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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                    No. A-1-CA-34417

 5 KENNETH B. MURRAY,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
 8 James Waylon Counts, District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   John Kloss, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Bennett J. Baur, Chief Public Defender
15 Kimberly Chavez Cook, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 FRENCH, Judge.
 1   {1}   Defendant Kenneth B. Murray was charged with negligent child abuse not

 2 resulting in death or great bodily harm and aggravated driving while intoxicated

 3 (DWI). Defendant was convicted by jury trial on February 14, 2014, and appeals on

 4 four grounds: (1) that admission of evidence about the horizontal-gaze nystagmus

 5 (HGN) test as evidence of intoxication constitutes plain error, (2) that there was

 6 insufficient evidence to support the willful refusal element of the aggravated DWI

 7 charge, (3) that the negligent child abuse jury instruction improperly stated the

 8 negligence standard and was therefore fundamental error, and (4) that Defendant’s

 9 trial counsel was ineffective. We affirm Defendant’s convictions.

10 BACKGROUND

11   {2}   In the early morning of September 21, 2013, Alamogordo, New Mexico police

12 officers were dispatched to a house party due to noise complaints. Defendant was

13 present at this party. While responding to the noise complaint, both Officer Amber

14 Compary and Officer Ryan Glidden encountered Defendant at the residence. Both

15 observed him to be “stumbling,” “swaying,” and “slurring his speech.” Officer

16 Glidden observed Defendant walking to his car with a child and advised him that he

17 was too intoxicated to drive safely. Defendant apparently returned to the party. At

18 approximately 2:15 a.m. on September 21, 2013, Officer Amber Compary stopped

19 Defendant while he was driving in the vicinity of the party for failing to stop at a stop



                                               3
 1 sign and failure to maintain his traffic lane. Defendant had his ten-year-old son in the

 2 vehicle. Officer Compary observed Defendant to have slurred speech, an odor of

 3 alcohol emitting from his person, and bloodshot eyes. Defendant stated that he had

 4 been drinking, but had stopped drinking at around nine o’clock the evening of

 5 September 20, 2013. Officer Compary performed field sobriety tests on Defendant,

 6 including an HGN test, the walk-and-turn test, and the one-leg stand test. After

 7 Defendant failed to satisfactorily execute the field sobriety tests, Officer Compary

 8 placed Defendant under arrest for DWI. While at the police station, Defendant was

 9 given the implied consent advisement regarding a breath test. Defendant initially

10 agreed to a breath test and Officer Compary prepared the breathalyzer machine. When

11 Officer Compary went to the booking room to get Defendant for the test, Defendant

12 appeared to be asleep. She shook Defendant to wake him, and Defendant opened his

13 eyes and looked at her, then closed his eyes again and turned over. Defendant was

14 charged with aggravated DWI on the grounds that he refused a breath test and

15 negligent child abuse not resulting in great bodily harm or death.

16   {3}   On January 2, 2014, Defendant filed four handwritten pleadings. In the first,

17 entitled “affidavit of defense[,]” he stated that the party he attended on September 20,

18 2013, was “non alcoholic” and that during the party he was attacked by “a small group

19 of people (approx. 6 to 7 males)” who were holding beer bottles, and that his memory



                                              4
 1 of the events and his actions after this point is “fragmented and distorted.” In the

 2 second pleading, entitled “notice of d[i]minished capa[c]ity[,]” Defendant stated that

 3 “I was in fact injured as the result of an unprovoked assault w[h]ich did then reduce

 4 my physical and mental abilities beyond my control[,]” and that he “did not have

 5 physical or mental control in the quan[t]ity or quality to hold him to respon[s]ibility

 6 for his actions[,]” and that Defendant had “extrem[e]ly vague and unreliable memories

 7 of the time frame surrounding the instant case[.]” In the third pleading, entitled

 8 “motion to dismiss grand jury [indictment] for insufficiency of evidence[,]” Defendant

 9 stated that his behavior was “the product of debilitating menta[l]ly incapa[ci]tating

10 injur[ies] susta[i]ned as a result of an unprovoked assault on [Defendant’s] person by

11 multiple assa[ilants] at a non alcoholic family and friend reunion.” The fourth of these

12 pleadings is entitled “motion for order to subpoena witnesses” and in it, Defendant

13 requested that the court issue subpoenas for Chris Washington and Yvonne Chavez,

14 although the nature of their proposed testimony was not described, and for a

15 “[m]edical/psyc[h]iatric professional obtained by my defense coun[sel.]” Defendant

16 also stated that the professional witness “should be selected after conference and

17 concur[r]ence of the appropriate wit[ness] to testify by my defen[s]e coun[sel.]” The

18 record does not show that the court took any action on these pleadings.




