State v. Vasquez

Certiorari Denied, April 16, 2010, No. 32,281

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMCA-041

Filing Date: March 2, 2010

Docket No. 27,304

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

CECILIA VASQUEZ,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Silvia E. Cano-Garcia, District Judge and V. Lee Vesley, Pro-Tem Judge

Gary K. King, Attorney General
Andrea Sassa, Assistant Attorney General
Santa Fe, NM

for Appellee

Hugh W. Dangler, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION

FRY, Chief Judge.

{1} Defendant was convicted of negligently permitting child abuse resulting in death or
great bodily harm, contrary to NMSA 1978, Section 30-6-1(D) (2004) (amended 2005 and
2009), and tampering with evidence, contrary to NMSA 1978, Section 30-22-5 (2003).
Defendant appeals her convictions. We conclude that: (1) the jury instruction on negligent
child abuse properly incorporated the standard for criminal rather than civil negligence, (2)

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there was substantial evidence of the requisite mens rea supporting Defendant’s conviction
for negligent child abuse, (3) the trial court properly denied Defendant’s motion to suppress
statements she made to police, (4) the trial court did not abuse its discretion in denying
Defendant’s motions for change of venue, and (5) the trial court acted within its discretion
in sentencing Defendant. We therefore affirm.

BACKGROUND

{2} Defendant’s convictions stem from the death of her son following physical abuse by
the boy’s father. We state the facts necessary for an understanding of Defendant’s
convictions in the light most favorable to the verdict. In our factual recitations throughout
this opinion, we have relied on our review of the record below in addition to those facts set
out in the parties’ briefs that remained unchallenged. We relate additional facts as necessary
in our discussion.

{3} Defendant had two children with her boyfriend, Freddie Ordoñez—a fifteen-month-
old son, Uriah, and a two-year-old daughter. Defendant worked, while Ordoñez cared for
their two children. On Tuesday, July 27, 2004, Ordoñez called Defendant while she was at
work and told her to come home because something was wrong with Uriah. When
Defendant arrived at home, Ordoñez admitted to her that he had become frustrated with
Uriah, picked him up by his ears, thrown him into the bathtub, and then picked him up by
his neck. Defendant later informed police that Uriah had bruises on his ears, a possible
bump on his head, a red mark on his neck, a scrape on his leg, was scared and clingy, seemed
weak, was vomiting, had glossy eyes, and had what Defendant described as episodes of
twitching over the next two days.

{4} Defendant stayed home with Uriah on Wednesday, July 28, to watch over him. In
describing Uriah’s symptoms on Wednesday, Defendant stated that Uriah was vomiting and
slept most of the day, that Uriah fell and had a seizure on Wednesday afternoon, and that
Uriah continued to have episodes of twitching throughout the night. The next morning,
Thursday, July 29, Defendant returned to work and left Uriah in Ordoñez’s care. Ordoñez
called Defendant while she was at work to tell her that Uriah was twitching. Defendant
informed Ordoñez that Uriah had been twitching all night and instructed Ordoñez to feed
Uriah a can of soup. Ordoñez then called a second time and told Defendant to hurry and
come home. Defendant stated that when she arrived home, Ordoñez was holding Uriah and
that Uriah’s body was limp in his arms. Ordoñez placed Uriah on the couch and began
performing cardiopulmonary resuscitation. There was conflicting evidence as to whether
Uriah was still alive when Defendant returned home or whether Uriah was already dead.
Defendant testified that she wanted to call emergency personnel to assist Uriah but that
Ordoñez would not allow it.

{5} Shortly thereafter, Ordoñez and Defendant left their home. When they returned,
Defendant fell asleep with her daughter. When Defendant awoke on Friday morning, July
30, 2004, she was unable to locate Ordoñez or her son’s body. After a series of events not
relevant to our analysis, Defendant contacted police in the early morning hours of Saturday,
July 31, 2004, to gain assistance in locating her son. Defendant’s initial statements to police

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did not clearly communicate that Uriah had died but only that Ordoñez had taken Uriah and
that Defendant suspected Uriah may be dead. During the course of her approximately
twenty-one hours at the police station assisting law enforcement with their investigation,
Defendant informed police that her son had died sometime Thursday. Through the
investigation, it also came to light that Ordoñez had taken Uriah’s body into the desert
sometime late Thursday night or early Friday morning and had burned Uriah’s remains.

{6} In her statements to police, Defendant indicated that the events occurring in the
preceding days were not the first time Ordoñez had abused Uriah. Specifically, Defendant
informed police that Ordoñez had previously abused Uriah in November 2003, that Uriah
had marks on his neck and back from where Ordoñez had hit him, and that Defendant had
taken Uriah to his paternal grandmother’s until Ordoñez had cooled down. Defendant also
stated that when Ordoñez would get mad at Uriah, he would “just pick [Uriah] up and he’d
throw him in his crib” and that Ordoñez would yell at Uriah and tell him to shut up if he was
crying too much. Defendant also informed police that Ordoñez was physically abusive
toward her on a regular basis.

