This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 29,559 9 DANIEL CONSAUL, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 12 Douglas R. Driggers, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 Ralph E. Trujillo, Assistant Attorney General 16 Albuquerque, NM 17 for Appellee 18 Jacqueline E. Cooper, Acti ng Chief Public Defender 19 Allison H. Jaramillo, Assist ant Appellate Defender 20 Santa Fe, NM 21 for Appellant 22 MEMORANDUM OPINION 23 WECHSLER, Judge. 24 Defendant Daniel Consaul appeals fro m a judgment, order, and commitment 252 convicting him of child abuse, contrary to NMSA 1978, Section 30-6-1(C), (D) (2005) 1 (amended 2009), sentencing him to eighteen years imprisonment, and designating the 2 offense as a serious violent offense (S VO), pursuant to the Earned Meritorious 3 Deductions Act (EMDA), NMSA 1978, § 33-2-34 (2004) (amended 2006). On 4 appeal, Defendant argues that (1) the State failed to present sufficient evidence that 5 Defendant intentionally or negligently cau sed the victim’s brain injuries, (2) Dr. 6 Denise Coleman, an expert witness in critical care pediatrics and child abuse, 7 impermissibly told the jury that the victim ’s injuries were caused by child abuse, (3) 8 Dr. Mary Johnson, an expert witness in pediatric neurology, impermissibly 9 commented on the veracity of Defendant wh en she testified that because Defendant’s 10 story changed she suspected child abuse, (4) the district court erred in denying defense 11 counsel’s request for separate jury instructions and separate verdict forms for 12 negligent child abuse and intentional childabuse, (5) the district court erred in 13 determining that it could not mitigate Defendant’s sentence, and (6) the district court 14 erred in determining that Defendant’s offense was an SVO. We affirm. 15 BACKGROUND 16 This case arose out of neurological inju ries (brain injuries) suffered by ten17 week-old Jack Consaul (Jack). Defendant is Jack’s uncle and occasional caretaker. 18 Defendant babysat Jack on the night Jack suffered his brain injuries while Jack’s 193 mother, Defendant’s sister, Heidi Consaul worked. 1 Defendant’s version of events derived from two interviews with Detective Mark 2 Meyers that occurred shortly after the incide nt. In the first interview, Defendant stated 3 that Jack was sleeping in his crib when he suddenly cried out. Defendant rushed to the 4 bedroom and found that Jack had vomited in the crib and appeared rigid. In his 5 second interview, which occurred once the docto rs treating Jack began to suspect child 6 abuse, Defendant admitted to getting frustrated with J ack because Jack would not stop 7 crying. Defendant admitted swaddling Jack tightly with a blanket and placing Jack 8 face down on a pillow in the crib for at l east an hour. Defendant checked on Jack once 9 and observed that Jack seemed to be fineand sleeping. Shortly after checking on 10 Jack, Defendant heard Jack scream and found that Jack had vomited and appeared 11 rigid. He called Heidi and a neighbor, and they both rushed to the apartment. They 12 took Jack to an emergency room in Las Cruces, and Jack was subsequently airlifted 13 to the University of Ne w Mexico Hospital (UNMH). 14 Initially, the pediatrician on call at th e emergency room, Dr. Hernan Ciudad, 15 thought Jack had an infection and that his sy mptoms were due to septic shock. The 16 pediatric intensivist at UNMH who initiallytreated Jack, Dr. Dawn Joseph, also 17 believed that Jack suffered from a bacterial infection and was in septic shock. Once 18 Jack’s cultures came back negative for infection, Dr. Joseph determined that Jack was 194 not in septic shock and could not find anything else wrong with Jack. Shortly 1 thereafter, CT and MRI scans revealed that Jack suffered brain damage, brain 2 swelling, and ischemia, which is insufficient blood flow to the brain. 3 On the second day in the hospital, Jacksuffered a seizure that could not be 4 contained with anti-seizure medication. Dr. Joseph called Dr. Johnson, a pediatric 5 neurologist at UNMH, to provide a consu lt due to Jack’s seizure. Dr. Johnson 6 suggested that Jack may have suffered from suffocation, and Dr. Joseph concurred 7 that suffocation explained all of J ack’s symptoms. Once the UNMH doctors 8 determined that suffocation cau sed Jack’s injuries, a child abuse investigation began. 