State of New Mexico v. Jeremiah Yazzie-Miller

Albuquerque, NM - Criminal defense attorney represented JEREMIAH YAZZIE-MILLER with a child abuse resulting in great bodily harm charge.

While we note that Defendant has moved this Court to amend his docketing

2 statement, Defendant's proposed amendment raises no new issues but merely

3 reasserts facts previously disclosed in the docketing statement and already known to

4 this Court. As a result, we deny Defendant's motion to amend the docketing

5 statement and address any assertions raised as part of his motion in our response to

6 Defendant's memorandum in opposition.

7 {3} Defendant contends the State failed to prove beyond a reasonable doubt that

8 Defendant showed a reckless disregard without justification for the safety or health

9 of the victim child. See UJI 14-615 NMRA; NMSA 1978, § 30-6-1(D) (2009). As

10 discussed in our calendar notice, it is undisputed that while alone with the victim,

11 Defendant shook the victim and caused the victim to suffer a severe head injury.

12 [CN 3] We proposed to conclude that this evidence was sufficient to support

13 Defendant's conviction. [Id.]

14 {4} Defendant disputes whether the evidence was sufficient to support the element

15 of reckless disregard, where the victim's mother failed to disclose to Defendant that

16 the victim suffered from pulmonary and other medical issues. [MIO 2-3] The

17 memorandum in opposition indicates that trial counsel advised it was argued below

18 that the victim's preexisting conditions, of which Defendant was not aware, clearly

19 exacerbated Defendant's attempt to revive the victim. Defendant consequently

20 contends that, had he known of these medical issues, he would have attempted to

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1 revive the victim differently. [MIO 3, 5] However, Defendant concedes in the

2 memorandum in opposition that while the argument was made below, Defendant

3 presented neither evidence of this non-disclosure nor medical testimony in support.

4 [MIO 3] See State v. Cordova, 2014-NMCA-081, ¶ 10, 331 P.3d 980 ("Argument of

5 counsel is not evidence.”).

6 {5} Further, it appears Defendant gave multiple conflicting statements concerning

7 the circumstances causing the victim's head injury. [RP 65] To the extent Defendant

8 continues to challenge whether the evidence presented was sufficient to demonstrate

9 the element of reckless disregard, we are bound to defer to the jury's findings and

10 refrain from reweighing the evidence. State v. Garcia, 2011-NMSC-003, ¶ 5, 149

11 N.M. 185, 246 P.3d 1057; State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971

12 P.2d 829 (noting that the fact-finder is free to reject the defendant's version of the

13 facts).

14 {6} We conclude that witness testimony and Defendant's statements, in light of

15 the surrounding circumstances, furnished sufficient evidence for the fact-finder to

16 conclude beyond a reasonable doubt that Defendant acted with a reckless disregard

17 by shaking the victim and hitting the victim's head on a bed headboard. See State v.

18 Durant, 2000-NMCA-066, ¶ 15, 129 N.M. 345, 7 P.3d 495 ("Intent can rarely be

19 proved directly and often is proved by circumstantial evidence.”); State v. Muniz,

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1 1990-NMCA-105, ¶ 3, 110 N.M. 799, 800 P.2d 734 ("Intent may be proved by

2 inference from the surrounding facts and circumstances.”).

3 {7} Finally, we reject Defendant's suggestion that medical testimony should have

4 been required "as to what treatment the child could have received and what

5 difference it would have made,” consistent with Defendant's reading of State v.

6 Casaus, No. A-1-CA-35349, mem. op. (N.M. Ct. App. Nov. 21, 2018) (non7 precedential). Defendant's citation to Casaus is inapposite. Casaus was a medical

8 neglect case, in which the conduct at issue was the defendant's failure to obtain

9 medical treatment for the victim. Id. ¶ 22. Such medical evidence was not relevant

10 here, where the conduct at issue was Defendant's shaking of the victim and hitting

11 the victim's head on a bed headboard; the charge was child abuse resulting in great

12 bodily harm, and not one involving the absence of medical treatment.

13 {8} We conclude the evidence at trial was sufficient to support a finding that, in

14 shaking the victim, hitting the victim's head on a bed headboard, and causing a

15 severe head injury, Defendant showed a reckless disregard without justification for

16 the safety or health of the victim.

For the reasons stated in our notice of proposed disposition and herein, we affirm Defendant’s conviction for child abuse resulting in great bodily harm.