State of New Mexico v. Kenneth J. Pierre

Santa Fe, NM - Criminal defense attorney represented Defendant on reckless child abuse resulting in great bodily harm charge.

Defendant resided with Ashley, with whom he was in an intimate relationship;

5 the couple's young daughter; and J.A., Ashley's seven-month-old son. After learning

6 Ashley had spoken with J.A.'s father, Defendant became angry and took Ashley's

7 phone, and the couple started arguing. Ashley picked up J.A. and went inside the

8 house to a bedroom, where Defendant began trying to hit her with his hand. In the

9 bedroom, J.A., who was upright in Ashley's arms, was "okay.” Ashley started to

10 leave the bedroom with J.A. to get away. Defendant inflicted a blow aimed at

11 Ashley; whether his hand struck J.A. or Ashley was unclear to her. She could not

12 tell if Defendant hit her directly or if he hit J.A., whose head then hit her chin. After

13 the blow, as Ashley was trying to get away, Defendant grabbed her by the shirt, and

14 she tripped and fell onto her back on the couch. Ashley managed to keep J.A. upright

15 during the fall. Defendant then grabbed J.A. forcefully. Ashley let go of J.A. and ran

16 outside to call for help from a neighbor's phone.

17 {3} While Ashley was at the neighbor's, Defendant came out of the house holding

18 J.A. and stated that J.A. would not wake up. Defendant gave J.A., who was not

19 breathing, to Ashley and left. An ambulance arrived shortly thereafter. J.A. was

20 taken to a local hospital, where he underwent a CT scan of the head that revealed 3

1 life-threatening bleeding in the brain. J.A. was then transferred to a different hospital

2 in Lubbock, Texas for subsequent treatment, and he eventually recovered from the

3 injury.

4 {4} A jury found Defendant guilty of battery on a household member, against

5 Ashley, and reckless child abuse resulting in great bodily harm, against J.A. The jury

6 acquitted him of possession of marijuana, a charge that arose from the police

7 investigation of the incident. Defendant appeals only his child abuse conviction. We

8 discuss as needed additional facts relevant to our resolution of the issues.

9 DISCUSSION

10 I. Ineffective Assistance of Counsel

11 {5} Defendant contends he was denied effective assistance of counsel through his

12 trial counsel's failure to (1) pursue certain defense theories and (2) object to the

13 State's opening statement. He seeks remand to the district court for an evidentiary

14 hearing. We review this issue de novo. See State v. Montoya, 2015-NMSC-010, ¶ 57,

15 345 P.3d 1056.

16 {6} To make out a successful ineffective assistance of counsel claim, a criminal

17 defendant "must first demonstrate error on the part of counsel, and then show that

18 the error resulted in prejudice.” State v. Bernal, 2006-NMSC-050, ¶ 32, 140 N.M.

19 644, 146 P.3d 289. "An error only occurs if [counsel's] representation falls below

20 an objective standard of reasonableness[,]” and cannot "be justified as a trial tactic 4

1 or strategy[.]” Id. (alteration, internal quotation marks, and citation omitted). A

2 defendant establishes prejudice "if, as a result of the deficient performance, there

3 was a reasonable probability that the result of the trial would have been different.”

4 State v. Dylan J., 2009-NMCA-027, ¶ 38, 145 N.M. 719, 204 P.3d 44 (alteration,

5 internal quotation marks, and citation omitted).

6 {7} Evidence establishing ineffective assistance ordinarily is not found in the trial

7 record. State v. Crocco, 2014-NMSC-016, ¶ 13, 327 P.3d 1068. Therefore, an

8 ineffective-assistance claim "should normally be addressed in a post-conviction

9 habeas corpus proceeding, which may call for a new evidentiary hearing to develop

10 facts beyond the record, rather than on direct appeal of a conviction[.]” Id. (citation

11 omitted). When the claim is nevertheless made on direct appeal, as here, we may

12 remand the case for an evidentiary hearing if the defendant makes a prima facie case

13 of ineffective assistance. Id. But "[w]ithout an adequate record, an appellate court

14 cannot determine that trial counsel provided constitutionally ineffective

15 assistance[,]” and remand is not warranted. Id. ¶ 15.