9 The State charged Defendant, in the altern ative, with negligent child abuse and 10 intentional child abuse. Withregard to the negligent ch ild abuse charge, the State’s 11 theory was that Jack’s injuries were caused by Defendant swaddling Jack too tightly 12 and placing him face down out of frustration, actions that the State argued amount to 13 gross recklessness for the safetyand welfare of Jack. Withregard to the intentional 14 child abuse charge, the State’s theory of the case was that swaddling Jack and placing 15 him face down would not cause such severebrain injuries and therefore Defendant 16 intentionally suffocated Jack to get him tostop crying. Defendant presented evidence 17 and argued that Jack’s injuries were not caused by suffocation while Jack was in 18 Defendant’s care and instead that Jack su ffered brain damage while at UNMH caused 195 by excessive fluid given to Jack in order to treat the original diagnosis that Jack 1 suffered from septic shock as a result of an infection. 2 Defendant requested a separate jury instruction and separate verdict forms for 3 negligent child abuse and intentional ch ild abuse. The district court denied 4 Defendant’s request and provide d the jury with a single jury instruction, which stated 5 the alternative charges, and a general verdict form. The juryreturned a general verdict 6 convicting Defendant of child abuse. At Defendant’s sentencing hearing, the district 7 court sentenced Defendant to a basic sentence of eighteen years. The district court did 8 not consider mitigating factors at the se ntencing hearing, reasoning that because our 9 Supreme Court declared NMSA 1978, Section 31-18-15.1 (1993) (amended 2009), 10 facially unconstitutional, it did not have discretion to consid er mitigating factors. The 11 district court further found that Defendant’s conviction was an SVO under the EMDA, 12 Section 33-2-34(L)(4)(o)(9), finding that De fendant acted intentionally in causing 13 Jack’s brain injuries. 14 On appeal, Defendant argues that (1) the State failed to present sufficient 15 evidence that Defendant intentionally or ne gligently caused Jack’s brain injuries, (2) 16 Dr. Coleman, an expert witness in critical care pediatrics and child abuse, 17 impermissibly told the jury that Jack’s in juries were caused by child abuse, (3) Dr. 18 Johnson, an expert witness in pediatric neurology, impermissibly commented on the 196 veracity of Defendant when she testified that because Defendant’s story changed she 1 suspected child abuse, (4) the district c ourt erred in denying de fense counsel’s request 2 for separate jury instructions and separate verdict forms for negligent child abuse and 3 intentional child abuse, (5) the district court erred in determining that it lacked 4 discretion to mitigate Defendant’s senten ce, and (6) the district court erred in 5 determining that Defendant’s o ffense was an SVO. We affirm. 6 SUFFICIENCY OF THE EVIDENCE 7 Standard of Review 8 Defendant argues that the State faile d to present sufficient evidence that 9 Defendant either intentionallyor negligently caused Jack’s brain injuries. Because the 10 jury returned a general verdict, we address whether sufficient evidence supported 11 Defendant’s convictions for both negligent child abuse and intentional child abuse. 12 “The test for sufficiency of the evidence is whether substantial evidence of either a 13 direct or circumstantial nature exists tosupport a verdict of guilt beyond a reasonable 14 doubt with respect to every element essential to a conviction.” State v. Sena , 2008- 15 NMSC-053, ¶ 10, 144 N.M. 821, 192 P.3d 1198 (i nternal quotation marks and citation 16 omitted). “[S]ubstantial evidence means suchrelevant evidence as a reasonable mind 17 might accept as adequate to support a conclusion[.]” State v. Baca , 1997-NMSC-059, 18 ¶ 14, 124 N.M. 333, 950 P.2d 776 (internal quotation marks and citation omitted). We 197 view the evidence in the light most favorableto, and indulge all inferences in favor 1 of, the verdict. Sena , 2008-NMSC-053, ¶ 10; State v. Sanders , 117 N.M. 452, 456, 2 872 P.2d 870, 874 (1994). If there is sufficient evidence supporting the verdict, we 3 do not reweigh the evidence or substitute our judgment for that of the factfinder. State 4 v. Fuentes , 2010-NMCA-027, ¶ 13, 147 N.M. 761, 228 P.3d 1181. 