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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. 30,619

 5 ANTHONY YAZZIE,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY
 8 Robert Aragon, District Judge

 9 Gary K. King, Attorney General
10 Olga Serafimova, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Robert E. Tangora, L.L.C.
14 Robert E. Tangora
15 Santa Fe, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 FRY, Judge.

19          After consuming a large quantity of alcohol, Defendant drove his vehicle at

20 high speed into a utility pole, killing two passengers and seriously injuring the third.
 1 Defendant was subsequently convicted of negligent child abuse resulting in death,

 2 vehicular homicide, reckless driving resulting in great bodily injury, and driving while

 3 intoxicated. The issues on appeal include a challenge based on the Confrontation

 4 Clause, a challenge to the sufficiency of the evidence, and a question of fundamental

 5 error relating to one of the jury instructions. For the reasons that follow, we conclude

 6 that any evidentiary error was harmless, the convictions are supported by substantial

 7 evidence, and the deficiency in relation to the jury instruction does not rise to the level

 8 of fundamental error. We therefore affirm.

 9 BACKGROUND

10        The accident occurred on September 2, 2007. Throughout the day, Defendant

11 and three friends, Travis Coulston (Travis), Dewayne Lee (Dewayne), and Jackson

12 Nez (Jackson), consumed a significant quantity of alcohol. After attending a social

13 function, they climbed into Defendant’s vehicle, and Defendant “peeled out” as they

14 departed. Shortly thereafter, they collided with a utility pole. The vehicle was

15 traveling at a speed of nearly eighty miles per hour, the engine was operating at almost

16 full throttle, and the brakes were never applied. Travis and Dewayne, who had been

17 seated on the passenger side of the vehicle, were both pronounced dead at the scene.

18 Defendant, who had been driving, and Jackson, who had been in the back seat behind

19 Defendant, both survived, although Jackson was seriously injured.


                                                2
 1        At trial, the State called numerous witnesses who provided testimony about the

 2 events on the day of the accident, the conditions at the scene, and the subsequent

 3 investigation. When Defendant took the stand, he admitted that he was responsible

 4 for the accident and the resultant injuries to Jackson and the deaths of Dewayne and

 5 Travis. Ultimately, the jury found Defendant guilty on all counts. This appeal

 6 followed.

 7 DISCUSSION

 8 Admission of Evidence Concerning Autopsies

 9        At trial, the State called Dr. Zumwalt to testify about the autopsies performed

10 on Dewayne and Travis. Defendant objected on the ground that this testimony would

11 violate his right to confrontation because Dr. Zumwalt had not performed the

12 autopsies himself. The objection was overruled, and Dr. Zumwalt relayed the content

13 of the autopsy reports to the jury, including the findings, opinions, and conclusions

14 of the non-testifying pathologist.

15        On appeal, the State effectively concedes that Dr. Zumwalt’s testimony should

16 have been excluded. Although we are not bound by the State’s concession, State v.

17 Foster, 1999-NMSC-007, ¶ 25, 126 N.M. 646, 974 P.2d 140, abrogated on other

18 grounds by Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683, we note

19 that recent authority provides support for it. See State v. Jaramillo, 2012-NMCA-029,


                                             3
 1 ¶ 15, 272 P.3d 682 (holding that an autopsy report prepared by an absent pathologist

 2 was improperly admitted as evidence in violation of the defendant’s confrontation

 3 rights); see also State v. Cabezuela, 2011-NMSC-041, ¶¶ 48-52, 150 N.M. 654, 265

 4 P.3d 705 (discussing the admissibility of testimony from a pathologist who had been

 5 present at the autopsy, but had not performed it and relied on records prepared by the

 6 other doctor). However, we agree with the State that it is unnecessary to conclusively

 7 determine whether a Confrontation Clause violation occurred in this case because any

 8 error was harmless. See generally Allen v. LeMaster, 2012-NMSC-001, ¶ 28, 267

 9 P.3d 806 (observing that courts should decide cases on the narrowest possible grounds

10 and avoid reaching unnecessary constitutional issues).

11        Our Supreme Court recently clarified that an apparent constitutional error is

12 harmless if “there is no reasonable possibility the error contributed to the jury’s

13 decision to convict [the d]efendant.” State v. Tollardo, 2012-NMSC-008, ¶ 45, 275

14 P.3d 110; see State v. Zamarripa, 2009-NMSC-001, ¶ 52, 145 N.M. 402, 199 P.3d

15 846 (“When a statement is admitted in violation of the Confrontation Clause, we next

16 inquire into whether the error was harmless [and, t]o preclude reversal, the error must

17 be harmless beyond a reasonable doubt.” (citations omitted)). In this context, we must

18 “evaluate all of the circumstances surrounding the error[,]” including “the source of

19 the error and the emphasis placed upon the error.” Tollardo, 2012-NMSC-008, ¶ 43.