                                              5
 1   {4}   A jury trial was held on February 14, 2014, and Defendant was found guilty on

 2 both the aggravated DWI and the child abuse counts. Prior to the beginning of the

 3 trial, Defendant’s counsel made a motion to withdraw on the grounds that Defendant

 4 had informed counsel that Defendant had “no confidence” in counsel and Defendant

 5 wanted different counsel and a continuance. The state objected to the continuance and

 6 the court denied both the motion to withdraw and the motion to continue.

 7   {5}   At trial, the State called Officers Compary and Glidden. Officer Compary

 8 testified about the traffic stop, the field sobriety tests she performed on Defendant, and

 9 why she believed Defendant’s performance indicated that he was impaired. Officer

10 Compary testified that one of the tests she performed was the horizontal-gaze

11 nystagmus (HGN) test, that the purpose of the test is to look for “involuntary jerking

12 of the eye,” and that to her knowledge only alcohol or drug use could cause this

13 involuntary jerking. Officer Glidden testified that he had encountered Defendant at a

14 party earlier on the night of September 20-21, 2013, and that Defendant was

15 “swaying” and “stumbling as he walked” to his truck with his son. Officer Glidden

16 also testified that he had advised Defendant not to drive with his son.

17   {6}   Defendant then testified in his own defense. He stated that he had not been

18 drinking on the night of September 20-21, 2013, and that he does not drink due to his

19 religion. He further testified that he had fallen asleep while at the party and was



                                               6
 1 awakened by “a loud commotion.” Defendant testified that he went outside the house

 2 where he encountered people who “didn’t belong” and got into a “scuffle” with them.

 3 He testified that he was hurt, that people hit him with beer bottles, and that he still had

 4 scars from the encounter. Defendant testified that he had alcohol thrown on his

 5 shoulders, headpiece, and shirt, that he had blood on his shirt and face, and wounds

 6 on the right and left sides of his head. Defendant also testified that he had limited

 7 memory of the events during the traffic stop and at the police station.

 8   {7}   The State called Officers Glidden and Compary as rebuttal witnesses. Officer

 9 Glidden testified that he had seen head wounds a number of times, in part because he

10 had children, and that these wounds usually bleed “a lot.” He also testified that he did

11 not see blood on Defendant when he encountered him at the party, that he asked

12 Defendant if he had been in a fight because he was “a little dirty,” and that Defendant

13 denied having been in a fight. Officer Compary also testified that she did not see any

14 blood or wounds on Defendant.

15   {8}   Defendant was convicted of aggravated DWI and child abuse, and now appeals.

16 ANALYSIS

17   {9}   Defendant raises four issues in this appeal: (1) whether the district court’s

18 admission of the HGN testimony from Officer Compary was plain error; (2) whether

19 the State presented sufficient evidence to meet the willful refusal element of the



                                                7
 1 aggravated DWI charge; (3) whether the child abuse jury instruction improperly stated

 2 the required intent; and (4) whether Defendant’s trial counsel was ineffective.



 3 1.       The Admission of the HGN Testimony Was Not Plain Error

 4   {10}   Defendant did not object to the admission of the HGN testimony at trial so we

 5 review it under the plain error standard. See State v. Lucero, 1993-NMSC-064, ¶ 12,

 6 116 N.M. 450, 863 P.2d 1071. “To establish plain error, the error complained of must

 7 have affected substantial rights although the plain errors were not brought to the

 8 attention of the judge.” Id. ¶ 13 (alteration, internal quotation marks, and citation

 9 omitted). To be considered plain error, the admission of the evidence must have led

10 to “an injustice that creates grave doubts concerning the validity of the verdict” and

11 the fairness of the trial. Id. ¶ 12 (internal quotation marks and citation omitted).

12 Additionally, “the admission of evidence in a criminal trial must be declared

13 prejudicial and not harmless if there is a reasonable possibility that the evidence

14 complained of might have contributed to the conviction.” State v. Torres, 1999-

15 NMSC-010 ¶ 52, 127 N.M. 20, 976 P.2d 20 (internal quotation marks and citation

16 omitted).