5 Negligent Child Abuse 6 In order to convict Defendant of negligent child abuse, the State had to prove 7 beyond a reasonable doubt that (1) Defendant endangered the life or health of Jack, 8 (2) Defendant acted with reckless disregard, (3) Defendant’s acti ons or failure to act 9 resulted in great bodily harm to Jack, and (4) Jack was under the age of eighteen. See 10 UJI 14-602 NMRA. In order to find that Defendant acted with reckless disregard, the 11 State had to prove that Defendant knew or should have known that his conduct created 12 a substantial and foreseeable risk, that he di sregarded that risk, and that he was wholly 13 indifferent to the consequences of the c onduct and the welfare and safety of Jack. See 14 id. 15 Defendant first argues that there was insufficient evidence as to the third 16 element, that Defendant’s actions caused Jack’s injuries. Specifically, Defendant 17 notes that the State’s theory of negligen ce in this case was that Defendant “swaddled 18 Jack tightly and put him face down in his crib” and that these actions “would [not] 198 cause the type of injuries seen in” Jack. In support, Defendant notes that several 1 experts testified that Jack’s injuries werenot consistent with being swaddled and 2 placed face down in his crib. Dr. Joseph te stified that it was unlikely that Jack’s 3 injuries were caused by being swaddled and placed face down in th e crib because Jack 4 was a “two-and-a-half-month-old who was able to lift [his] head . . . back and forth 5 . . . and he was developing normally.” Dr . Coleman similarly testified that placing 6 Jack face down in the crib was insufficient to cause Jack’s injuries , particularly since 7 she received reports that Jack woke up crying. 8 However, the State presented contrary evidence that Defendant’s manner of 9 swaddling Jack and placing him face down on a pillow was consistent with Jack’s 10 brain injuries. Dr. Blaine Hart, a radiol ogist at UNMH who reviewed Jack’s MRI and 11 CT scans, testified that the brain injuri es were consistent with placing a baby face 12 down on a pillow for an hour so that the baby could not get a sufficient supply of 13 oxygen. Dr. Joseph similarly testified th at Defendant’s actions could explain 14 everything that was medically wrong with J ack. Looking at the evidence in the light 15 most favorable to the verdict, this tes timony was sufficient for a reasonable jury to 16 conclude that Defendant sw addling Jack in a blanket and placing him face down on 17 a pillow in his crib caused Jack’s brain injuries. See Sena , 2008-NMSC-053, ¶ 10; 18 Baca , 1997-NMSC-059, ¶ 14. The jury was free to disregard the contrary evidence, 199 and we therefore decline to reweigh the evidence and substitute our judgment for that 1 of the factfinder. State v. Rojo , 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 ; 2 Fuentes , 2010-NMCA-027, ¶ 13. 3 Defendant argues that, even assuming that Defendant swaddling Jack and 4 placing him face down in his crib caused Jack ’s injuries, Defendant did not act with 5 reckless disregard. Indeed, our Supreme Court has interpreted the mens rea element 6 of negligence in the child abuse statute to require a showing of criminal negligence 7 instead of ordinary negligence. Santillanes v. State , 115 N.M. 215, 221-22, 849 P.2d 8 358, 364-65 (1993). Criminal negligence requi res “proof that the defendant knew or 9 should have known of the danger involved and acted with a reckless disregard for the 10 safety or health of the child.” Id . at 222, 849 P.2d at 365. 11 Detective Meyers testified that he took two statements from Defendant shortly 12 after the incident. In the first statement, Defendant denied that anything happened that 13 would explain Jack’s condition. However, in the second interview, Defendant told 14 Detective Meyers that he began to get fru strated that Jack would not stop crying and 15 he therefore swaddled Jack “quite a bit tighter” than usual. In addition to bundling 16 Jack tighter than usual, he bundled J ack “hastily” because he was frustrated. 17 Defendant then placed Jack face down in hi s crib “to get him to stop crying” and 18 “because he was aggravating mewith his crying[.]” Defendant subsequently left the 1910 room for over an hour. Jack’s age along withDefendant’s statements that he wrapped 1 Jack tightly and hastily in a blanket whileaggravated, laid hi m face down on a pillow 2 in a manner to get him to stop crying, and le ft him in a room with no supervision for 3 over an hour was sufficient for a reasonable jury to conclude that Defendant created 4 a substantial and foreseeable risk, that he di sregarded that risk, and that he was wholly 5 indifferent to the consequences of the c onduct and the welfare and safety of Jack. See 6 UJI 14-602; cf. State v. Chavez , 2007-NMCA-162, ¶ 10, 143 N.M. 126, 173 P.3d 48 7 (holding that there was sufficient evid ence of negligent child abuse when the 8 defendant placed a child, not yet six months old and swaddled in blankets, on a low 9 youth bed, with no rails, nine inches from a space heater and fell asleep on the couch 10 leaving the child unsupervised). Suffici ent evidence therefore supported Defendant’s 11 conviction if the conviction was based on negligent child abuse. 