{7} Defendant was indicted on one count of negligently permitting child abuse resulting
in death, one count of negligently permitting child abuse not resulting in death or great
bodily harm, one count of tampering with evidence, and one count of conspiracy to commit
tampering with evidence. The State filed a statement of joinder requesting that Defendant
and Ordoñez be tried together. The joint trial against Defendant and Ordoñez commenced
in February 2006. Following testimony by the first witness, defense counsel moved to sever
Defendant’s case, the motion to sever was granted, and the trial court declared a mistrial.
Defendant was tried separately.

{8} At Defendant’s trial, Defendant moved for a directed verdict following the close of
the State’s case. The State agreed to dismiss the charge of negligently permitting child abuse
not resulting in death or great bodily harm. The remaining three charges were submitted to
the jury. The jury convicted Defendant of negligently permitting child abuse resulting in
death or great bodily harm and tampering with evidence. The jury found Defendant not
guilty of conspiracy to commit tampering with evidence. The trial court sentenced
Defendant to eighteen years’ imprisonment on the child abuse charge and three years’
imprisonment on the conviction for tampering with evidence. The trial court ordered the
sentences to run concurrently.

DISCUSSION

{9} Defendant raises five issues on appeal: (1) her conviction for negligent child abuse
should be overturned because the jury was instructed to apply a civil negligence rather than
a criminal negligence standard, (2) there was insufficient evidence that she possessed the
requisite mens rea for negligently permitting child abuse resulting in death or great bodily
harm, (3) the trial court erred in refusing to suppress Defendant’s multiple statements to
police, (4) the trial court erred in refusing to grant Defendant’s multiple motions for a change
of venue, and (5) the trial court abused its discretion in refusing to mitigate her sentence
based on battered-spouse syndrome. We address each issue below.

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Jury Instruction

{10} We begin by addressing Defendant’s challenge to the uniform jury instruction on
negligent child abuse. Defendant contends that the uniform jury instruction given in this
case, UJI 14-603 NMRA, erroneously allowed the jury to find her guilty of negligent child
abuse based on a civil negligence standard. Specifically, Defendant contends that the
language in the jury instruction permitting a conviction if Defendant knew or should have
known her actions or failure to act created a substantial and foreseeable risk is consistent
with a civil negligence and not a criminal negligence standard. See id. Defendant raises this
issue for the first time on appeal. We therefore review Defendant’s claim for fundamental
error. State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (stating that
“[t]he standard of review we apply to jury instructions depends on whether the issue has
been preserved[,]” and, if the error was not preserved, “we review for fundamental error”).

{11} Defendant is correct in asserting that her conviction must be based on criminal
negligence, not merely civil negligence. Our Supreme Court determined in Santillanes v.
State, 115 N.M. 215, 849 P.2d 358 (1993), that a conviction for negligent child abuse
pursuant to Section 30-6-1(D) must be based on a criminal negligence standard rather than
a civil negligence standard in order to satisfy due process. Santillanes, 115 N.M. at 221-22,
849 P.2d at 364-65 (“We interpret the mens rea element of negligence in the child abuse
statute . . . to require a showing of criminal negligence instead of ordinary civil
negligence.”). The Santillanes Court held that to satisfy a criminal negligence standard there
must be “proof that the defendant knew or should have known of the danger involved and
acted with a reckless disregard for the safety or health of the child.” Id. at 222, 849 P.2d at
365. Our uniform jury instruction, UJI 14-603, reflects that holding. See id., Use Notes and
Compiler’s Annotations.

{12} In State v. Schoonmaker, 2008-NMSC-010, 143 N.M. 373, 176 P.3d 1105, our
Supreme Court considered whether UJI 14-602 is consistent with the Court’s decision in
Santillanes and embodies a criminal negligence standard or whether the instruction still
permits a conviction pursuant to a civil negligence standard. In Schoonmaker, a defendant
who was charged with negligent child abuse challenged the uniform jury instruction. 2008-
NMSC-010 ¶ 42. The defendant argued that the inclusion of “should have known” in the
instruction impermissibly permitted a conviction based on a civil negligence standard
because criminal negligence in New Mexico requires subjective knowledge of the risk of
harm. Id. (internal quotation marks omitted). Our Supreme Court disagreed with the
defendant in Schoonmaker, stating that “[w]hat distinguishes civil negligence from criminal
negligence is not whether the person is subjectively aware of a risk of harm; rather, it is the
magnitude of the risk itself.” Id. ¶ 43. The Supreme Court further noted that this
interpretation was consistent with the Model Penal Code’s definition of criminal negligence,
which provides:

A person acts negligently with respect to a material element of an offense
when he should be aware of a substantial and unjustifiable risk that the
material element exists or will result from his conduct. The risk must be of
such a nature and degree that the actor’s failure to perceive it, considering the

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 nature and purpose of his [or her] conduct and the circumstances known to
him [or her], involves a gross deviation from the standard of care that a
reasonable person would observe in the actor’s situation.