16 A. The Defense's Theory

17 {8} Defendant's first ineffective-assistance claim is premised on his view that "he

18 is most unlikely to have caused the great bodily harm observed in [J.A.]” Defendant

19 faults his counsel for not exploring certain "viable” defense theories before trial that

20 presumably would have supported this view. In support of this claim, Defendant 5

1 relies primarily on the trial testimony of one of the State's expert witnesses, Stephen

2 Carroll, a radiologist physician who reviewed J.A.'s CT scan. Dr. Carroll testified

3 that "absent an injury,” it is "possible, but less likely” that a person would experience

4 bleeding in the brain. He continued,

5 You can say that it is likely that [an event causing bleeding in the brain]

6 occurred within a range of time, but not at an exact moment . . . . Based

7 on the appearance of the blood and its density, it's more likely that in

8 this case [the injury-causing event] happened between twelve hours and

9 two days. After two days, that density starts to fade, and I didn't see

10 any fading in this case.

11 From this, Defendant contends that his counsel "evidently did not investigate” the

12 possibilities that J.A.'s brain bleeding was caused (1) by something other than an

13 infliction of force, or (2) by force inflicted before the altercation. He adds that

14 "[c]ounsel would have discovered both of these [alternative theories] . . . had he

15 either properly interviewed Dr. Carroll . . . or consulted another such expert.”

16 {9} Despite making these claims, Defendant cites no evidence that his trial

17 counsel in fact failed to explore the alternative theories. Our review of the record

18 reveals no such evidence. To the contrary, it reveals that the defense, to at least some

19 extent, did investigate the cause of J.A.'s injury. At a hearing on a motion to review

20 Defendant's conditions of release, defense counsel indicated that interviews with the

21 State's witnesses were being arranged, and that the defense both had received some

22 medical reports and would be seeking more. Later, in a motion to continue,

23 Defendant stated that "the investigator has completed all the interviews,” and 6

1 "additional information has come up that [the investigator] needs to investigate as a

2 result[.]” Such a record leaves open the possibility that Defendant's counsel did

3 indeed "properly” interview Dr. Carroll and consult another expert—and concluded,

4 after having done so, that the alternative theories Defendant now identifies on appeal

5 had little merit compared with the theory ultimately advanced by the defense. See

6 State v. Baca, 1993-NMCA-051, ¶¶ 29-30, 115 N.M. 536, 854 P.2d 363 (declining

7 to presume that counsel failed to look into potentially exculpatory evidence); see

8 also State v. Crain, 1997-NMCA-101, ¶ 26, 124 N.M. 84, 946 P.2d 1095

9 (recognizing no ineffective assistance in counsel's decision to advance one theory in

10 favor of another, mutually exclusive theory). In other words, Defendant's argument

11 unsoundly presumes that Dr. Carroll or some other expert would have substantiated

12 one or both of these alternative theories to such a degree that defense counsel's

ultimate choice of defenses would "appear[] wholly unreasoned[.]”1 13 Baca, 1993-

1

Defendant also faults his counsel for not pointing out to the jury what he

characterizes as the discrepancy between the State's theory of what caused J.A.'s

brain bleeding and Dr. Carroll's suggestion that the injury-causing event occurred

between twelve and forty-eight hours before the scan. This argument suffers from a

failing along the lines of that previously discussed: it is not apparent from the record

that defense counsel's choice of theories was wholly unreasoned. And in light of one

of the defense theories advanced—i.e., that the injury did occur during the

altercation, but the exact cause of the injury was unknown—it would have been

inconsistent to also argue that the injury occurred twelve or more hours beforehand.

See Baca, 1993-NMCA-051, ¶ 36 (validating the defense counsel's election to not

pursue a duress defense, in light of the self-defense theory actually pursued, given

the inconsistency that would have resulted). Under this circumstance, Defendant's 7

1 NMCA-051, ¶ 34; see also Crain, 1997-NMCA-101, ¶ 33 (recognizing no

2 ineffective assistance where the record did not indicate that a defense expert was

3 available to testify and did not reveal the nature of the expert's testimony).

4 {10} To bolster his claim, Defendant attempts to analogize it to State v. Aragon,

5 2009-NMCA-102, 147 N.M. 26, 216 P.3d 276, another case in which the defendant

6 raised an ineffective assistance challenge to a child abuse conviction. In Aragon, this

7 Court remanded for an evidentiary hearing, having held that the defendant

8 established a prima facie case of ineffective assistance because of defense counsel's

9 failures both to interview the state's expert witnesses and to consult an expert. Id.