12 We also note Defendant’s argument that J ack’s mother testified that she often 13 put Jack to sleep in the same manner, swaddled and on his stomach, and that therefore 14 Defendant could not have foreseen the risk of harm to Jack. However, Defendant’s 15 argument is not supported by the record. Jack ’s mother testified that Jack slept on 16 both his stomach and his back on occasion, but that when she placed Jack on his 17 stomach, she did not swaddle him. 18 Intentional Child Abuse 1911 In order to convict Defendant of intentional child abuse, the State had to prove 1 beyond a reasonable doubt that (1) Defendant tortured or cruelly punished Jack, (2) 2 Defendant acted intentionally, (3) Defendant ’s actions or failure to act resulted in 3 great bodily harm to Jack, and (4) Jack was under the age of eighteen. See UJI 14- 4 602. Defendant challenges the third element and argues that the State presented 5 insufficient evidence that hi s actions caused Jack’s injuries. Specifically, Defendant 6 argues that the State failed to prove that De fendant intentionally caused Jack’s injuries 7 because (1) there were no physical manifestations of suffocation on Jack, and (2) there 8 was conflicting evidence regarding the cause of Jack’s injuries. 9 Regarding his first argument, we acknowledge that there was uncontroverted 10 testimony that there were no physical manife stations of suffocation on Jack. However, 11 Dr. Coleman, a pediatric intensivist at UNMH who took over care for Jack on October 12 14, testified that physical manifestati ons were only found in fifty percent of 13 suffocation cases. She further stated that placing a hand over a child’s mouth could 14 deprive the child of oxygen and fully explain th e injuries that Jack suffered. It was 15 therefore possible that intentional suffocation caused Jack’s injuries without physical 16 manifestations based on the evidence presented at trial. See Sanders , 117 N.M. at 457, 17 872 P.2d at 875 (“Testimony by a witness w hom the factfinder has believed may be 18 rejected by an appellate court only if th ere is a physical impossibility that the 1912 statements are true or the falsity of th e statement is apparent without resort to 1 inferences or deductions.”). 2 Regarding his second argument, Defendant claims the evidence established that 3 Jack’s injuries were caused by excessive fl uid resuscitation used to treat Jack for 4 shock at the emergency room in Las Cru ces and at UNMH and not by suffocation. In 5 support, Defendant points out that Dr. Martin Jose Boyd, an expert witness in 6 emergency medicine, testified that it is indeedpossible to give too much fluid, that it 7 can make swelling of the brain worse, and th at he did not disagree that Jack had brain 8 injuries before being brought to the emergency room. Additionally, Defendant’s 9 expert, Dr. Jearl Lindley, testified that (1) excess fluid can cause swelling in the brain, 10 (2) the amount of fluid given to Jack c ould have devastating effects, and (3) he 11 believed that Jack’s brain injuries occurred at UNMH due to excess fluid resuscitation. 12 Specifically, Dr. Lindley testified, using an e xhibit, that a total of 1280 ml of fluid was 13 given to Jack, 954 ml of which Jack did not urinate out, that Jack’s average blood 14 volume is 350 ml, and that giving a baby fluid equal to twice the average blood 15 volume could cause brain swelling and explain Jack’s injuries. 16 While the testimony of Dr. Boyd and Dr. Lindley may support a reasonable 17 conclusion that excess fluid resuscitation at UNMH caused J ack’s brain injuries, the 18 State presented sufficient contrary evidence that excess fluid resuscitation does not 1913 cause brain swelling and that Jack’s injuri es were caused by suffocation. Dr. Hart 1 testified that Jack’s brain injuries wereconsistent with suffocation. Although he 2 acknowledged that there were a variety of possible causes, he testified that Jack’s 3 brain injuries were not consistent with ex cess fluid resuscitation. Dr. Joseph testified 4 that Jack’s symptoms were consistent with suffocation. Additionally Dr. Joseph 5 testified that there is “no basis in any medical literature” that excess fluid can cause 6 brain swelling. Dr. Johnson similarly testif ied that Jack suffered brain damage caused 7 by a lack of oxygen to the brain. Dr. Johnson testified that she had never seen a child 8 suffer a serious brain injury from fluid resuscitation and, additionally, there was 9 nothing to indicate that the fluid given to Jack was excessive. Based on this evidence, 10 a jury could reasonably conclude that J ack’s injuries were caused by intentional 11 suffocation and not excess fluid resuscitation. We therefore decline the invitation to 12 reweigh the evidence and substitute our judgment for that of the jury. See Fuentes , 13 2010-NMCA-027, ¶ 13. Sufficient evid ence therefore supported Defendant’s 14 conviction if the conviction was based on intentional child abuse. 