17   {11}   “HGN testing involves scientific knowledge,” and “HGN evidence . . . must

18 satisfy the requirements of [the] Alberico-Daubert [standard,]” such that the district



                                              8
 1 court has ensured that it is relevant and reliable. Torres, 1999-NMSC-010, ¶ 33. The

 2 district court heard no evidence about the reliability of HGN testing and the State

 3 concedes that the testimony about the nystagmus Defendant exhibited lacked the

 4 requisite foundation.

 5   {12}   Although the HGN testimony was admitted in error, it is harmless error and

 6 therefore not reversible. In Torres, our Supreme Court held that the admission of HGN

 7 testimony was harmful error when the state presented the HGN test as the “most

 8 accurate” and the “one test that cannot be beat.” Id. ¶ 53. In the instant case, however,

 9 the State presented other ample evidence of Defendant’s intoxication, including

10 testimony about Defendant’s slurred speech, the odor of alcohol on his breath, and his

11 inability to perform the walk-and-turn test and the one-leg stand test. All of this

12 evidence alone could have supported Defendant’s conviction without the testimony

13 of the HGN test. See e.g., State v. Neal, 2008-NMCA-008, ¶ 29, 143 N.M. 341, 176

14 P.3d 330 (holding sufficient evidence to convict the defendant on a DWI charge when

15 the defendant smelled of alcohol, had bloodshot and watery eyes, veered over the

16 shoulder line three times, swayed, and failed to follow officer instructions on field

17 sobriety tests). Here, the HGN testimony was one piece of evidence amid other

18 evidence that the State introduced to prove the DWI charge. It was not presented as

19 the most definitive, reputable evidence of Defendant’s intoxication as it was in Torres.



                                               9
 1 We cannot say that the admission of the HGN test led to an injustice that creates grave

 2 doubts concerning the validity of the verdict and the fairness of the trial or that it

 3 impacted substantial rights.

 4 2.       There Was Substantial Evidence to Support the Willful Refusal Element
 5          of the Aggravated DWI Charge

 6   {13}   Defendant argues that there was not substantial evidence to support the willful

 7 refusal element of the aggravated DWI charge. “Substantial evidence” is defined as

 8 “such relevant evidence as a reasonable mind might accept as adequate to support a

 9 conclusion[.]” State v. Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661.

10 Under substantial element review, we “view the evidence in the light most favorable

11 to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in

12 the evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26,

13 128 N.M. 711, 998 P.2d 176. We disregard all evidence and inferences that support

14 a different result. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d

15 829.

16   {14}   To prove aggravated DWI based on refusal to submit to a chemical test, the

17 State must prove that Defendant “refus[ed] to submit to chemical testing . . . and in the

18 judgment of the court, based upon evidence of intoxication presented to the court, the

19 driver was under the influence of intoxicating liquor or drugs.” NMSA 1978, Section

20 66-8-102(D)(3) (2016). The jury instruction regarding refusal to submit to chemical


                                              10
 1 testing, UJI 14-4510 NMRA, stated that the jury had to find “[D]efendant was

 2 conscious and otherwise capable of submitting to a chemical test[,]

 3 and . . . [D]efendant willfully refused to submit to a breath test.”

 4   {15}   There was substantial evidence to support the willful refusal element of the

 5 aggravated DWI charge. Officer Compary testified that when she went to get

 6 Defendant from the booking room for the breath test, Defendant opened his eyes and

 7 looked at her. Officer Compary further testified that Defendant shortly thereafter was

 8 awake and responded to law enforcement and not cooperating. The jury could have

 9 found, based on this evidence, that he was conscious and otherwise capable of

10 submitting to a chemical test.

11 3.       The Child Abuse Instruction Did Not Constitute Fundamental Error

12   {16}   “The standard of review [the appellate courts] apply to jury instructions

13 depends on whether the issue has been preserved.” State v. Benally, 2001-NMSC-

14 033, ¶ 12, 131 N.M. 258, 34 P.3d 1134. If it was not preserved, we “review for

15 fundamental error.” Id. Because there was no objection to the jury instruction

16 regarding the child abuse count, we review for fundamental error. Fundamental error

17 occurs only in “cases with defendants who are indisputably innocent, and cases in

18 which a mistake in the process makes a conviction fundamentally unfair




                                              11
 1 notwithstanding the apparent guilt of the accused.” State v. Barber, 2004-NMSC-019,

 2 ¶ 17, 135 N.M. 621, 92 P.3d 633.