10 ¶ 1. But in Aragon, unlike here, there was "no dispute that defense counsel failed to

11 conduct [the] pre[]trial interviews[,]” id. ¶ 9, and it was "apparent[]” that no expert

12 was consulted, id. ¶ 12.

13 {11} This Court later distinguished Aragon and declined to remand for an

14 evidentiary hearing in State v. Quiñones, 2011-NMCA-018, 149 N.M. 294, 248 P.3d

15 336, a case more analogous to this one. The defendant in Quiñones likewise

16 complained that his trial counsel failed to consult with or engage an expert who could

17 undermine the state's theory. Id. ¶ 32. Quiñones observed, though, that the record

18 shed no light on counsel's efforts in that regard, id. ¶¶ 32-35, and this Court declined



counsel was entitled to refrain from pointing out the discrepancy, in an effort to

"maintain credibility before the jury.” Id.8

1 to speculate on the matter. Id. ¶ 33 ("On this record, we will not speculate as to what

2 happened behind the scenes with respect to defense counsel's decisions regarding

3 potential defense experts.”). This Court further noted that, in contrast to Aragon,

4 there was no evidence in the record that the potentially exonerating theory

propounded on appeal had support within the medical community. 5 2 Quiñones, 2011-

6 NMCA-018, ¶ 35. This case shares these characteristics of Quiñones and makes the

7 comparison to Aragon inapt.

8 {12} As in Quiñones, we conclude that Defendant "has not demonstrated a prima

9 facie case of ineffectiveness.” 2011-NMCA-018, ¶ 36. "[T]he evidence before us is

10 not sufficient to allow us to determine whether defense counsel's performance was

11 deficient, and if so, whether Defendant was prejudiced as a result.” Id. ¶ 33; see also

12 Dylan J., 2009-NMCA-027, ¶ 40 ("We are reluctant to attempt to decide the issue

13 [of ineffective assistance] when we do not have before us all of the facts needed for

14 an informed decision.”). Our conclusion does not, however, preclude Defendant

2

Both parties cite information from the medical community taken from the

internet to support the strength of their opposing views on the likely cause of J.A.'s

injury—and, by extension, the strength of defense counsel's performance. This

information, however, is not found in the record. As noted, in reviewing an

ineffective-assistance claim, "we evaluate the facts that are part of the record[,]”

Crocco, 2014-NMSC-016, ¶ 14 (internal quotation marks and citation omitted), not

facts that are introduced for the first time on appeal. See also, e.g., State v. Knight,

2019-NMCA-060, ¶ 22, 450 P.3d 462 ("[O]ur scope of appellate review is limited

to a consideration of those facts disclosed by the record.” (internal quotation marks

and citation omitted)). We therefore disregard this information.9

1 from pursuing this issue in a habeas corpus or other post-conviction proceeding. See

2 Quiñones, 2011-NMCA-018, ¶ 36.

3 B. The State's Opening Statement

4 {13} Defendant further argues that he received ineffective assistance because his

5 counsel did not object to a portion of the State's opening statement, which Defendant

6 characterizes as "highly improper” and "unquestionably objectionable.” Defendant

7 cites the following relevant parts of the State's opening:

8 Many of you may recall that in 2008, there was a tornado that hit

9 here in Clovis. It hit near the middle of town, and also caused great

10 harm near the overpass. That was a very scary moment for our

11 community. For if there's anything we all understand about tornadoes,

12 it's that they have one purpose. And that purpose is to destroy anything

13 and everything in their path. A tornado doesn't care.

14 And sometimes as humans, the blame greatly can build towards

15 their partner, can cause them to turn into a tornado. For the only purpose

16 at that time is to destroy anyone and anything in their path, whether that

17 be their significant other, or even a child.

18 . . . .

19 It's been over a year, and Ashley, [J.A.], and his lovely big sister

20 . . . are still trying to rebuild their lives. They're still trying to get over

21 the storm that took place, after this tornado came in and tried to destroy

22 their lives. And this week, the State hopes to bring the calm after the

23 storm.

