for child abuse and the Acoma
Pueblo tribal court previously held a custody hearing on the same issues. We hold that there
was no double jeopardy violation and affirm.
BACKGROUND
{2} Defendants’ child was treated at Presbyterian Hospital for bruises and broken bones
in different stages of healing, including rib fractures, clavicle fracture, radius fracture,
humerus fracture, and femur fracture over the course of several months. As a result of these
injuries, CYFD representatives contacted Defendants and informed them that they could
avoid placing the child in foster care if they agreed to give the child’s paternal grandparents
guardianship. Defendants agreed to temporary guardianship. CYFD found the allegations
of child abuse to be unsubstantiated. However, the child was not returned to Defendants
because the child’s paternal grandmother, a member of Acoma Pueblo, sought permanent
guardianship in the Acoma Pueblo tribal court. The tribal court ultimately returned the child
to Defendants.
{3} Several months later, the State charged Defendants with five counts of child abuse.
Defendants filed motions to dismiss on double jeopardy grounds. The district court denied
Defendants’ motions to dismiss and then approved the certification of the issue for appellate
review. Defendants filed for immediate appeal pursuant to State v. Apodaca, 1997-NMCA-
051, ¶ 17, 123 N.M. 372, 940 P.2d 478.
PRE-TRIAL APPEAL
{4} We first address the State’s concern that Defendants have no right to a pre-trial
appeal. The State argues that Defendants’ pre-trial appeal is inappropriate under Apodaca
because, unlike the defendant in Apodaca, Defendants in this case have not yet gone through
a criminal trial. See id. ¶¶ 16-17. Apodaca held that a defendant may directly appeal to this
Court a denial of the defendant’s motion to dismiss charges based on double jeopardy
grounds. Id. ¶ 17. In its explanation, Apodaca stated that certain interests override the
unwanted result of “piecemeal appeals” and “justify invocation of the constitutional right to
appeal when final judgment has not yet been entered[, but s]uch interests must be of the
greatest importance.” Id. ¶ 16. Apodaca further explained that “a defendant’s right not to
be subjected to a second trial for the same offense could not be remedied once the second
trial has taken place.” Id. The State argues that Defendants do not need protection against
being subjected to a second trial for the same offense because they “have not been subjected
to trial on the child abuse offenses.”
{5} The State’s argument is circular in its rationale because it assumes the conclusion
that is the very issue underlying the double jeopardy claim in this appeal—that Defendants
have not previously been placed in jeopardy. If we were to deny Defendants the ability to
file a pre-trial appeal on double jeopardy grounds because Defendants may not succeed in
the claim, we would undermine the holding in Apodaca. Therefore, although we ultimately
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hold Defendants’ double jeopardy rights are not violated, we will not disallow Defendants
from making the argument. Further, because even civil actions that are punitive in nature
can trigger double jeopardy violations, we will not prohibit Defendants from making their
double jeopardy argument under Apodaca, even absent a prior criminal trial. See, e.g., State
v. Nuñez, 2000-NMSC-013, ¶ 4, 129 N.M. 63, 2 P.3d 264 (filed 1999) (recognizing a double
jeopardy violation based on a civil vehicle forfeiture).
DOUBLE JEOPARDY
{6} The New Mexico Constitution’s double jeopardy clause states that “[n]o person shall
. . . be twice put in jeopardy for the same offense.” N.M. Const. art. II, § 15. Our double
jeopardy statute similarly states that “[n]o person shall be twice put in jeopardy for the same
crime.” NMSA 1978, § 30-1-10 (1963). Our Supreme Court provided the basic framework
for a double jeopardy analysis in State ex rel. Schwartz v. Kennedy, 120 N.M. 619, 626, 904
P.2d 1044, 1051 (1995): “(1) whether the [s]tate subjected the defendant to separate
proceedings; (2) whether the conduct precipitating the separate proceedings consisted of one
offense or two offenses; and (3) whether the penalties in each of the proceedings may be
considered ‘punishment’ for the purposes of the Double Jeopardy Clause.”
{7} The Court later modified the third Schwartz requirement in City of Albuquerque v.
One (1) 1984 White Chevy, 2002-NMSC-014, 132 N.M. 187, 46 P.3d 94. To determine
whether a sanction is remedial or punitive, White Chevy requires a reviewing court to
evaluate the Legislature’s “purpose in enacting the legislation, rather than evaluating the
effect of the sanction on the defendant. Then the court must determine whether the sanction
. . . was sufficiently punitive in its effect that, on balance, the punitive effects outweigh the
remedial effect.” Id. ¶ 11 (internal quotation marks and citation omitted); see State v. Kirby,
2003-NMCA-074, ¶¶ 19, 22, 133 N.M. 782, 70 P.3d 772 (utilizing the Schwartz test and the
White Chevy modification in a double jeopardy analysis regarding securities violations).