15 EXPERT TESTIMONY 16 Standard of Review 17 Defendant argues that (1) Dr. Coleman im permissibly told the jury that Jack’s 18 injuries were caused by child abuse, and (2) Dr. Johnson impermissibly commented 1914 on the veracity of Defendant by telling the jury that because Defendant changed his 1 story, she suspected child abuse. Defendantconcedes that he did not preserve either 2 issue below, and we therefore revi ew only for fundamental error. See State v. Davis , 3 2009-NMCA-067, ¶ 7, 146 N.M. 550, 212 P.3d 438. Fundamental error is error that 4 goes to the foundation of the case or implicates a right so essential to the defense that 5 no court should permit the defendant to waive. State v. Johnson , 2010-NMSC-016, 6 ¶ 25, 148 N.M. 50, 229 P.3d 523. “Fundamental error only applies in exceptional 7 circumstances when guilt is so doubtful that it would shock the judicial conscience to 8 allow the conviction to stand.” Id. (internal quotation marks and citation omitted). 9 Dr. Coleman 10 Dr. Coleman provided a consult on Jack on October 11 and took over care for 11 Jack from October 14-18. She opined thatswaddling Jack and putting him face down 12 on a pillow would not cause his severe brain injuries. She testified that, because Jack 13 was ten weeks old and therefore able to lift his head on hi s own, there must have been 14 significant suffocation where Jack was unabl e to escape in order to explain the 15 severity of the brain injuries . At the conclusion of her testimony, the State asked Dr. 16 Coleman whether she formed “an opinion as to what caused Jack’s injury.” Dr. 17 Coleman responded “yes” and opined that J ack’s injuries were the result “[o]f an 18 intentional suffocation. So it’s child abuse.” 1915 Defendant argues that Dr. Coleman’s st atement that “it’s child abuse” was 1 impermissible causation testimony. Indeed, our Supreme Court has held that an 2 “expert will not be allowed to state an opinion in terms of causality[.]” State v. 3 Alberico , 116 N.M. 156, 176, 861 P.2d 192, 212 (1993) (holding that an expert may 4 not testify that the victim’s symptoms “w ere in fact caused by sexual abuse”). The 5 Alberico Court held that such causation testimony “encroaches too far upon the 6 province of the jury to determine the truthfulness of the witnesses.” Id. Dr. 7 Coleman’s testimony that “it’s child abuse” was therefore improper causation 8 testimony. While the State cites Davis , 2009-NMCA-067, ¶ 20, for the proposition 9 that an expert is permitted to offer an opi nion as to whether actual injuries suffered by 10 a victim are consistent with child abus e, that characterization does not accurately 11 describe the testimony in this case. Dr. Co leman did not testify that Jack’s injuries 12 were consistent with child abuse; she testified that it was child abuse. 13 However, as noted, because Defendant failed to preservethe issue in the district 14 court, we only review for fundamental erro r. Under this standard of review, we 15 cannot say that the testimony denied Defendant a fair trial or that without Dr. 16 Coleman’s testimony that Defendant’s “gu ilt is so doubtful that it would shock the 17 judicial conscience to allow the conviction to stand.” Johnson , 2010-NMSC-016, ¶ 25 18 (internal quotation marks and citation omitted) . As we discussed in addressing the 1916 sufficiency of the evidence for Defendant’s convictions, the State presented 1 substantial evidence supporting Defendant’s child abuse conviction in the form of 2 testimony regarding the events leading to Jack’s injuries, that the injuries were 3 consistent with child abuse, and that the injuries were not consistent with Defendant’s 4 version of events. Dr. Coleman’s improper causation testimony did not rise to the 5 level of fundamental error. See State v. Barber , 2003-NMCA-053, ¶ 8, 133 N.M. 540, 6 65 P.3d 1095 (“Where there is substantial evid ence . . . to support the verdict of the 7 jury, we will not resort to fundamental error.” (internal quotati on marks and citation 8 omitted)). 9 Dr. Johnson 10 In addition to her testimony regarding Jack’s injuries and treatment, Dr. 11 Johnson also testified regarding Defendant not reporting tothe doctors at UNMH that 12 he swaddled Jack and laid him face down in the crib until several days after the 13 incident. She testified that “the thing th at stood out was this change in story, the 14 change in the history from the time [Jack] wa s admitted to the ER.” She stated that 15 “[i]t was later–and this is very typical of child abuse–it was only later, and it was three 16 days later after he was initially admitted to UNM[H], that the first indication of [Jack] 17 being wrapped or swaddled and placed on his tummy on a pillow was heard about.” 