24 In the defense's opening statement, counsel responded by denying that Defendant

25 was a "tornado.” Defense counsel raised the subject again during closing, arguing 10

1 "[Defendant] is not a tornado, [he] is a human being,” and pointing out that

2 Defendant was crying during much of the trial out of regret for what happened.

3 {14} Defendant's argument on this matter is scant. We understand him to take issue

4 with the statements in the last-quoted paragraph concerning Ashley and the

5 children's predicament following the incident. That is, he argues that the prosecution

6 is generally barred from divulging a victim's emotional state or circumstances to the

7 court or jury. Even if this premise is true, it is unclear how defense counsel's lack of

8 objection to the statements amounted to deficient performance resulting in prejudice,

9 particularly considering that "[f]ailure to object to every instance of objectionable

10 evidence or argument does not render counsel ineffective; rather, failure to object

11 falls within the ambit of trial tactics” that we do not second-guess. State v. Allen,

12 2000-NMSC-002, ¶ 115, 128 N.M. 482, 994 P.2d 728 (alteration, internal quotation

13 marks, and citation omitted). Nor does Defendant explain how his counsel's silence

14 was objectively unreasonable or was so serious that it would undermine our

15 confidence in the accuracy and reliability of his child abuse conviction.

16 {15} Rather, Defendant relies entirely on State v. Dartez, 1998-NMCA-009, 124

17 N.M. 455, 952 P.2d 450. But Dartez is "not a case where there was one isolated

18 reference made in passing” to the matter claimed as off limits. Id. ¶ 30. Rather, it is

19 a case in which testimony was elicited in "extensive detail” on the "highly

20 prejudicial” subject of the defendant's past involvement with illegal drug sales, a 11

1 subject also raised in the state's opening and closing. Id. ¶¶ 28, 30-31. Defense

2 counsel's subsequent silence in Dartez was plainly more unreasonable than in this

3 case—where the statement at issue, an "isolated reference made in passing,” id. ¶ 30,

4 surfaced not during the presentation of evidence or even closing, but only in the

5 State's opening statement. Given the general lack of congruency between Dartez

6 and this case, and the lack of development in what remains of Defendant's argument,

7 we decline to consider the issue further. See State v. Candelaria, 2019-NMSC-004,

8 ¶ 46, 434 P.3d 297 (declining to consider allegations of ineffective assistance where

9 they were inadequately briefed). Again, however, our conclusion does not preclude

10 Defendant from pursuing this issue in a habeas corpus or other post-conviction

11 proceeding. See Quiñones, 2011-NMCA-018, ¶ 36.

12 II. Sufficiency of the Evidence

13 {16} Defendant next argues that there was insufficient evidence to prove that he

14 committed child abuse, as defined by the applicable jury instruction. When

15 reviewing the sufficiency of the evidence, we apply a substantial evidence standard.

16 State v. Chavez, 2009-NMSC-035, ¶ 11, 146 N.M. 434, 211 P.3d 891. "The relevant

17 question is whether, after viewing the evidence in the light most favorable to the

18 prosecution, any rational trier of fact could have found the essential elements of the

19 crime beyond a reasonable doubt.” Id. (alteration, internal quotation marks, and

20 citation omitted). "In performing this review, we must view the evidence in the light 12

1 most favorable to the guilty verdict, indulging all reasonable inferences and

2 resolving all conflicts in the evidence in favor of the verdict.” Id. (internal quotation

3 marks and citation omitted). "A reasonable inference is a conclusion arrived at by a

4 process of reasoning which is a rational and logical deduction from facts admitted

5 or established by the evidence[,]” and "is more than a supposition or conjecture.”

6 State v. Slade, 2014-NMCA-088, ¶ 14, 331 P.3d 930 (alteration, internal quotation

7 marks, and citations omitted).

8 {17} The jury instruction defining child abuse in this case read:

9 For you to find [D]efendant guilty of [c]hild [a]buse [r]esulting

10 in [g]reat [b]odily [h]arm, . . . the State must prove to your satisfaction

11 beyond a reasonable doubt each of the following elements of the crime:

12 1. [Defendant] battered Ashley . . . while she was holding

13 seven month old [J.A.], striking him in the process and then

14 pursued Ashley . . . down a hallway causing her to fall over a

15 couch while holding [J.A.];

16 2. By engaging in the conduct described in Paragraph 1,

17 [Defendant] caused [J.A.] to be placed in a situation that

18 endangered the life or health of [J.A.];

