Opinion Number: 1998-NMSC-042
Filing Date: November 17, 1998
Docket No. 24,471
STATE OF NEW MEXICO,
Plaintiff-Appellee
v.
ROBERT LEON MAGBY,
Defendant-Appellant.
CERTIFICATION FROM THE NEW MEXICO COURT OF APPEALS
William P. Johnson, District Judge
Phyllis H. Subin, Chief Public Defender
Will O'Connell, Assistant Appellate Defender
Santa Fe, NM
for Appellant
Hon. Tom Udall, Attorney General
Steven S. Suttle, Assistant Attorney General
Santa Fe, NM
for Appellee
FRANCHINI, Chief Justice.
{1}
Following a horseback-riding accident, Defendant Robert
Leon Magby was convicted of child abuse resulting in death.
We hold that the trial court improperly refused a jury
instruction tendered by defense counsel, resulting in the
distinct possibility of juror confusion as to the mens rea
necessary for conviction. We therefore reverse Magby's
conviction and remand for a new trial.
FACTS AND PROCEDURAL POSTURE
{2}
Four-year-old Heather Naylor was killed when she fell
from the back of the horse she was riding with her mother,
Cheryl Naylor. According to Cheryl, just prior to the
accident Magby had been "joking around" with her and
"playfully" removed the bridle and bit from her horse, which was standing still at the time. Suddenly, the horse bolted
into a gallop, and without a bridle or bit, Cheryl was
unable to control the animal or slow it down. Heather was
thrown to the ground, and her mother jumped from the horse
to assist her. Heather suffered grievous injuries , and she
died soon after being transported to a nearby hospital.
{3}
The State filed a criminal information against Magby as
follows:
On or about the 10th day of February,
1995, the above-named defendant
negligently caused Heather Naylor, a
child, to be placed in a situation that
might endanger her life or health,
resulting in the death of Heather
Naylor, contrary to NMSA 1978, § 30-6-1
[1973, as amended through 1989].
(Emphasis added.) Magby was charged with abuse of a child
resulting in death, a first-degree felony, contrary to
Section 30-6-1(C). Section 30-6-1(C) provides, in pertinent
part, that "[a]buse of a child consists of a person
knowingly, intentionally or negligently, and without
justifiable cause, causing or permitting a child to be . . .
placed in a situation that may endanger the child's life or
health . . . ."
{4}
There were several eyewitnesses who testified at trial,
but none had any idea why Cheryl's horse had bolted. Cheryl
testified that the horse seemed to be driven by fear.
Neither Cheryl nor any other witness, however, observed
anything that might have spooked the horse. The horse was
uniformly described as a "quiet, gentle horse," "real sweet
and gentle," and "real gentle-natured." One witness,
however, testified that the only horse that is totally
predictable is one that is "stuffed," and Magby's expert
witness, a horse trainer, characterized Magby's act of
removing the bridle and bit as "unwise" though not
"reckless."
{5}
The jury was instructed:
To find that Robert Leon Magby
negligently caused child abuse to occur,
you must find that Robert Leon Magby
knew or should have known of the danger
involved and acted with a reckless
disregard for the safety or health of
Heather Naylor; . . . .
(Emphases added.) See UJI 14-602 NMRA 1998 (negligent child
abuse instruction). As we discuss more fully below, the
trial court refused defense counsel's tender of an instruction defining the term "reckless disregard."
{6}
The trial court, at the request of the State , further
instructed the jury in the following manner:
In addition to the other elements
of child abuse resulting in death, the
state must prove to your satisfaction
beyond a reasonable doubt that the
defendant acted intentionally when he
committed the crime. A person acts
intentionally when he purposely does an
act which the law declares to be a
crime, even though he may not know that
his act is unlawful. Whether the
defendant acted intentionally may be
inferred from all of the surrounding
circumstances, such as the manner in
which he acts, the means used, his
conduct [and] any statements made by
him.
(Emphasis added.) See UJI 14-141 NMRA 1998 (general
criminal intent instruction).
{7}
The jury found Magby guilty of child abuse resulting in
death. Pursuant to NMSA 1978, § 31-18-15(A)(1) (1977, as
amended through 1994) (prescribing basic penalty for non-capital, first-degree felony), the trial judge sentenced
Magby to 18 years' imprisonment, but mitigated the sentence
to 12 years because "Defendant did not have any intent to
injure the victim." See NMSA 1978, § 31-18-15.1 (1979, as
amended in 1993) (allowing for mitigation of up to one-third
of sentence). Magby appealed his conviction , and the New
Mexico Court of Appeals certified the case to this Court.