Id. (quoting Model Penal Code § 2.02[(2)(d)] (Official Draft and Revised Comments 1962)
(emphasis omitted) (internal quotation marks omitted)).

{13} Defendant advances no argument distinguishable from those made in Schoonmaker
but merely relies on the inclusion of the “should have known” language to argue that the
instruction permits conviction based on civil negligence. Because this issue has already
been directly addressed by our Supreme Court, which upheld the use of UJI 14-602, we are
bound by Schoonmaker. See McNeill v. Burlington Res. Oil & Gas Co., 2007-NMCA-024,
¶ 19, 141 N.M. 212, 153 P.3d 46 (filed 2006) (“[T]he Court of Appeals may consider error
in the Uniform Jury Instructions, except that it may not overrule ‘those instructions that have
been considered by [the Supreme Court] in actual cases and controversies that are controlling
precedent.’” (second alteration in original) (internal quotation marks and citation omitted)),
aff’d, 2008-NMSC-022, 143 N.M. 740, 182 P.3d 121. Accordingly, we affirm the trial
court’s use of the uniform jury instruction in this case.

Substantial Evidence

{14} Defendant contends that there was insufficient evidence to establish that she
possessed the required mens rea to support her conviction for negligently permitting child
abuse resulting in death or great bodily injury pursuant to the jury instruction discussed
above. Defendant does not challenge the sufficiency of the evidence supporting her
conviction for tampering with evidence.

{15} “In reviewing the sufficiency of the evidence, we must view the evidence in the light
most favorable to the guilty verdict, indulging all reasonable inferences and resolving all
conflicts in the evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-009,
¶ 26, 128 N.M. 711, 998 P.2d 176.

Substantial evidence review requires analysis of whether direct or
circumstantial substantial evidence exists and supports a verdict of guilt
beyond a reasonable doubt with respect to every element essential for
conviction. We determine whether a rational factfinder could have found
that each element of the crime was established beyond a reasonable doubt.

State v. Kent, 2006-NMCA-134, ¶ 10, 140 N.M. 606, 145 P.3d 86 (citations omitted). We
derive the elements of the crime from the jury instructions. See State v. Smith, 104 N.M.
729, 730, 726 P.2d 883, 884 (Ct. App. 1986) (“Jury instructions become the law of the case
against which the sufficiency of the evidence is to be measured.”).

{16} In the present case, the jury was instructed that to find Defendant guilty of
negligently permitting child abuse resulting in death or great bodily harm, it was required
to find:

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 1. [Defendant] permitted Uriah . . . to be placed in a situation
which endangered the life or health of Uriah . . .;

2. [D]efendant acted with reckless disregard. To find that
[Defendant] acted with reckless disregard, you must find that [Defendant]
knew or should have known [D]efendant’s actions or failure to act created a
substantial and foreseeable risk, [D]efendant disregarded that risk and
[D]efendant was wholly indifferent to the consequences of the failure to act
. . . and to the welfare and safety of Uriah . . .[;]

3. [Defendant] was a parent, guardian or custodian of the child,
or [D]efendant had accepted responsibility for the child’s welfare;

4. [Defendant’s] actions or failure to act resulted in the death of
Uriah . . .;

5. Uriah . . . was under the age of 18;

6. This happened in New Mexico on or between July 27, 2004[,]
and July 29, 2004.

Defendant contends that there was insufficient evidence to support the jury’s determination
that she acted with reckless disregard as required by the second paragraph of the instruction.

{17} In State v. Chavez, 2009-NMSC-035, 146 N.M. 434, 211 P.3d 891, our Supreme
Court identified several factors that may be considered in determining whether an accused’s
conduct created a substantial and foreseeable risk to a child. Chavez identifies those factors
as “the gravity of the threatened harm,” whether the defendant’s “underlying conduct
violates a separate criminal statute,” and “the likelihood that harm will occur.” Id. ¶¶ 23, 25-
26. The determinative factor, however, is the gravity of the risk, because “[i]t is the gravity
of the risk that serves to place an individual on notice that his [or her] conduct is perilous,
and potentially criminal, thereby satisfying due process concerns.” Id. ¶ 23 (citing
Schoonmaker, 2008-NMSC-010, ¶ 43) (“What distinguishes civil negligence from criminal
negligence is . . . the magnitude of the risk itself.” (emphasis omitted) (internal quotation
marks omitted)).