 3   {17}   Defendant claims that the inclusion of the “knew or should have known”

 4 language in the jury instruction constituted fundamental error given the decision in

 5 State v. Consaul, 2014-NMSC-030, 332 P.3d 850. Consaul was decided on August

 6 21, 2014, six months after Defendant’s trial on February 14, 2014. Consaul involved

 7 a defendant charged with child abuse when his infant nephew suffered a neurological

 8 injury while the defendant was caring for the child. Id. ¶¶ 4-5. One of the state’s

 9 theories was that the defendant had swaddled the child tightly and left him unattended

10 for a lengthy amount of time, “face down,” and that the defendant knew or should

11 have known that this would be harmful to the child. Id. ¶¶ 14, 25. The Court reiterated

12 that the correct standard to be used when determining whether a defendant committed

13 negligent child abuse is criminal negligence, and that the statute is intended to punish

14 “morally culpable acts and not mere inadvertence.” Id. ¶ 36. The Consaul court

15 further stated, “[t]ypical definitions of recklessness require an actor to consciously

16 disregard a substantial and unjustifiable risk of such a nature and degree that its

17 disregard involves a gross deviation from the standard of conduct that a law-abiding

18 person would observe in the actor’s situation.” Id. ¶ 37. Consaul “modif[ies] prior

19 cases . . . in which courts have held that recklessness is not the culpability required for



                                               12
 1 the crime of negligent child abuse.” Id. ¶ 38. The Consaul court also said with regard

 2 to the “knew or should have known” language as it appears in jury instructions, “we

 3 are doubtful about the continued vitality of ‘knew or should have known’ in our

 4 instructions, a subject [the appellate courts] will address in the near future.” Id. ¶ 40.

 5   {18}   The jury instruction used, UJI 14-604 NMRA, contained the following

 6 language:

 7                  [D]efendant acted with reckless disregard. To find that
 8          [Defendant] acted with reckless disregard, you must find that
 9          [Defendant] knew or should have known . . . [D]efendant’s conduct
10          created a substantial and foreseeable risk, . . . [D]efendant disregarded
11          that risk and . . . [D]efendant was wholly indifferent to the consequences
12          of the conduct and to the welfare and safety of [Child.]

13 Although this is the UJI that our Supreme Court found problematic in Consaul, we

14 cannot say the jury was not instructed on recklessness or told that recklessness was not

15 the culpability standard. The jury instruction contains both the language “knew or

16 should have known,” and the recklessness language regarding Defendant’s conduct

17 creating a substantial and foreseeable risk and Defendant being “wholly indifferent

18 to the consequences of [his] conduct” on Child.

19   {19}   However, even if we were to find that Consaul applied to Defendant’s case, and

20 the jury instruction was erroneous because it implied that a civil negligence standard

21 of culpability, it still does not rise to the level of fundamental error. We cannot say

22 that Defendant is indisputably innocent and the inclusion of the “knew or should have


                                               13
 1 known” language does not make Defendant’s child abuse conviction fundamentally

 2 unfair. The State provided sufficient evidence of Defendant’s intoxication to support

 3 a DWI conviction, which we uphold here. A DWI conviction is a sufficient factual

 4 basis for a child abuse by endangerment conviction. See State v. Orquiz, 2012-

 5 NMCA-080, ¶ 8, 284 P.3d 418. Although Orquiz was decided before Consaul, there

 6 is nothing in Consaul that would suggest Orquiz is no longer good law. Driving while

 7 intoxicated with a child is the type of reckless conduct that the court in Consaul held

 8 to constitute criminally negligent behavior, that is, it “disregard[s] a substantial and

 9 unjustifiable risk of such a nature and degree that its disregard involves a gross

10 deviation from the standard of conduct that a law-abiding person would observe in the

11 actor’s situation.” Consaul, 2014-NMSC-030, ¶ 37. Therefore, even if Consaul would

12 have applied retroactively to Defendant’s case due to the “knew or should have

13 known” language in the jury instruction, this jury instruction did not constitute

14 fundamental error.

15 4.       Defendant Was Not Denied Effective Assistance of Counsel

16   {20}   Defendant argues that his trial attorney was ineffective because: (1) his trial

17 attorney failed to object to improper testimony in the form of Officer Glidden’s

18 testimony that head wounds bleed “a lot,” (2) the HGN testimony failed to put forward

19 a theory of the case insisted on by Defendant, (3) his trial attorney failed to present



                                              14
 1 evidence corroborating Defendant’s testimony and theory, and (4) his trial attorney

 2 failed to object to the child abuse instruction. Defendant has not made a prima facie

 3 case that his trial counsel was ineffective.