We accepted certification and now take this opportunity to
clarify the proper jury instructions to be given in
proceedings where a defendant is charged with negligent
child abuse.
DISCUSSION
Standard of Review
{8}
"The propriety of jury instructions given or denied is
a mixed question of law and fact." State v. Salazar, 1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996. "Mixed
questions of law and fact are reviewed de novo." Id.
Whether the Trial Court Erred in Refusing Defense Counsel's Requested Instruction
{9}
Defense counsel tendered the following instruction:
For you to find that the Defendant
acted recklessly in this case, you must
find that he knew or should have known
that his conduct created a substantial
and foreseeable risk, that he
disregarded that risk and that he was
wholly indifferent to the consequences
of his conduct and to the welfare and
safety of others.
This instruction is patterned on the definition of
"recklessly" contained in UJI 14-1704 NMRA 1998 for use in
negligent arson cases. Magby argues that the instruction
was necessary to prevent the jury from convicting him of
mere civil negligence, as opposed to the criminal negligence
standard required by Santillanes v. State, 115 N.M. 215,
219, 849 P.2d 358, 362 (1993).
{10}
In Santillanes, this Court construed Section 30-6-1,
which remained unchanged at the time of Magby's trial, "as
aiming to punish conduct that is morally culpable, not
merely inadvertent." 115 N.M. at 222, 849 P.2d at 365. We
observed that, "when moral condemnation and social
opprobrium attach to the conviction of a crime, the crime
should typically reflect a mental state warranting such
contempt." Id. Thus, we held: "We interpret the mens rea
element of negligence in the child abuse statute, therefore,
to require a showing of criminal negligence instead of
ordinary civil negligence." Id. On this basis, we
announced that, to find a defendant guilty of criminal
negligence in the context of child abuse, the jury must find
that "the defendant knew or should have known of the danger
involved and acted with reckless disregard for the safety or
health of the child." Id. (emphasis added); see UJI 14-602
(tracking this language); see also § 30-6-1(A)(3) (as
amended in 1997) (codifying the foregoing language of
Santillanes as the definition of "negligently"). Accord
State v. Harris, 41 N.M. 426, 428, 70 P.2d 757, 757 (1937)
(holding that conduct "not amounting to a reckless, willful
and wanton disregard of consequences . . . cannot be made
the basis of a criminal action"); State v. Arias, 115 N.M.
93, 96, 847 P.2d 327, 330 (Ct. App. 1993) ("Criminal
negligence includes conduct which is reckless, wanton, or
willful.").
{11}
The facts presented in Santillanes, however, did not
prompt us to consider the need for an instruction defining
"reckless disregard" in cases alleging criminally negligent child abuse. There, we were able to determine, as a matter
of law, that "no rational jury could have concluded that
Santillanes cut his nephew's throat . . . without satisfying
the standard of criminal negligence that we have adopted
today." 115 N.M. at 223, 849 P.2d at 266.
{12}
In this case, Magby calls our attention to the
possibility of juror confusion over the concept of "reckless
disregard" as it is used in UJI 14-602. Magby contends that
UJI 14-602 could confuse jurors on the critical issue of
mens rea because it uses the words "negligently" and "with a
reckless disregard" in the same sentence, essentially
equating the two concepts. See supra ¶ 5 (jury instruction
modeled on UJI 14-602). The dictionary definitions of these
terms are indeed very similar, "negligent" being defined as:
1. Habitually guilty of neglect; lacking
in due care or concern.
2. Extremely careless.
and "reckless" as:
1. a. Heedless or careless. b.
Headstrong; rash.
2. Having no regard for consequences;
uncontrolled; wild.
The American Heritage Dictionary 879, 1088 (1973) (examples
omitted); see Webster's II, New Riverside Dictionary 471, 585
(Office ed. 1984) (defining "negligent" as "Marked by or
inclined to neglect, esp. habitually" and "Extremely
heedless" and defining "reckless" as "Careless" and
"Heedless of consequences: rash").
{13}
Absent express definition of a term in an instruction,
words in jury instructions should usually be understood
according to their ordinary meaning. Cf. Santillanes, 115
N.M. at 368, 512 P.2d at 696 (words in a statute should be
given their ordinary meaning unless the Legislature has
indicated a different intent); State v. Gonzales, 112 N.M.