{18} Although the State does not clearly distinguish the various theories of its case against
Defendant, we can discern two theories from the evidence presented: (1) that Defendant
failed to procure medical care for Uriah and (2) that Defendant negligently entrusted
Ordoñez with Uriah’s care and thus permitted Uriah to be abused. With respect to the
second theory, the State, based on the evidence at trial, appears to have presented two
alternative arguments: (1) that Defendant should have known of the risk of Uriah dying or
suffering great bodily harm based on the incidents occurring prior to the July 27 injuries or
(2) that once Defendant was aware of the injury on July 27, she was negligent in leaving
child in Ordoñez’s care on July 29. Because we conclude that there was sufficient evidence
to support the jury’s verdict based on the theory that Defendant negligently entrusted

6
Ordoñez with Uriah’s care after July 27, we do not review the sufficiency of the evidence
supporting the State’s argument that Defendant was guilty of negligent endangerment based
on her failure to procure medical care for Uriah. See State v. Olguin, 120 N.M. 740, 740-41,
906 P.2d 731, 731-32 (1995) (holding that due process does not require a general verdict of
guilt to be set aside so long as one of the alternative bases for conviction is supported by
sufficient evidence and the other bases are not legally inadequate).

{19} Although this Court has previously considered whether a parent should be held
criminally liable for permitting abuse of his or her child, those cases were decided under the
civil negligence standard employed prior to our Supreme Court’s decision in Santillanes.
See State v. Williams, 100 N.M. 322, 324, 670 P.2d 122, 124 (Ct. App. 1983) (upholding a
mother’s conviction for child abuse based on her failure to protect her child from abuse by
the mother’s husband because “[s]he lived in the same household with her husband and
child, knew of her husband’s violent nature, and his use of drugs”), overruled by Santillanes,
115 N.M. at 218-19, 225, 849 P.2d at 361-62, 368; State v. Adams, 89 N.M. 737, 738, 557
P.2d 586, 587 (Ct. App. 1976) (upholding a father’s conviction for child abuse based on his
failure to protect his child from the mother’s abuse because the father knew of the abuse, and
although he was frequently away from home in his occupation as a truck driver, was present
for the child’s first hospitalization in which the child was diagnosed with severe dehydration,
a broken humerus, a broken radius, possible rib fractures, and a previously broken nose),
overruled by Santillanes, 115 N.M. at 218-19, 225, 849 P.2d at 361-62, 368. In the present
case, we consider whether Defendant’s act of leaving Uriah with Ordoñez rose to the level
of criminal negligence.

{20} The State presented evidence that on July 27, Defendant left work early and returned
home at Ordoñez’s request, that Ordoñez told Defendant he had picked Uriah up by his ears
and threw him in the bathtub, and that Defendant saw physical symptoms suggesting that
Ordoñez’s actions had caused serious injury to Uriah. These symptoms included bruises on
Uriah’s ears, marks on his neck and leg, vomiting, weakness, glossy eyes, and episodes of
twitching. Defendant stayed home with Uriah on July 28, but on July 29 Defendant
returned to work, leaving Uriah in Ordoñez’s care. There was evidence presented that
Ordoñez called Defendant at work twice that day, the second time urgently insisting that she
come home. Defendant returned home to find Ordoñez holding Uriah’s limp body in his
arms.

{21} From this evidence, a reasonable jury could have concluded that Defendant was
aware of the abuse Uriah suffered on July 27, that she left Uriah in Ordoñez’s care on July
29, and that she knew or should have known that doing so created a substantial and
foreseeable risk of death or great bodily injury to Uriah. Further, there was sufficient
evidence to conclude that Defendant’s leaving Uriah in Ordoñez’s care on July 29 resulted
in Uriah’s death. Defendant’s medical expert, Dr. Brian Fist, testified that the lack of blood
stain on the recovered skull fragments indicated that the injury to Uriah that resulted in his
death occurred on July 29. Dr. Fist testified that if Uriah had suffered a traumatic head
injury on July 27, the brain would have bled until his death on July 29, causing the skull
fragments to exhibit signs of blood stain. Although Ordoñez testified that the abuse on July
27 never occurred and that the incident on July 29 was an accident, the jury was free to reject

7
his testimony. See State v. Foxen, 2001-NMCA-061, ¶ 17, 130 N.M. 670, 29 P.3d 1071
(recognizing that conflicts in the evidence are to be resolved by the fact finder).

{22} Additionally, we find support for our determination that sufficient evidence exists
in State v. Burrell, 160 S.W.3d 798 (Mo. 2005) (en banc), and State v. Fernane, 914 P.2d
1314 (Ariz. Ct. App. 1995). In Burrell, a mother was convicted of one count of endangering
the welfare of a child in the first degree where the mother knew of previous incidents of
abuse and still allowed the father to have access to the child. 160 S.W.3d at 799-800. The
mother was present when the father kicked their two-year-old son hard enough to send him
flying to the top of a stairway, kicked the child in the torso while he was lying on the ground,
slammed the child’s face into the floor, and put his foot on the child’s face. Id. When the
mother spoke with police, she admitted that the child’s father had started hitting and
choking her when she was still pregnant with the child, that approximately a year later he
began hitting and beating the child, and that the abuse had escalated to where he would
punch and kick the child. Id. at 801. She also informed police that she tried to stop the
child’s father but that he would beat her when she did. Id. The Missouri Supreme Court
held that there was “sufficient evidence from which a reasonable trier of fact could conclude
that [m]other’s act of placing [c]hild in contact with [f]ather . . . resulted in a substantial risk
of harm to [c]hild.” Id. at 802. The court relied on the mother’s knowledge of past abuse,
the fact that she witnessed the incident of abuse on the day of the child’s death and did not
take steps to stop the abuse or to remove the child, and the fact that she allowed the child’s
father to stay with them after the severe beating and, thereby, putting the child in a situation
where there was an actual risk of harm to the child, which was realized later that night when
the child’s father continued the abuse by slapping and kicking the child when he would not
wake up. Id.