19 3. [Defendant] showed a reckless disregard for the safety or

20 health of [J.A.] To find that [Defendant] showed a reckless

21 disregard, you must find that [Defendant's] conduct was more

22 than merely negligent or careless. Rather, you must find that

23 [Defendant] caused a substantial and unjustifiable risk of serious

24 harm to the safety or health of [J.A.] A substantial and

25 unjustifiable risk is one that any law abiding person would

26 recognize under similar circumstances and that would cause any

27 law abiding person to behave differently than [Defendant] out of

28 concern for the safety or health of [J.A.];13

1 4. [Defendant's] conduct resulted in great bodily harm to

2 [J.A.];

3 5. [J.A.] was under the age of eighteen (18);

4 6. This happened in New Mexico on or about the 20th day of

5 February, 2016.

6 See UJI 14-615 NMRA.

7 {18} Defendant only challenges a portion of the first element, arguing that "guess

work” was needed for the jury to find that Defendant struck J.A. 3 8 The State

9 maintains that the jury heard evidence from which it could reasonably infer that

10 Defendant struck J.A. We agree with the State. Although Ashley was not certain

11 whether Defendant struck J.A. when he swung at her, substantial evidence supports

12 the inference that he did. See State v. Flores, 2010-NMSC-002, ¶ 17, 147 N.M. 542,

3

Defendant contends that (1) "although the indictment here [did] not require

proof that [Defendant] struck [J.A.], jury instructions 'become the law of the case

against which the sufficiency of the evidence is to be measured[,]' State v. Smith,

1986-NMCA-089, ¶ 7, 104 N.M. 729[, 726 P.2d 883]”; and (2) therefore, the act of

striking J.A., because it was articulated in the instructions, had to be proved. This

premise is somewhat flawed; the "law of the case” principle gives way when a jury

instruction includes an additional element not representing a statutory element of the

charged crime. See State v. Carpenter, 2016-NMCA-058, ¶ 15, 374 P.3d 744. In that

circumstance, the sufficiency of the evidence should not be assessed against such an

additional element. See id. ¶¶ 14-15; see also State v. Sweat, 2017-NMCA-069,

¶¶ 31-33, 404 P.3d 20 (rejecting the claim that the state was required to present

evidence of factual elements in a jury instruction, where those elements were absent

in the statute defining the crime). Because we conclude that there was sufficient

evidence to support a finding that Defendant struck J.A., we need not contend with

Defendant's seeming concession that this element was superfluous and his assertion

that the State nonetheless was required to prove it.14

1 226 P.3d 641 (observing that evidence of an act may be sufficient absent eyewitness

2 testimony), overruled on other grounds by State v. Martinez, 2021-NMSC-002, ¶ 87,

3 478 P.3d 880. In particular, J.A.'s head was close to Ashley's at the moment she was

4 hit, and, after the incident, J.A. had fresh cuts behind his right ear, and Ashley was

5 bruised on the left side of her chin. In addition, the jury received evidence that J.A.

6 was fine just before the altercation and that, afterwards, his condition deteriorated

7 drastically. The jury watched a video of J.A., who showed no sign of injury, pushing

8 himself in a walker, interacting with his sister, and otherwise appearing healthy.

9 According to Ashley, the video accurately depicted how J.A. looked before the day

10 of the incident. Ashley also testified that J.A. was "okay” when they were first in the

11 bedroom. Soon after Defendant swung at Ashley, as she held J.A., J.A. lost

12 consciousness and was later diagnosed with bleeding in the brain.

13 {19} Additionally, medical evidence supports a finding by the jury that J.A.'s brain

14 injury was caused by blunt force trauma, such as Defendant striking J.A. Dr. Carroll

15 testified that blunt force trauma was the most common cause of injuries like J.A.'s

16 in children his age. Both Dr. Carroll and the State's other expert, an emergency room

17 physician who examined J.A., testified that, had a man hit someone holding a child,

18 striking the child with his hand, an injury like J.A.'s could result. The emergency

19 room physician further opined that J.A.'s injury was caused not by disease or a

20 natural occurrence, but by trauma.15

1 {20} In short, J.A.'s drastic deterioration closely following Defendant's swinging

2 at Ashley, coupled with Ashley's testimony about what transpired and the nature of

3 J.A.'s injuries, support a reasonable inference that Defendant struck J.A. See State

4 v. Rojo, 1999-NMSC-001, ¶ 23, 126 N.M. 438, 971 P.2d 829 ("Just because the

5 evidence supporting the conviction was circumstantial does not mean it was not

6 substantial evidence.” (internal quotation marks and citation omitted)). See generally