 4   {21}   Whether counsel was ineffective is a question of law that we review de novo.

 5 Patterson v. LeMaster, 2001-NMSC-013, ¶ 14, 130 N.M. 179, 21 P.3d 1032. In an

 6 ineffective assistance of counsel claim, “the burden [is] on the defendant to show that

 7 his counsel’s performance was deficient and that the deficient performance prejudiced

 8 his defense.” State v. Dylan J., 2009-NMCA-027, ¶ 36, 145 N.M.719, 204 P.3d 44.

 9 “Defense counsel’s performance is deficient if it falls below . . . that of a reasonably

10 competent attorney.” Id.¶ 37 (citations omitted). There is “a strong presumption that

11 counsel’s conduct falls within the wide range of reasonable professional assistance”

12 and that “the challenged action might be considered sound trial strategy.” Id. (internal

13 quotation marks and citation omitted). “A defense is prejudiced if . . . there was a

14 reasonable probability that the result of the trial would have been different” and that

15 absent the errors of defense counsel, “the fact[-]finder would have had a reasonable

16 doubt respecting guilt.” Id. ¶ 38 (omission, internal quotation marks, and citations

17 omitted).

18   {22}   First, Defendant argues that his trial counsel’s failure to object to Officer

19 Glidden’s testimony about head wounds bleeding “a lot” and testimony about HGN



                                              15
 1 constituted ineffective assistance of counsel. On appeal Defendant appears to argue

 2 that he had a head injury that did not bleed; however, at trial Defendant himself

 3 testified numerous times that he was bleeding. Therefore his argument that counsel

 4 should have objected to Officer Glidden’s testimony at trial is largely baseless, and

 5 counsel would have had no reason to object given Defendant’s own testimony.

 6 Although admission of the HGN testimony for the purpose of proving intoxication

 7 without the requisite foundation was erroneous, failure to object to inadmissable

 8 testimony in and of itself is not ineffective assistance of counsel but falls within the

 9 rage of acceptable trial tactics. State v. Martinez, 1996-NMCA-109, ¶ 26, 122 N.M.

10 476, 927 P.2d 31. Defendant’s counsel attempted to use the HGN testimony to bolster

11 Defendant’s claim of a head injury, asking Officer Compary on cross-examination if

12 she knew of other maladies that could cause nystagmus. Furthermore, even if this was

13 an error on counsel’s part, as we discussed above, the admission of this testimony did

14 not prejudice the defense in such a way that the outcome would have been different

15 had the HGN testimony not been admitted.

16   {23}   Second, Defendant argues that counsel failed to put forward a specific defense

17 theory, namely that Defendant was injured in a fight which caused him to appear

18 impaired and smell of alcohol. However, this theory was the basis for Defendant’s

19 case at trial. Defendant himself testified about being attacked, having beer thrown on



                                              16
 1 him, and having limited memory due to being hit on the head. Defense counsel’s

 2 cross-examination of State witnesses focused on whether a head injury could cause

 3 symptoms similar to alcohol impairment. Defendant also argues that counsel’s failure

 4 to call corroborating witnesses to support his defense theory was ineffective assistance

 5 of counsel. On the present record, we cannot eliminate the possibility that defense

 6 counsel did not call additional witnesses because they would not be credible or their

 7 testimony would not support Defendant’s claims.

 8   {24}   Third, Defendant argues that counsel should have objected to the child abuse

 9 jury instruction. It is unclear on what grounds counsel could have objected to the jury

10 instruction, since Consaul had not been decided at the time of Defendant’s trial and

11 the jury instruction was the UJI in use at the time.

12   {25}   Defendant has not made a prima facie case that counsel was ineffective. We

13 reiterate that our holding does not forestall Defendant from seeking collateral review

14 on the basis of ineffective assistance of counsel. See State v. Roybal, 2002-NMSC-

15 027, ¶ 19, 132 N.M. 657, 54 P.3d 61 (stating that an ineffective assistance of counsel

16 claim is more properly brought through a petition for habeas corpus when a full

17 determination would require facts not in the record).

18 CONCLUSION

19   {26}   We affirm.



                                              17
1   {27}   IT IS SO ORDERED.


2                                       ______________________________
3                                       STEPHEN G. FRENCH, Judge


4 WE CONCUR:


5 ___________________________________
6 MICHAEL E. VIGIL, Judge


7 ___________________________________
8 HENRY M. BOHNHOFF, Judge




                                  18