{23} In Fernane, a mother was convicted of child abuse in connection with the death of
her two-year-old daughter based on less direct evidence than was present in Burrell. The
mother left her daughter with a man with whom she was living. Fernane, 914 P.2d at 1315.
The Arizona Court of Appeals concluded that there was sufficient evidence to establish that
the mother knew she was endangering her daughter by leaving her in this man’s care where
she had told her daughter’s father that she did not trust the man caring for their daughter and
that their daughter was afraid of her caretaker, where the mother had been present for
instances of previous abuse, and where her daughter would scream when this man came
close to her or when they drove into his driveway. Id. at 1315-16. The court therefore
concluded that the prosecution had proved that “under circumstances likely to cause death
or serious physical injury, appellant intentionally or knowingly placed a child in a situation
where the child’s health or safety was endangered.” Id. at 1316.

{24} In the present case, although Defendant did not witness the abuse on July 27, she was
informed of the abuse by Ordoñez. Defendant told police about Uriah being scared and
clingy, having bruises consistent with Ordoñez’s admission, and that Uriah was vomiting,
twitching, and lethargic. Moreover, Defendant had previously witnessed Uriah being abused
by Ordoñez. While the November 2003 incident may not have been sufficient to put
Defendant on notice that she was placing Uriah at risk on July 27, given the information
Defendant received from Ordoñez on July 27, Defendant’s knowledge of previous abuse

8
lends support to the jury’s conclusion that Defendant acted with reckless disregard for
Uriah’s health and welfare when she left Uriah in Ordoñez’s care on July 29. We conclude
therefore that there was sufficient evidence to support the jury’s verdict based on
Defendant’s leaving Uriah in Ordoñez’s care on July 29. Accordingly, we do not address
the State’s alternative argument that Defendant should have been aware that she was
endangering Uriah by leaving him in Ordoñez’s care on July 27 based on the November
2003 incident of abuse.

Suppression

{25} Defendant contends that the trial court erred in denying her motion to suppress oral
statements she claims were elicited from her in violation of her rights under the Fifth
Amendment to the United States Constitution and article II, section 15 of the New Mexico
Constitution. The State contends that Defendant failed to preserve a separate claim under
article II, section 15 of our state constitution because Defendant only asserted her rights
pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), in her written motion to suppress and
at the motion hearing. See State v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d
1280 (stating that in order to preserve an issue for appeal, a defendant must make a timely
objection that specifically apprises the trial court of the nature of the claimed error and
invokes an intelligent ruling thereon). There is no indication in Defendant’s reply brief that
the State’s contention is incorrect. It is Defendant’s obligation to demonstrate that she
preserved the issue below. See State v. Rojo, 1999-NMSC-001, ¶ 44, 126 N.M. 438, 971
P.2d 829 (filed 1998) (stating that an appellate court will not search the record to find
whether an issue was preserved where the defendant does not refer the court to appropriate
transcript references). Accordingly, to the extent Defendant raises a claim of error under
article II, section 15 of our state constitution for the first time on appeal, this Court limits its
review to Defendant’s properly preserved claim of error raised pursuant to the Fifth
Amendment to the United States Constitution.

{26} Defendant contends that her statements to police should have been suppressed
because she was not first informed of her rights in accordance with Miranda. An officer’s
obligation to administer Miranda warnings arises only “when a person is (1) interrogated
while (2) in custody.” State v. Wilson, 2007-NMCA-111, ¶ 12, 142 N.M. 737, 169 P.3d
1184 (internal quotation marks and citation omitted). In reviewing the trial court’s
determination regarding Defendant’s entitlement to the protections of Miranda, “we bear in
mind that there is a distinction between factual determinations which are subject to a
substantial evidence standard of review and application of law to the facts[,] which is subject
to de novo review.” State v. Munoz, 1998-NMSC-048, ¶ 39, 126 N.M. 535, 972 P.2d 847
(alteration in original) (internal quotation marks and citation omitted). In other words, “[w]e
determine whether the law was correctly applied to the facts, viewing the facts in the light
most favorable to the prevailing party[,] . . . indulg[ing] in all reasonable inferences in
support of the [trial] court’s ruling and disregard[ing] all evidence and inferences to the
contrary.” State v. Bravo, 2006-NMCA-019, ¶ 5, 139 N.M. 93, 128 P.3d 1070 (filed 2005)
(alteration in original) (internal quotation marks and citation omitted).