{8} Relying on Nuñez, Schwartz, and White Chevy, Defendants argue that the State
prosecuting Defendants for child abuse would be a violation of their double jeopardy
protections because the sanction imposed by CYFD and the tribal court—removal of Child
from Defendants for fourteen months during the CYFD investigation and the tribal court
proceedings—was more punitive than remedial, and, thus, Defendants “are now being put
in jeopardy a second time for the same acts.” We review double jeopardy issues de novo.
State v. Saiz, 2008-NMSC-048, ¶ 22, 144 N.M. 663, 191 P.3d 521.
{9} Our Supreme Court in Schwartz held that there was no double jeopardy violation
because the civil sanction imposed on the defendant was more remedial than punitive. See
Schwartz, 120 N.M. at 635, 904 P.2d at 1060. The defendant in Schwartz was subject to an
administrative revocation of his driver’s license, followed by prosecution for driving while
intoxicated. 120 N.M. at 622-23, 904 P.2d at 1047-48. The Court held that the
administrative proceeding and the criminal prosecution were two separate proceedings and
were predicated on the same offense. Id. at 626-28, 904 P.2d at 1051-53. The Court’s
analysis therefore rested on whether the sanction was more remedial or punitive. The Court
stated that a sanction that serves a remedial purpose, even if it also serves a retributive or
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deterrent one, is not to be considered punishment for double jeopardy purposes. Id. at 633-
34, 904 P.2d at 1058-59. The Court therefore found that the purpose behind the Implied
Consent Act, 1978 NMSA, §§ 66-8-105 to -112 (1978, as amended through 2007), to enforce
regulatory compliance and protect the public, was remedial and not punitive, regardless of
the deterrent effect on the defendant. Schwartz, 120 N.M. at 635, 904 P.2d at 1060.
{10} In White Chevy, the Court again held that there was no double jeopardy violation
because the civil sanction was more remedial than punitive. See White Chevy, 2002-NMSC-
014, ¶ 2. In that case, the defendants were convicted on criminal driving while intoxicated
charges, followed by civil forfeiture actions under a city ordinance. Id. ¶ 4. The Court held
that the purpose of the ordinance at issue was to “protect the health and safety of the citizens
. . . by abating motor vehicle nuisances.” Id. ¶ 6. Because the ordinance was aimed at
protecting the public, not punishing a defendant, the Court held that the sanction was
remedial and, therefore, there was no double jeopardy violation. Id. ¶¶ 18-19. The Court
reiterated that “[a]lthough a civil penalty may cause a degree of punishment for the
defendant, such a subjective effect cannot override the legislation’s primarily remedial
purpose.” Id. ¶ 11.
{11} Conversely, in Nuñez, the Court held that there was a double jeopardy violation after
determining that a vehicle forfeiture under the Controlled Substances Act, NMSA 1978, §§
30-31-1 to -41 (1972, as amended through 2008), was punitive in nature and, thus, combined
with the first two Schwartz requirements, established a double jeopardy violation. Nuñez,
2000-NMSC-013, ¶¶ 55, 59, 94. The Supreme Court explained that, unlike Schwartz, the
applicable statutes in Nuñez, concerning possession of drugs, “do not concern a regulated
lawful activity, but rather an illegal criminal activity.” Id. ¶ 52. The Court thus concluded
that forfeitures under the Controlled Substances Act were not designed to be and could never
be remedial, but, instead, “their purposes and intentions are primarily punitive.” Id.
{12} In the present case, Defendants were subject to CYFD and tribal court proceedings
regarding custody of the child, followed by the State prosecuting for criminal child abuse.
We need not address the first and second Schwartz requirements because the third is
dispositive in this case: whether the alleged penalty, Defendants’ separation from the child
during the CYFD and tribal court proceedings, would be deemed remedial or punitive upon
evaluation of the Children’s Code’s purpose and effect. See White Chevy, 2002-NMSC-014,
¶ 11; Schwartz, 120 N.M. at 626, 904 P.2d at 1051.
{13} We begin by evaluating the Legislature’s purpose as enumerated in the Children’s
Code.
A. first to provide for the care, protection and wholesome mental
and physical development of children coming within the provisions of the
Children’s Code and then to preserve the unity of the family whenever
possible. The child’s health and safety shall be the paramount concern.
Permanent separation of the child from the family, however, would
especially be considered when the child or another child of the parent has
suffered permanent or severe injury or repeated abuse. It is the intent of the
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[L]egislature that, to the maximum extent possible, children in New Mexico
shall be reared as members of a family unit;
B. to provide judicial and other procedures through which the
provisions of the Children’s Code are executed and enforced and in which
the parties are assured a fair hearing and their constitutional and other legal
rights are recognized and enforced;
C. to provide a continuum of services for children and their
families, from prevention to treatment, considering whenever possible
prevention, diversion and early intervention, particularly in the schools;
D. to provide children with services that are sensitive to their
cultural needs;
E. to provide for the cooperation and coordination of the civil
and criminal systems for investigation, intervention and disposition of cases,
to minimize interagency conflicts and to enhance the coordinated response
of all agencies to achieve the best interests of the child victim; and
F. to provide continuity for children and families appearing
before the children’s court by assuring that, whenever possible, a single
judge hears all successive cases or proceedings involving a child or family.