                                              4
 1 Evidence of guilt separate from the error may also be relevant, particularly because

 2 such evidence may indicate what role the error may have played in the trial

 3 proceedings. Id. Review may also properly incorporate examination of “the

 4 importance of the [erroneously admitted evidence] in the prosecution’s case, as well

 5 as whether the [error] was cumulative or instead introduced new facts.”              Id.

 6 (alterations in original) (internal quotation marks and citation omitted).

 7        In this case, Dr. Zumwalt’s testimony about the autopsies of Travis and

 8 Dewayne supplied a medical description of the specific injuries that they suffered “as

 9 well as the performing pathologist’s conclusions that these injuries caused their

10 deaths.” However, both the injuries suffered and the cause of death were separately

11 addressed by other witnesses. Several law enforcement officers and emergency

12 medical responders testified to what they had observed. The specifics do not require

13 repetition here; suffice it to say that these witnesses described the appalling carnage

14 at the scene, including the readily apparent and patently fatal injuries suffered by the

15 decedents as a consequence of the accident. In this regard, the only supplemental

16 information that Dr. Zumwalt appears to have provided concerned additional internal

17 injuries. With respect to the cause of death, the senior medical investigator for

18 McKinley County testified to his own independent observations and informed the jury

19 that he had pronounced both Travis and Dewayne dead at the scene. Finally,


                                              5
 1 Defendant admitted on the stand that he was responsible for Travis’s and Dewayne’s

 2 deaths.

 3        In summary, Dr. Zumwalt’s testimony about the autopsies was almost entirely

 4 cumulative. Given the undisputed evidence separately supplied by other witnesses,

 5 which clearly indicated that Travis and Dewayne had died as a result of the accident,

 6 we fail to see any reasonable possibility that Dr. Zumwalt’s testimony contributed to

 7 the jury’s verdicts. Defendant’s vague suggestion that this testimony “moved the

 8 jurors’ focus away from . . . intent towards causation” is unpersuasive. We

 9 therefore conclude that any error associated with the admission of Dr. Zumwalt’s

10 testimony was harmless beyond a reasonable doubt.

11 Sufficiency of the Evidence

12        Next, Defendant challenges the sufficiency of the evidence to support his

13 various convictions, specifically contending that his intoxication should be deemed

14 inconsistent with any determination that he acted with criminal intent. To the extent

15 that Defendant’s argument goes to the effect of voluntary intoxication upon the

16 offenses charged, we apply de novo review. Cf. State v. Dickert, 2012-NMCA-004,

17 ¶ 22, 268 P.3d 515 (observing that whether there was evidence to support intoxication

18 as a defense is reviewed de novo), cert. denied, 2011-NMCERT-___, ___ P.3d ___

19 (Nos. 33, 295 and 33,297, Dec. 6, 7, 2011).


                                             6
 1        In New Mexico, voluntary intoxication is only relevant to specific intent crimes

 2 and offenses requiring subjective knowledge. State v. Brown, 1996-NMSC-073,

 3 ¶¶ 22, 27, 122 N.M. 724, 931 P.2d 69. Voluntary intoxication has no bearing upon

 4 general intent crimes or strict liability offenses. See id. ¶ 22 (observing that evidence

 5 of voluntary intoxication is not admissible in relation to general intent crimes); see

 6 also State v. Gurule, 2011-NMCA-042, ¶ 18, 149 N.M. 599, 252 P.3d 823 (explaining

 7 that “intoxication is not a defense to a strict liability crime because it is irrelevant in

 8 the strict liability context as to whether the defendant had intent to commit the

 9 prescribed act”).

10        Defendant was convicted of negligent child abuse resulting in death, vehicular

11 homicide, reckless driving resulting in great bodily injury, and DWI. Among these,

12 vehicular homicide and reckless driving resulting in great bodily injury are general

13 intent crimes. See State v. Marquez, 2010-NMCA-064, ¶ 12, 148 N.M. 511, 238 P.3d

14 880. As charged in this case, DWI (past driving while impaired to the slightest

15 degree) is a strict liability offense. See State v. Sims, 2010-NMSC-027, ¶ 24, 148

16 N.M. 330, 236 P.3d 642. Accordingly, Defendant’s voluntary intoxication in no way

17 diminishes the sufficiency of the evidence to support his convictions for vehicular

18 homicide, reckless driving resulting in great bodily injury, and DWI.




                                                7
 1        The offense of negligent child abuse is not a specific intent crime. See State v.

 2 Herrera, 2001-NMCA-073, ¶ 12, 131 N.M. 22, 33 P.3d 22 (“[O]ne cannot have

 3 specific intent to commit negligent child abuse.”). The requisite mens rea requires

 4 proof that the defendant knew or should have known that his or her conduct created

 5 a substantial and foreseeable risk to a child, which the defendant recklessly

 6 disregarded. See UJI 14-602 NMRA; State v. Arrendondo, 2012-NMSC-013, ¶ 25,

 7 278 P.3d 517. To the extent that this incorporates an objective standard, see State v.