9
{27} “Custody is determined objectively, not from the subjective perception of any of the
members to the interview.” State v. Nieto, 2000-NMSC-031, ¶ 20, 129 N.M. 688, 12 P.3d
442. A court therefore applies an objective test to resolve whether there was “a formal arrest
or restraint on freedom of movement of the degree associated with a formal arrest.” Wilson,
2007-NMCA-111, ¶ 14. Because the test is objective, the inquiry is how a reasonable person
who is being interviewed by police would have understood his or her situation. Id. This
Court has identified a number of factors to consider in determining whether a reasonable
person would believe he or she is free to leave “includ[ing] the purpose, place, and length
of interrogation[,] . . . the extent to which the defendant is confronted with evidence of guilt,
the physical surroundings of the interrogation, the duration of the detention, and the degree
of pressure applied to the defendant.” Bravo, 2006-NMCA-019, ¶ 9 (internal quotation
marks and citation omitted).

{28} The circumstances in the present case are similar to those in Bravo. In Bravo, the
defendant called 911 to report that her four-year-old son had been injured and was
unconscious. Id. ¶ 2. The defendant’s son was taken to the hospital, and police asked that
the defendant remain at her home to answer questions regarding her son’s injury. Id. ¶ 4.
The defendant was interviewed by police, but no arrest was made. Id. The defendant was
questioned again several days later when police went to the defendant’s home and asked
whether the defendant and her husband would be willing to give another statement. Id. ¶ 12.
The defendant and her husband agreed to be interviewed and followed the officers to the
police station in their own personal vehicle. Id. Once at the police station, the defendant
“essentially confessed” to having abused her son, and she was allowed to go home with her
husband at the conclusion of the interview. Id. ¶ 13.

{29} This Court determined in Bravo that neither the police officers’ questioning of the
defendant at her home nor the subsequent questioning of the defendant at the police station
was a custodial interrogation. Id. ¶¶ 11-13. In reaching this determination, we relied on the
fact that for the interview at the defendant’s home, she was questioned in familiar
surroundings, the questioning took place with the defendant’s family members still in the
home, the defendant expressed a willingness to speak with the investigator, the defendant’s
movements were not restricted in any way, and after interviewing the defendant, the officers
left her residence. Id. ¶ 11. With respect to the subsequent interview at the police station,
we considered that the defendant was asked to give another statement and was willing to do
so; that the defendant and her husband followed officers to the police station in their own
personal vehicle; that the defendant never told the officers that she was tired; that the
defendant was never placed in handcuffs or told she was under arrest; and that, despite her
confession, the defendant was allowed to go home at the conclusion of the interview. Id. ¶¶
12-13.

{30} Similarly, in the present case, Defendant called police to assist her in locating her
missing child, the officer dispatched to Defendant’s location spoke with Defendant while she
was with a friend in her friend’s home, the officer asked Defendant if she would go to the
police station, Defendant agreed, and Defendant’s friend drove Defendant and her daughter
to the police station. Once at the station, Defendant was left unattended in an employee
lounge area, where she was permitted to nap, and she was offered food and drink. Defendant

10
was never placed in a locked or secured room, handcuffed, or otherwise restrained.
Defendant was not forced, pressured, or threatened, nor was she confronted with evidence
of her own guilt. Defendant was forthcoming with information, she wanted to talk to
detectives, and she was not advised that she was under arrest or told she could not leave.
Defendant never informed officers that she wanted to leave, that she was tired, or that she
did not want to give a statement. Further, following Defendant’s statements to police, a
police officer gave her a ride back to her friend’s house and no arrest was made.

{31} We conclude that Defendant was not in custody for purposes of Miranda. See Nieto,
2000-NMSC-031, ¶ 21 (holding that a suspect was not in custody where the suspect was
“asked and agreed to accompany [the] police officers to the station, was free to leave or
terminate the interview, and was provided transportation to and from the station” because
these facts are “consistent with routine, non-custodial police questioning”); Munoz, 1998-
NMSC-048, ¶ 43 (holding that a suspect was not in custody where the suspect willingly went
with police to be questioned, was not handcuffed or searched, was not interviewed in a
locked space, and was taken back home when the interview was completed). We therefore
affirm the trial court’s denial of Defendant’s motion to suppress.

Change of Venue

{32} Defendant argues that the trial court erred by denying her multiple motions for
change of venue. Defendant moved the trial court for a change of venue both prior to the
commencement of her joint trial with Ordoñez and following the mistrial. At the hearing on
her first motion for change of venue, Defendant argued that there had been pervasive pretrial
publicity that would negatively impact her ability to secure a fair and impartial jury in Doña
Ana County. The trial court denied Defendant’s motion for change of venue and instead
ordered the parties to prepare jury questionnaires that would be sent out to panel members
prior to jury selection to see if a fair and impartial jury could be selected in Doña Ana
County. The trial court ruled that it would also prepare for the possibility that the jury
questionnaires would reveal that a fair and impartial jury could not be selected and that an
alternate venue would need to be arranged.