544, 553, 817 P.2d 1186, 1195 (1991) (noting that words used
in their ordinary sense in jury instructions generally do
not require express definition). Lay dictionaries may be
used to discern the ordinary meaning of words used in jury
instructions. See State v. Puga, 85 N.M. 204, 207, 510 P.2d
1075, 1078 (Ct. App. 1973) ("theft"); State v. Boyles, 24
N.M. 464, 466-67, 174 P. 423, 423 (1918) ("flourish").
Magby argues that the ordinary meaning of the terms
"negligently" and "reckless disregard" may misdirect jurors
as to the standard of negligence required for conviction,
thereby rendering UJI 14-602 fatally ambiguous. We are
persuaded by this argument.
{14}
"Use of an ambiguous jury instruction will constitute
reversible error where a reasonable juror would have been
confused or misdirected by that instruction." State v.
Sosa, 1997-NMSC-032, ¶ 25, 123 N.M. 564, 943 P.2d 1017. If
a jury instruction is susceptible to more than one
interpretation, then the reviewing court must "evaluate
whether another part of the jury instructions satisfactorily
cures the ambiguity." State v. Parish, 118 N.M. 39, 42, 878
P.2d 988, 991 (1994). An instruction is fatally ambiguous
when there is "no way to determine" whether the jury had a
correct or incorrect understanding of the instruction. Cf.
id.
{15}
In view of the foregoing dictionary definitions of
"negligent" and "reckless," there is a distinct possibility
that the jury understood the applicable negligence standard
to criminalize "careless" conduct or perhaps only "extremely
careless" conduct. Neither understanding is correct. See
State v. Yarborough, 1996-NMSC-068, ¶ 21, 122 N.M. 596, 930
P.2d 131 (merely careless driving cannot form basis for
involuntary manslaughter conviction, which requires showing
of criminal negligence); cf. Paiz v. State Farm Fire and
Cas. Co., 118 N.M. 203, 211, 880 P.2d 300, 308 (1994)
(holding in a punitive damages case that "a defendant acting
with gross negligence . . . cannot, solely because the
defendant acted with such negligence, be regarded as having
a culpable or 'evil' state of mind"). Under the lone
instruction given to the jury, there is no reason to suppose
the jury correctly interpreted UJI 14-602. It is equally
likely that the jurors understood the terms "negligently"
and "reckless disregard" to imply some degree of
carelessness as it is that they recognized the necessity of
finding a culpable mental state in the defendant.
{16}
Defense counsel's tendered instruction would have cured
this ambiguity by defining the concept "reckless disregard"
in detail and in a separate instruction from the confusing
reference to "negligently" in UJI 14-602. In this way, the
distinct possibility of juror confusion over the mens rea
necessary for conviction could have been avoided. We
therefore hold that the trial court improperly refused
defense counsel's curative instruction. See State v.
Mankiller, 104 N.M. 461, 468, 722 P.2d 1183, 1190 (Ct. App.
1986) (further instruction necessary where element of
offense requires amplification or definition in order to be
understood); see also State v. Carnes, 97 N.M. 76, 78-79,
636 P.2d 895, 897-98 (Ct. App. 1981) (requested instruction
need not be given where jurors could properly apply common
meaning of terms).
{17}
We note that virtually every uniform jury instruction
that utilizes the terms "reckless" or "recklessly" provides for an express definition of those terms. See UJI 13-861
NMRA 1998 (punitive damages in contracts and UCC sales
cases); UJI 13-1009, -1011, -1012 NMRA 1998 (defamation);
UJI 13-1827 NMRA 1998 (punitive damages generally); UJI 14-240, -240A, -241 (homicide or great bodily injury by
vehicle); UJI 14-342, -343, -344 NMRA 1998 (shooting at or
from a motor vehicle); UJI 14-1703, -1704 NMRA 1998
(negligent arson); UJI 14-4504 NMRA 1998 (reckless driving).
But see UJI 13-1628 NMRA 1998 (intentional infliction of
emotional distress); UJI 13-1633 NMRA 1998 (fraud); UJI 14-602, -603, -604, -605 NMRA 1998 (negligently causing or
permitting child abuse). Of the instructions that do not
expressly define "reckless" or "recklessly," only UJI 14-602
through -605 involve considerations of negligence. An
express definition of "reckless disregard" would be
particularly appropriate for these instructions because the
distinction between criminal negligence and civil negligence
turns on an understanding of the concept of recklessness.