 8 Chavez, 2009-NMSC-035, ¶ 45, 146 N.M. 434, 211 P.3d 891, it does not fall within

 9 the small class of subjective-knowledge offenses for which voluntary intoxication may

10 supply a defense.

11        In summary, because none of the offenses at issue require specific intent or

12 subjective knowledge, Defendant’s voluntary intoxication in no way diminishes the

13 sufficiency of the evidence to support his convictions.           We therefore reject

14 Defendant’s second assertion of error.

15 Jury Instruction on Negligent Child Abuse Resulting in Death

16        Finally, Defendant presents an issue relative to the adequacy of the jury

17 instruction on negligent child abuse resulting in death. The parties agree that the

18 instruction actually given is deficient because it fails to incorporate the requirement

19 that Defendant knew or should have known that his conduct created a substantial and


                                              8
 1 foreseeable risk to Travis specifically. This requirement stems from recent authority,

 2 in which this Court clarified that “a discernable risk of danger to a particular child or

 3 particular children is required to support a conviction for negligent child abuse by

 4 endangerment” and further held that “for a defendant to be criminally liable for child

 5 abuse by endangerment, he or she must be aware of a particular danger to the

 6 identifiable child or children when engaging in the conduct that creates the risk of

 7 harm.” State v. Gonzales, 2011-NMCA-081, ¶ 1, 150 N.M. 494, 263 P.3d 271, cert.

 8 granted, 2011-NMCERT-008, 268 P.3d 514.

 9        Because this issue was not preserved at the trial level, we review for

10 fundamental error. State v. Sandoval, 2011-NMSC-022, ¶ 15, 150 N.M. 224, 258 P.3d

11 1016. Generally, the omission of an essential element from a jury instruction

12 constitutes fundamental error. State v. Sutphin, 2007-NMSC-045, ¶ 16, 142 N.M.

13 191, 164 P.3d 72. “There is, however, an exception to this general rule that failure to

14 include an essential element in an instruction for a crime constitutes fundamental

15 error. This exception applies when the element that was omitted from the instruction

16 was not at issue in the trial.” State v. Lopez, 1996-NMSC-036, ¶ 11, 122 N.M. 63,

17 920 P.2d 1017; see Sutphin, 2007-NMSC-045, ¶ 16 (“[F]undamental error does not

18 occur if the jury was not instructed on an element not at issue in the case. Likewise,

19 when there can be no dispute that the omitted element was established, fundamental


                                               9
 1 error has not occurred and reversal of the conviction is not required.” (citation

 2 omitted)).

 3        We conclude that this case falls within the exception because the undisputed

 4 evidence clearly established that Defendant knew or should have known that his

 5 conduct created a substantial and foreseeable risk to a child (specifically, Travis). As

 6 described in preceding sections of this opinion, a number of witnesses testified to the

 7 events surrounding the fatal accident, including the very high speed at which

 8 Defendant was driving and Defendant’s prior consumption of a significant quantity

 9 of alcohol. Evidence was also presented indicating that Defendant knew or should

10 have known of Travis’s presence because Travis was riding in the rear passenger seat

11 of Defendant’s vehicle. Cf. Gonzales, 2011-NMCA-081, ¶¶ 4, 32 (reversing a

12 conviction for negligent child abuse resulting in death because no evidence was

13 presented to indicate that the defendant knew or should have known of the presence

14 of minors in another vehicle). Finally, evidence was presented indicating that Travis

15 was a minor, and Defendant’s awareness of Travis’s age was never an issue.

16        In his reply brief, Defendant disputes none of the foregoing. Instead, Defendant

17 contends that the omission from the jury instruction should be regarded as

18 fundamental error in light of Defendant’s testimony that he was so intoxicated he did

19 not remember Travis getting into the car. However, as described in the preceding


                                              10
 1 section of this opinion, the applicable standard is an objective one. See UJI 14-602;

 2 Arrendondo, 2012-NMSC-013, ¶ 25. The offense of negligent child abuse resulting

 3 in death does not require evidence of Defendant’s subjective knowledge.

 4 Accordingly, in light of the clear and uncontroverted evidence that Travis was seated

 5 with Defendant in the vehicle at the time of the accident, Defendant’s claim of

 6 ignorance by virtue of voluntary intoxication is immaterial. We therefore conclude

 7 that the jury instruction does not rise to the level of fundamental error.

 8 CONCLUSION

 9        For the foregoing reasons, we affirm.

10        IT IS SO ORDERED.




11
12                                         CYNTHIA A. FRY, Judge

13 WE CONCUR:


14
15 RODERICK T. KENNEDY, Judge


16
17 MICHAEL E. VIGIL, Judge




                                             11