{33} Jury questionnaires were sent out before the first trial. The questionnaires instructed
the jury pool to avoid publicity regarding Defendant’s case. Following the mistrial,
Defendant again moved the trial court for a change of venue, arguing that fourteen members
of the jury pool for the first trial had ignored the instruction to avoid publicity and had
admitted to reading an article regarding the case in the local newspaper. Defendant also
argued that there had been extensive coverage of the trial further impacting her ability to
secure a fair and impartial jury. The trial court denied Defendant’s motion.

{34} Jury questionnaires were submitted to the new jury panel. Prior to voir dire, the trial
court held a hearing to resolve issues raised by the jury questionnaires. At that hearing, the
trial court and the parties considered the 248 potential juror questionnaires that were
returned, and by agreement of counsel or by decision of the court, 112 potential jurors were
struck for cause. Following voir dire, a twelve-person jury and two alternate jurors were
chosen.

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{35} This Court reviews the trial court’s venue determination for an abuse of discretion.
State v. House, 1999-NMSC-014, ¶ 31, 127 N.M. 151, 978 P.2d 967. As our appellate courts
have noted in previous cases, “[t]he trial court’s discretion in this matter is broad and will
not be disturbed on appeal unless a clear abuse of that discretion can be demonstrated.” Id.;
see State v. Barrera, 2001-NMSC-014, ¶ 11, 130 N.M. 227, 22 P.3d 1177; State v. Mantelli,
2002-NMCA-033, ¶ 54, 131 N.M. 692, 42 P.3d 272. “The burden of establishing an abuse
of discretion is borne by the party that opposes the trial court’s venue decision.” House,
1999-NMSC-014, ¶ 31. As the party opposing the trial court’s venue decision, it is
Defendant’s burden to establish an abuse of discretion.

{36} A trial court’s decision to grant a change of venue may be based on either a
presumption that prospective jurors are prejudiced or on evidence of actual juror prejudice.
In House, our Supreme Court discussed the distinction between actual prejudice and
presumed prejudice.

Actual prejudice requires a direct investigation into the attitudes of potential
jurors. Under this inquiry, the court will conduct a voir dire of prospective
jurors to establish whether there is such widespread and fixed prejudice
within the jury pool that a fair trial in that venue would be impossible.
Presumed prejudice, on the other hand, addresses the effect of publicity about
a crime upon the entire community where the trial takes place. Under this
inquiry, a change of venue should be granted if evidence shows that the
community is so saturated with inflammatory publicity about the crime that
it must be presumed that the trial proceedings are tainted.

Id. ¶ 46 (citation omitted); see Mantelli, 2002-NMCA-033, ¶ 55 (“Presumed prejudice makes
inferences about the effect of publicity on the community as a whole, while actual prejudice
is based upon direct evidence of bias in the minds of the individual prospective jurors.”).
The choice of whether to grant a change of venue based on presumed prejudice prior to voir
dire or to make a determination based on actual prejudice after voir dire is within the sound
discretion of the trial court. See House, 1999-NMSC-014, ¶ 55 (“[T]he choice of waiting
until after voir dire before granting a motion to change venue rests with the sound discretion
of the trial court and will not be disturbed absent an abuse of that discretion.”).

{37} When a trial court has determined that a movant has not demonstrated presumed
prejudice and proceeds to voir dire, our Supreme Court has stated that New Mexico appellate
courts are limited to a review of the evidence of actual prejudice. See Barrera, 2001-NMSC-
014, ¶ 16. In limiting the appellate review of a trial court’s venue decision, the Court stated
that “[a] finding of no actual prejudice following voir dire, if supported by substantial
evidence, necessarily precludes a finding of presumed prejudice.” Id. Although the trial
court in this case did not issue a written order finding that no actual prejudice existed, the
trial court chose to make a determination based on actual prejudice following voir dire, and
once a venire was gathered, the trial court implicitly determined that actual prejudice did not
exist by impaneling a jury from the available jurors. See Stinson v. Berry, 1997-NMCA-076,
¶ 8, 123 N.M. 482, 943 P.2d 129 (“Where there has been no formal expression concerning
a motion, a ruling can be implied by entry of final judgment or by entry of an order

12
inconsistent with the granting of the relief sought.”). Accordingly, this Court does not
review the trial court’s determination that Defendant failed to establish presumed prejudice
because the trial court chose to make its change of venue determination based on the
existence of actual prejudice and implicitly ruled that actual prejudice did not exist. To the
extent Defendant requests this Court to review the trial court’s denial of her motion for
change of venue based on presumed prejudice, our doing so would exceed the scope of
review set out by our Supreme Court in change of venue cases. We further note that even
if this Court were to review the trial court’s presumed prejudice determination, based on our
review of the record below, Defendant would be unable to demonstrate an abuse of
discretion on appeal.