NMSA 1978, § 32A-1-3 (1999) (amended 2009); 2009 N.M. Laws, ch. 239. The Legislature
sought to provide for the care, protection, and development of children and to ensure that
procedures were in place to effectuate that goal. See id. The Legislature couched each
aspect of the purpose in terms of benefits to and protection of children. In short, the
Legislature clearly established that the purpose of the Children’s Code is to ensure that the
best interests of children are met. See In re Christobal V., 2002-NMCA-077, ¶ 15, 132 N.M.
474, 50 P.3d 569 (recognizing that “the legislative purpose of the Children’s Code is to
provide judicial and other procedures through which the provisions of the Children’s Code
are executed and enforced and in which the parties are assured a fair hearing and their
constitutional and other legal rights are recognized and enforced” (internal quotation marks
and citation omitted)); In re Jade G., 2001-NMCA-058, ¶ 19, 130 N.M. 687, 30 P.3d 376
(stating that the purpose section “is an instruction to interpret the [Children’s] Code to
provide procedures for fair hearings and enforcement of rights”). Nowhere in Section 32A-
1-3 does it mention punishment against the parents or guardians.
{14} We next consider whether, under the White Chevy test, “the sanction established by
the legislation was sufficiently punitive in its effect that, on balance, the punitive effects
outweigh the remedial effect.” 2002-NMSC-014, ¶ 11. Defendants claim that their
separation from the child for the fourteen months during which the CYFD and tribal court
proceedings occurred constituted a sanction in which the punitive effect outweighed any
remedial effect. Defendants were indeed separated from the child; however, the separation
occurred because Defendant Miller, the primary caretaker at the time, agreed to temporary
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guardianship based on the child’s injuries documented at the hospital.
{15} Further, unlike the Controlled Substances Act in Nuñez, the Children’s Code
contemplates regulated lawful activity. See Nuñez, 2000-NMSC-013, ¶ 52. The Children’s
Code does not address sanctions at all, but instead seeks to protect the best interest of
children, more akin to the purpose of protecting the public as stated in Schwartz and White
Chevy. See § 32A-1-3. As discussed, the Legislature intended for the Children’s Code “to
provide for the care, protection and wholesome mental and physical development of children
coming within the provisions of the Children’s Code and then to preserve the unity of the
family whenever possible. The child’s health and safety shall be the paramount concern.”
Section 32A-1-3(A). While the Legislature made clear its intention that the unity of the
family be preserved when possible, it also made clear that the child’s “health and safety [is]
the paramount concern.” Id.
{16} In this case, CYFD initiated its investigation because of the child’s injuries and
recommendations from hospital personnel. The CYFD proceedings furthered the
Legislature’s purpose of providing for the care and protection of the child and ensured that
the child’s health and safety were the paramount concern. Nothing in the record indicates
that the CYFD investigation or the ensuing temporary guardianship were triggered out of a
desire or intent to punish Defendants. Moreover, although the tribal court held a hearing on
the paternal grandmother’s motion for permanent guardianship that resulted in longer
separation of Defendants from the child, as discussed, Defendant Miller agreed to the
temporary guardianship and, ultimately, regained custody of the child. We decline to hold
that Defendants were punished by the occurrence of the CYFD and tribal court proceedings.
{17} Finally, Defendants argue that, pursuant to Ashe v. Swenson, 397 U.S. 436, 443
(1970), their prosecutions violate the collateral estoppel aspect of double jeopardy because
“both CYFD and [the tribal court] found the abuse allegations to be unsubstantiated,” CYFD
and the State worked together on the CYFD investigation, and, therefore, the prosecution for
child abuse cannot be litigated between these same parties. Ashe held that “when an issue
of ultimate fact has once been determined by a valid and final judgment, that issue cannot
again be litigated between the same parties in any future lawsuit.” Id. Defendants have not
referenced a final judgment that determined an issue of ultimate fact in the criminal
prosecutions. Without any record to support Defendants’ argument, we will not review their
claim. State v. Jim, 107 N.M. 779, 780, 765 P.2d 195, 196 (Ct. App. 1988) (“It is [the]
defendant’s burden to bring up a record sufficient for review of the issues he raises on
appeal.”). As such, Defendants have failed to establish double jeopardy based upon the
theory of collateral estoppel.
CONCLUSION
{18} We affirm the district court’s denial of Defendants’ motions to dismiss on double
jeopardy grounds.
{19} IT IS SO ORDERED.
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____________________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
_________________________________
JONATHAN B. SUTIN, Judge
_________________________________
TIMOTHY L. GARCIA, Judge
Topic Index for State v. Diggs, No. 27,812
CD CHILDREN
CD-CC Children’s Code
CL CRIMINAL LAW
CL-CN Child Abuse and Neglect
CT CONSTITUTIONAL LAW
CT-DJ Double Jeopardy
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