See Harris, 41 N.M. at 428, 70 P.2d at 757 (distinguishing,
somewhat tautologically, between criminal and civil
negligence as follows: criminal negligence involves
"conduct . . . so reckless, wanton, and willful, as to show
an utter disregard for the safety of [others]," while mere
civil negligence is conduct "not amounting to a reckless,
willful and wanton disregard of consequences . . . ."); see
also UJI 14-1704 committee commentary ("The concept of
recklessness is the same as criminal negligence."). We
therefore direct the UJI Criminal Committee to formulate a
definition of "reckless disregard" similar to the one
tendered by defense counsel in this case for use in
negligent child abuse cases in the future.
{18}
We stress that our holding on the negligent child abuse
instruction tendered in this case is not applicable
retroactively to other cases. As in Santillanes, our
holding has only prospective application to cases in which a
verdict has not been reached and those cases on direct
review in which the issue was raised and preserved below.
See 115 N.M. at 223-25, 849 P.2d at 366-68. It therefore
has no bearing on cases in which a jury has already rendered
a verdict, unless a proper curative instruction was tendered
and refused. See Carnes, 97 N.M. at 78, 636 P.2d at 897 (no
error in failure to give definitional instruction where
party has not requested such an instruction).
{19}
We recognize, as the State points out , that UJI 14-602
as currently written tracks the statutory elements of the
offense defined in Section 30-6-1(C) and that, except for
its omission of the adjective "criminal" before
"negligence," the instruction reflects the language of
Santillanes. See State v. Fuentes, 85 N.M. 274, 276, 511
P.2d 760, 762 (Ct. App. 1973) (instructions regarding required mens rea are generally sufficient when phrased in
terms of the applicable statute, provided the statute is
read in light of decisional law on criminal intent). We are
also aware of the general rule that uniform jury
instructions are presumed to be correct. See State v.
Wilson, 116 N.M. 793, 796, 867 P.2d 1175, 1178 (1994)
("[T]his Court's adoption of uniform jury instructions
proposed by standing committees of the Court establishes a
presumption that the instructions are correct statements of
the law . . . ."). Given the distinct possibility of juror
confusion discussed above, however, this case illustrates
that there are exceptions to the foregoing presumptions and
that this is a proper case in which to modify UJI 14-602.
See id. at 795, 867 P.2d at 1177 ("The Supreme Court will
amend, modify, or abolish uniform jury instructions when
such instructions are erroneous."); see also Ruggero J.
Aldisert, Logic for Lawyers: A Guide to Clear Legal
Thinking 190-91 (1992) (discussing the maxim: "The
exception proves the rule").
{20}
The State also argues that Magby "withdrew" his
tendered instruction defining "reckless disregard" and that,
therefore, this issue was not properly preserved for review
in this Court. Contrary to the State's argument, however,
the record shows that the trial court individually marked
Magby's requested instructions "Refused," not "Withdrawn,"
signing his name below each such designation. Moreover, as
the State acknowledges, there was considerable disagreement
between the parties concerning the proper instructions to
give the jury, and each side had the opportunity to contest
the other's requested instructions, with the trial court
ultimately concluding, "I'm going to stick with the UJI."
Based on these circumstances, we conclude that this issue
was properly preserved. See Garcia ex rel. Garcia v. La
Farge, 119 N.M. 532, 540, 893 P.2d 428, 436 (1995)
(preservation requirement should be applied with its
purposes in mind, which are to alert the trial court to
error in time for correction and to give opposing counsel
fair opportunity to meet the case presented by the other
side).
Whether Instructing the Jury on General Criminal Intent
Amounts to Reversible Error
{21}
Magby argues that the trial court should not have
instructed the jury on general criminal intent because the
State's theory of prosecution throughout the case was
exclusively that Magby's conduct was negligent. The State
concedes that the instruction should not have been given,
but contends that the error was harmless. In light of our
holding on the failure of the trial court to accept the
criminal negligence instruction tendered by defense counsel, it would be a speculative exercise for us to try to
determine whether the intent instruction was only harmless
error. We therefore do not reach this issue.
CONCLUSION
{22}
The trial court improperly refused defense counsel's
tendered instruction defining the term "reckless disregard"
in UJI 14-602. We therefore reverse Magby's conviction and
remand for a new trial. UJI 14-602 through -605 are to be
modified by the UJI Criminal Committee to include a
definition of "reckless disregard." In the meantime, the
instruction tendered by defense counsel in this case will
serve as an adequate definition of that term.
{23}
IT IS SO ORDERED.
__________________________________
GENE E. FRANCHINI, Chief Justice
WE CONCUR:
________________________________
JOSEPH F. BACA, Justice
________________________________
PAMELA B. MINZNER, Justice
________________________________
PATRICIO M. SERNA, Justice
________________________________
DAN A. MCKINNON, III, Justice