{38} Moreover, Defendant makes no argument on appeal that any of the impaneled jurors
exhibited actual prejudice. Instead, Defendant’s argument on appeal mirrors her argument
below, that pretrial publicity, public statements by the district attorney, and the general
attitude within the community established that prejudice existed. However, “[w]hen courts
address actual prejudice, the often quoted inquiry . . . is whether the jurors had such fixed
opinions that they could not judge impartially the guilt of the defendant. Given the state of
modern communications, it is not only unnecessary, but realistically impossible to expect
jurors to be totally ignorant of the facts and issues of a case.” House, 1999-NMSC-014, ¶
51 (internal quotation marks and citations omitted). Defendant has not identified any
individual selected to serve on the jury who indicated he or she could not be impartial. See
Barrera, 2001-NMSC-014, ¶ 18 (holding that there was no evidence of actual prejudice
where the “individuals actually selected for the jury stated that they were either unfamiliar
with the case or that they could decide the case based upon the evidence presented at trial”).
“Exposure of venire members to publicity about a case by itself does not establish
prejudice.” State v. Chamberlain, 112 N.M. 723, 726, 819 P.2d 673, 676 (1991); see State
v. Hargrove, 108 N.M. 233, 239, 771 P.2d 166, 172 (1989) (stating that “fairness does not
require that jurors be totally ignorant of the facts and issues of the case”). Accordingly, we
conclude that Defendant has not satisfied her burden on appeal, and we affirm the trial
court’s denial of Defendant’s change of venue request.

Sentencing

{39} Defendant contends that the trial court abused its discretion by refusing to mitigate
her sentence. The trial court sentenced Defendant to eighteen years in prison based on
Defendant’s conviction for negligent child abuse resulting in death in violation of Section
30-6-1(D), the basic sentence for a first-degree felony. See § 30-6-1(E) (“If the abuse results
in great bodily harm or death to the child, he is guilty of a first degree felony.”); NMSA
1978, § 31-18-15(A)(3) (2003) (amended 2005 and 2007) (“If a person is convicted of a
noncapital felony, the basic sentence . . . for a first degree felony [is] eighteen years
imprisonment[.]”). The trial court also sentenced Defendant to a term of three years in
prison based on her conviction for tampering with evidence, the basic sentence for a third-
degree felony. See § 30-22-5(B)(1) (“[I]f the highest crime for which tampering with
evidence is committed is a capital or first degree felony or a second degree felony, the person
committing tampering with evidence is guilty of a third degree felony.”); § 31-18-15(A)(7)

13
(“If a person is convicted of a noncapital felony[,] the basic sentence . . . for a third degree
felony [is] three years imprisonment[.]”).

{40} As this Court stated in State v. Cumpton, 2000-NMCA-033, ¶ 12, 129 N.M. 47, 1
P.3d 429, “[t]here is no obligation on the part of a judge to depart from the basic sentence.
The opportunity for a [trial] court to mitigate a sentence depends solely on the discretion of
the court and on no entitlement derived from any qualities of the defendant.” While
Defendant acknowledges that her sentence is lawful, that it is the basic sentence prescribed
by the Legislature, and that the trial court had no obligation to mitigate, Defendant
nonetheless argues that her sentence is “unjust and unwarranted” and that the trial court
abused its discretion in refusing to mitigate where Defendant presented uncontroverted
expert testimony that she needed specific treatment for her battered-spouse syndrome
diagnosis.

{41} Sentencing is reviewed for an abuse of discretion. State v. King, 2007-NMCA-130,
¶ 4, 142 N.M. 699, 168 P.3d 1123 (stating that we review a trial court’s sentencing
determination for abuse of discretion and questions regarding the legality of a sentence de
novo). This Court has previously held that there is no abuse of discretion if the sentence
imposed is authorized by law. See State v. Augustus, 97 N.M. 100, 101, 637 P.2d 50, 51 (Ct.
App. 1981). As we stated in Cumpton, “[a d]efendant is entitled to no more than a sentence
prescribed by law.” 2000-NMCA-033, ¶ 12. Defendant received the sentence prescribed
by law in this case. We therefore affirm with respect to this issue.

CONCLUSION

{42} For the reasons stated above, we affirm Defendant’s convictions and sentence.

{43} IT IS SO ORDERED.

____________________________________
CYNTHIA A. FRY, Chief Judge

WE CONCUR:

____________________________________
JONATHAN B. SUTIN, Judge

____________________________________
TIMOTHY L. GARCIA, Judge

Topic Index for State v. Vasquez, No. 27,304

AE APPEAL AND ERROR
AE-SR Standard of Review

CL CRIMINAL LAW

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CL-CN Child Abuse and Neglect
CL-TE Tampering with Evidence

CT CONSTITUTIONAL LAW
CT-MW Miranda Warnings
CT-SL Self-incrimination

CA CRIMINAL PROCEDURE
CA-CV Change of Venue
CA-MR Motion to Suppress
CA-SI Self-incrimination
CA-SN Sentencing
CA-SE Substantial or Sufficient Evidence

JI JURY INSTRUCTIONS
JI-CJ Criminal Jury Instructions
JI-IJ Improper Jury Instructions

15