18 Further, she testified that “the history changed. This is classi c in . . . child abuse 1917 cases, and I’ve seen all too many of them.” Defendant argues that this testimony by 1 Dr. Johnson was improper because it was a comment on the veracity of Defendant. 2 While the State concedes that the “credi bility of witnesses is to be determined 3 by the jury,” see State v. Duran , 2006-NMSC-035, ¶ 21, 140 N.M. 94, 140 P.3d 515, 4 we disagree that Dr. Johnson’s testimony co mmented on the veracity of Defendant. 5 Dr. Johnson testified only that the history changed three days after Jack was brought 6 to the ER and that changes in histories are consistent with child abuse cases. A 7 qualified expert may properly te stify, based on experience, that the facts of the case 8 are consistent with a crime. See State v. Wilson , 2011-NMSC-001, ¶¶ 29-38, 149 9 N.M. 273, 248 P.3d 315 (holding that an expert ’s opinion that the victim’s cause of 10 death was consistent with smothering was admissible). Dr. Johnson did not testify 11 that Defendant’s version of the events were untruthful and did not directly challenge 12 the credibility of Defendant and theref ore her testimony was not improper. See State 13 v. Neswood, 2002-NMCA-081, ¶¶ 6, 19, 132 N.M. 505, 51 P.3d 1159 (holding that 14 expert testimony explaining how and why recantation occurs in child abuse cases was 15 not improper commentary on the veracity of a witness in a case in which the victim 16 recanted prior accusations against the defendant); cf. Duran , 2006-NMSC-035, ¶¶ 21- 17 22 (holding that it is improper for the prosecution to elicit testimony by direct 18 inquiries as to whether witnesses were “lying”). 1918 JURY INSTRUCTION AND GENERAL VERDICT FORM 1 The district court provided the jury w ith a single instruction, stating both 2 alternative counts, that to find Defendant guilty of child abuse resulting in great bodily 3 harm, the State had to prove that (1) Defendant either caused Jack to be placed in a 4 situation that endangered his life or health, or, tortured or cruelly punished Jack, (2) 5 Defendant acted intentionally or with reckless disregard, and (3 ) Defendant’s actions 6 or failure to act resulted ingreat bodily harm to Jack. The district court denied 7 Defendant’s request for separateverdict forms and jury instructions for negligent child 8 abuse and intentional child abuse, and the jury returned a general guilty verdict against 9 Defendant. On appeal, Defendant contends that the single instruction and the general 10 verdict form violate Rule 5-611(A) NMRAand Article II, Section 18 of the New 11 Mexico Constitution, because it allowed th e jury to convict Defendant without a 12 unanimous verdict. 13 “Our review of this appeal is de novo, because the propriety of jury instructions 14 given or denied is a mixed question of law and fact.” State v. Henley , 2010-NMSC15 039, ¶ 12, 148 N.M. 359, 237 P. 3d 103 (alteration, internal quotation marks, and 16 citation omitted). The due process clause of Article II, Section 18 of the New Mexico 17 Consitution requires a “unanimous verdict on the crime charged . . . for conviction in 18 a criminal case.” State v. Salazar , 1997-NMSC-044, ¶ 39, 123 N.M. 778, 945 P.2d 1919 996. “However, common law analyses of due process havenot required jury 1 unanimity on a particular theo ry of the crime charged.” Id. ; see State v. Fry , 2006- 2 NMSC-001, ¶ 18, 138 N.M. 700, 126 P.3d 516. 3 Defendant argues that negligent child abuse and intentional child abuse are 4 different crimes, not different theories of a single crime. However, this Court 5 addressed whether a general verdict and a single jury instruction in a child abuse case 6 violated the defendant’s right to a unanimous verdict in State v. Utter , 92 N.M. 83, 7 582 P.2d 1296 (Ct. App. 1978). Th e child abuse statute in e ffect at the time provided 8 that “[a]buse of a child consists of a person knowingly, intentionally or negligently” 9 abusing a child. Id. at 85, 582 P.2d at 1298 (internal quotation marks and citation 10 omitted). The jury instruction provided that the state prove “[t]hat [the d]efendant did 11 this act knowingly, intentionally or negligently.” Id. (internal quotation marks 12 omitted). This Court held that the instruc tion was not “legally deficient” because of 13 the “alternative intent requirements” becau se it followed the language of the statute. 14 Id. at 86, 582 P.2d at 1299. Underlying this rationale was the conclusion that child 15 abuse is “one crime which could be committed in possibly varying ways.” Id. In this 16 case, the relevant portions of Section 30-6- 1(D), the child abuse statute, are identical 17 to the statute in Utter