7 State v. Garcia, 2016-NMSC-034, ¶¶ 23-26, 384 P.3d 1076 (rejecting the

8 proposition that an appellate court may upset a jury's verdict by finding that the

9 evidence is consistent with a hypothesis of innocence). Given Defendant challenges

10 only this aspect of the evidence supporting his child abuse conviction, our review of

11 this issue is complete. See Rule 12-318(A)(4) NMRA ("A contention that a verdict,

12 judgment, or finding of fact is not supported by substantial evidence shall be deemed

13 waived unless the argument identifies with particularity the fact or facts that are not

14 supported by substantial evidence[.]”).

15 III. The Child Abuse Jury Instruction

16 {21} Defendant lastly questions the constitutionality of the jury instruction used to

17 convict him of reckless child abuse, which tracked UJI 14-615. He claims that the

18 absence of language conditioning guilt on a finding that he was "wholly indifferent

19 to the consequences of his conduct and to the welfare and safety of [J.A.]” violated

20 his equal protection rights. 16

1 {22} UJI 14-615 resulted from our Supreme Court's deliberation on the wording of

2 its predecessor, UJI 14-602 NMRA (withdrawn Apr. 3, 2015), namely, UJI 14-602's

3 definition of "reckless disregard.” See State v. Consaul, 2014-NMSC-030, ¶¶ 34-35,

4 332 P.3d 850; UJI 14-615 comm. cmt.; UJI 14-612 NMRA comm. cmt. The former

5 version of the jury instruction included such a "wholly indifferent” provision.

6 Consaul, 2014-NMSC-030, ¶ 34. It read:

7 The defendant acted [intentionally] [or] [with reckless disregard]

8 [and without justification]. [To find that __________________ (name

9 of defendant) acted with reckless disregard, you must find that

10 __________________ (name of defendant) knew or should have

11 known the defendant's conduct created a substantial and foreseeable

12 risk, the defendant disregarded that risk and the defendant was wholly

13 indifferent to the consequences of the conduct and to the welfare and

14 safety of __________________ (name of child)[.]

15 UJI 14-602 (footnotes omitted).

16 {23} UJI 14-615, which represents our Supreme Court's most recent expression of

17 the appropriate standard for a conviction of reckless child abuse, see State v.

18 Sundeen, 2001-NMSC-006, ¶ 1, 130 N.M. 83, 17 P.3d 1019 ("[Our] Supreme

19 Court's decision to amend the instruction . . . reflect[s] its belief that the new

20 instruction more accurately reflects the Legislature's intention in enacting the

21 statute.”), leaves out the "wholly indifferent” provision and supplants it with the

22 following:

23 __________ (name of defendant) showed a reckless disregard [without

24 justification] for the safety or health of __________ (name of child). To

25 find that _______________ (name of defendant) showed a reckless 17

1 disregard, you must find that __________ (name of defendant)'s

2 conduct was more than merely negligent or careless. Rather, you must

3 find that __________ (name of defendant) [caused] [or] [permitted] a

4 substantial and unjustifiable risk of serious harm to the safety or health

5 of __________ (name of child). A substantial and unjustifiable risk is

6 one that any law-abiding person would recognize under similar

7 circumstances and that would cause any law-abiding person to behave

8 differently than __________ (name of defendant) out of concern for the

9 safety or health of __________ (name of child)[.]

10 UJI 14-615 (footnotes omitted).

11 {24} We understand Defendant to argue that the inclusion of the "wholly

12 indifferent” provision in the jury instruction used to convict him of reckless child

13 abuse was requisite to equal protection; and, so, the provision's absence in the

14 instruction constituted fundamental error. In particular, Defendant reasons that

15 unequal treatment arises between those accused of reckless child abuse and those

16 accused of negligent arson (a crime defined in part as "recklessly starting a fire[,]”

17 NMSA 1978, § 30-17-5(G) (2006)), in that the uniform jury instruction defining

18 "recklessly” for negligent arson, UJI 14-1704 NMRA, includes a "wholly

19 indifferent” provision virtually identical to that of the former reckless child abuse

20 instruction in UJI 14-602. Compare UJI 14-1704, with UJI 14-602. Defendant

21 appears to view the "wholly indifferent” provision as elevating the standard for

