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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-monthold 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
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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
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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
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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).
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{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
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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.
12

{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-NMSC014, ¶ 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
13

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 thirddegree 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)
14

(“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
15

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