. See § 30-6-1(D) (stating that “[a]bus e of a child consists of a 18 person knowingly, intentionally or negligently ” abusing a child). It was therefore not 1920 “legally deficient” for the district court to deny Defendant’s reque st for separate jury 1 instructions and a special verdict form becau se child abuse is “one crime which could 2 be committed in possibly varying ways.” Utter , 92 N.M. at 86, 582 P.2d at 1299. 3 Defendant argues that Utter is no longer good law in light of our Supreme 4 Court’s decision in Santillanes . However, our Supreme Court in Santillanesheld that 5 the district court erred in failing to inst ruct the jury on the correct definition of 6 “negligence” now in Section 30-6-1(D). Santillanes , 115 N.M. at 222, 849 P.2d at 7 365. Our Supreme Court held that the pr oper definition of “negligence” in what is 8 now Section 30-6-1(D) is the criminal ne gligence standard as opposed to the civil 9 negligence standard. Santillanes , 115 N.M. at 222, 849 P.2d at 365. Santillanesdid 10 not overrule, nor does it conflict with, Utter

. 11 SENTENCING 12 Standard of Review 13 Defendant makes two arguments regarding hi s sentencing: (1) the district court 14 incorrectly believed that it could not mitigate Defendant’s sentence because our 15 Supreme Court declared Section 31-18-15. 1 facially unconstitutional, and (2) the 16 district court erroneously found that Defe ndant’s offense was an SVO. We review a 17 district court’s sentencing fo r an abuse of discretion. State v. Jensen , 1998-NMCA18 034, ¶ 19, 124 N.M. 726, 955 P.2d 195. “Howev er, our review of the application of 1921 the law to the facts is conducted de novo.” State v. Martinez , 2008-NMSC-060, ¶ 10, 1 145 N.M. 220, 195 P.3d 1232 (internal quotati on marks and citation omitted). “A 2 misapprehension of the law upon which a c ourt bases an otherwise discretionary 3 evidentiary ruling is subject to de novo review.” Id. 4 Mitigation 5 At the sentencing hearing, the district court determined that it had no discretion 6 to consider mitigating circum stances because our Supreme Court declared the statute 7 providing that a judge may enter factual findings and in his discretion mitigate a 8 sentence, Section 31-18-15.1, unconstitutional. The district court found, for purposes 9 of appeal, that Defendant does not have a prior felony criminal record and does not 10 have prior bad acts that would indicate a propensity for violence. However, these 11 mitigating factors were not ultimately considered. Defendant argues that the district 12 court abused its discretion because Sec tion 31-18-15.1 was declared unconstitutional 13 regarding aggravation, not mitigation of a sentence. 14 In State v. Frawley , 2007-NMSC-057, ¶ 22, 143 N.M. 7, 172 P.3d 144, our 15 Supreme Court held that the district court violated the defendant’s Sixth Amendment 16 right to trial by jury by altering the de fendant’s sentence upward in accordance with 17 Section 31-18-15.1(A). The version of Sec tion 31-18-15.1(a) in effect at the time 18 provided that a judge may alter the basic sentence “upon a finding by the judge of any 1922 mitigating or aggravating circumstances surrounding the offense or concerning the 1 offender.” Frawley , 2007-NMSC-057, ¶ 8 (internal quotation marks and citation 2 omitted). The FrawleyCourt recognized, based on the United States Supreme Court’s 3 decision in Cunningham v. California , 549 U.S. 270 (2007), that “the Sixth 4 Amendment is violated any time a defendant is sentenced above what is authorized 5 solelyby the jury’s verdict alone.” Frawley , 2007-NMSC-057, ¶ 23. As a result, the 6 FrawleyCourt determined that Section 31-18-15.1 was facially unconstitutional 7 because it required that the judge, not the jury, issue findings of any aggravating or 8 mitigating circumstances. Frawley , 2007-NMSC-057, ¶¶ 22, 25. Therefore, at the 9 time the district court sentenced Defendant, Section 31-18-15.1 had no effect as a 10 result of being facially uncons titutional. The district court therefore did not abuse its 11 discretion in not considering mitigating circumstances when sentencing Defendant 12 because the district court did not have discretion to alter Defendant’s sentence. 