22 conviction and appears to argue that there is no rational basis for what he considers

23 the disparate treatment of the two classes of accused persons arising from the

24 selective application of the provision. 18

1 {25} Defendant did not preserve this issue by objecting to the child abuse jury

2 instruction given. We are therefore limited to reviewing for fundamental error. See

3 State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134. "In a review

4 for fundamental error, we first determine whether an error occurred. If an error

5 occurred, we determine whether the error was fundamental[.]” State v. Marquez,

6 2016-NMSC-025, ¶ 46, 376 P.3d 815 (citation omitted). Because Defendant does

7 not persuade us that the use of the jury instruction violated his right to equal

8 protection, we do not consider his claim that the instruction amounted to

9 fundamental error. See id.

10 {26} We review Defendant's equal protection challenge de novo. See Rodriguez v.

11 Brand W. Dairy, 2016-NMSC-029, ¶ 10, 378 P.3d 13. To make out a successful

12 equal protection claim, Defendant must demonstrate that the object of his challenge

13 (in this case, the portion of the child abuse jury instruction defining reckless

14 disregard) is unconstitutional beyond all reasonable doubt. See id. To arrive at that

15 conclusion, Defendant would first have to prove that he is "similarly situated” to

16 another group with which he should be treated equally, but is not so treated because

of a (in this case) judicial classification.4 17 See Rodriguez v. Scotts Landscaping, 2008-

4

The equal protection case law cited by Defendant references legislative, not

judicial, classifications; and Defendant cites no authority for the proposition that a

jury instruction can serve as the basis of an equal protection claim. We nevertheless

assume for the purposes of our analysis that it can.19

1 NMCA-046, ¶ 10, 143 N.M. 726, 181 P.3d 718. Only then would we move on to the

2 next two steps: determining the appropriate level of scrutiny to apply and deciding

3 whether the object of the challenge survives that scrutiny. See Rodriguez, 2016-

4 NMSC-029, ¶ 9.

5 {27} Defendant, as an individual defending against a charge of reckless child abuse,

6 has not established that he is similarly situated to those defending against charges of

7 negligent arson. Defendant cites four cases in relation to his contention that he is,

8 but none are availing. One of the cases cited, Rodriguez, is factually distinct, in that

9 it held that farm and ranch laborers, whom the law denied workers' compensation

10 benefits, were in a class with other agricultural workers entitled to those benefits. Id.

11 ¶¶ 1, 17. Our Supreme Court made that determination after thoroughly examining

12 the applicable act, its history, and the legislative purposes behind that act. See id.

13 ¶¶ 11-17. Defendant here does not even attempt to analogize this case to

14 Rodriguez—and we fail to see how such a factually and legally distinct case supports

15 his "similarly situated” contention. Moreover, Defendant fails entirely to offer the

16 type of examination of the applicable statutes and jury instructions, and their

17 histories and purposes, that was integral to the "similarly situated” analysis in

18 Rodriguez. See id. ¶ 11 ("[D]ecid[ing] whether the legislation at issue results in

19 dissimilar treatment of similarly-situated individuals . . . requires us to look beyond

20 the classification to the purpose of the law.” (internal quotation marks and citations 20

1 omitted)). Two other cases cited by Defendant, State v. Gwynne, 2018-NMCA-033,

2 417 P.3d 1157, and Ruelas v. Superior Court, 185 Cal. Rptr. 3d 343 (Ct. App. 2015),

3 are not cases in which two classes of persons were deemed similarly situated.

4 Defendant cites them—and the last case, Nordlinger v. Hahn, 505 U.S. 1 (1992)—

5 only for basic propositions of law that he thereafter does not incorporate into any

analysis. 6

7 {28} Overall, Defendant's "similarly situated” argument fails for lack of

8 development; we therefore give Defendant's equal protection claim no further

9 consideration. See Gwynne, 2018-NMCA-033, ¶ 44 (declining to consider the

10 remainder of an equal protection challenge where the defendant's "similarly

11 situated” argument was inadequately developed). Because Defendant has failed to

12 establish an equal protection violation and has offered no other basis beyond his

13 equal protection claim for concluding that the child abuse jury instruction resulted

14 in error, our inquiry is at an end. See Marquez, 2016-NMSC-025, ¶ 46.

Having concluded that Defendant’s arguments lack merit, we affirm.