13 We acknowledge that Frawleyand Cunninghamwere cases that involved 14 aggravation, not mitigation, of the defendant’s sentence. While Defendant argues that 15 the holding of Frawleyis inapplicable to mitigation and therefore the district court 16 could issue factual findings apart from the juryverdict and, in its discretion, mitigate 17 Defendant’s sentence, the Frawley Court considered whether the statute was 18 severable. Frawley , 2007-NMSC-057, ¶¶ 25-29. It concluded that “as written, 1923 [Section 31-18-15.1] can never be applied ina manner consistent with the Sixth 1 Amendment.” Frawley , 2007-NMSC-057, ¶ 25. Further, the FrawleyCourt 2 addressed “the issue of whether we s hould attempt to temporarily remedy the 3 constitutional deficiency.” Id. ¶ 30. However, it conclude d that “the question of how 4 to ultimately fix the constitutional problem. . . lies with the Legislature.” Id. Indeed, 5 our Legislature did amend Section 31-18-15. 1, effective July 2009, to cure the 6 constitutional deficiencies. See 2009 N.M. Laws, ch. 163, § 1. However, the 7 amended Section 31-18-15.1 took effect af ter Defendant’s February 2009 sentencing. 8 Serious Violent Offense 9 Defendant argues that the district court erred in finding that Defendant’s offense 10 was an SVO under the EMDA, Section 33-2-34. Section 33-2-34(L)(4)(o)(9) 11 provides that a district court may designate child abuse to be a SVO based on the 12 “nature of the offense and the resulting harm .” In order to find that a crime is an 13 SVO, a district court must find that the crime was “committed in a physically violent 14 manner either with an intent to do serious harm or with recklessness in the face of 15 knowledge that one’s acts are reasonably likely to result in serious harm.” State v. 16 Morales , 2002-NMCA-016, ¶ 16, 131 N.M. 530, 39 P.3d 747. A district court is 17 required to “make specific findings both to inform the defendant being sentenced of 18 the factual basis on which his good time credit is being substantially reduced, and to 1924 permit meaningful and effective appellate review of the court’s designation.” State 1 v. Loretto , 2006-NMCA-142, ¶ 12, 140 N.M. 705, 147 P.3d 1138. 2 Defendant argues that the district court failed to meet Loretto ’s requirements 3 of specific findings because the district c ourt’s only finding was a bald assertion that 4 Defendant acted intentionally. Indeed, th e district court found “that the acts taking 5 place in this case, the intentional childabuse resulting in great bodily harm, is 6 sufficient to establish a [SVO].” However, the district court elaborated that its 7 conclusion was 8 [b]ased on the conviction and the manner in which the testimony was 9 presented at trial that swaddling and placing the child face down on the 10 crib would not be sufficient cause for the child to suffocate. One witness 11 testified that a child of this age w ould be able to hold his head up and 12 avoid suffocation, that without there being an eyewitness present other 13 than [D]efendant to testify [about] what occurred, the experts could not 14 say specifically what occurred. Th e experts stated that [D]efendant’s 15 version of what occurred would not have caused the severe injuries or 16 the suffocation of this child . . . the court is calling it a reasonable 17 inference to be drawn from the facts set forth from the witness stand. 18 The district court therefore based the SVO designation of the crime on a 19 determination that, considering the severityof Jack’s injuries, Defendant must have 20 acted intentionally based on testimony that Defendant’s explanati on of swaddling Jack 21 and laying him face down in the crib could notcause Jack’s injuri es. He specifically 22 cited expert testimony that Jack’s injuri es were not caused by Defendant swaddling 23 and placing him face down in the crib becausea baby developed at the level of Jack 2425 could hold his head up. These findings were specific enough to meet the Loretto 1 standard because the findings specifically informed Defendant “of the factual basis 2 on which his good time credit [was] substantially reduced” and were based on 3 reasonable inferences from the evidence presented at trial. See Loretto , 2006-NMCA4 142, ¶ 12; see also State v. Abril , 2003-NMCA-111, ¶ 26, 134 N.M. 326, 76 P.3d 644 5 (holding that this Court will not reverse a de termination that a general verdict of child 6 abuse is an SVO when “the record satisfies us that a rational jury could have found 7 that [the d]efendant intentionally caused [the victim’s] injuries”). 8 CONCLUSION 9 For the foregoing reasons, we affirm. 10 IT IS SO ORDERED. 11

___________ ___________ __________ 12 JAMES J. WECHSLER, Judge 13

WE CONCUR: 1426 ________________________________ 1 JONATHAN B. SUTIN, Judge 2

________________________________ 3 CYNTHIA A. FRY, Judge 4