June 30, 2009 – State of New Mexico v. Jonathan Diggs and Rebecca Miller, No. 27,812

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	June 30, 2009
NO. 27,812
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JONATHAN DIGGS and
REBECCA MILLER,
Defendants-Appellants.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Ross C. Sanchez, District Judge
Gary K. King, Attorney General
Ann M. Harvey, Assistant Attorney General
Santa Fe, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Karl Erich Martell, Assistant Appellate Defender
Santa Fe, NM
for Appellants

OPINION
WECHSLER, Judge.
{1} 	Defendants Jonathan Diggs and Rebecca Miller appeal in advance of their trial
from the district court’s denial of their motions to dismiss on double jeopardy
grounds. We consider whether the New Mexico Constitution and double jeopardy
statute prohibit the State from prosecuting Defendants for child abuse because the
Children, 	Youth 	and 	Families 	Department 	(CYFD) 	previously 	investigated
Defendants for child abuse and the Acoma Pueblo tribal court previously held a
custody hearing on the same issues. 	We hold that there was no double jeopardy
violation and affirm.
BACKGROUND
{2} 	Defendants’ child was treated at Presbyterian Hospital for bruises and broken
bones in different stages of healing, including rib fractures, clavicle fracture, radius
fracture, humerus fracture, and femur fracture over the course of several months. As
a result of these injuries, CYFD representatives contacted Defendants and informed
them that they could avoid placing the child in foster care if they agreed to give the
child’s paternal grandparents guardianship. 	Defendants agreed to temporary
guardianship. 	CYFD found the allegations of child abuse to be unsubstantiated.
However, the child was not returned to Defendants because the child’s paternal

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grandmother, a member of Acoma Pueblo, sought permanent guardianship in the
Acoma Pueblo tribal court. 	The tribal court ultimately returned the child to
Defendants.
{3} 	Several months later, the State charged Defendants with five counts of child
abuse. Defendants filed motions to dismiss on double jeopardy grounds. The district
court denied Defendants’ motions to dismiss and then approved the certification of the
issue for appellate review. Defendants filed for immediate appeal pursuant to State
v. Apodaca, 1997-NMCA-051, ¶ 17, 123 N.M. 372, 940 P.2d 478.
PRE-TRIAL APPEAL
{4} 	We first address the State’s concern that Defendants have no right to a pre-trial
appeal. 	The State argues that Defendants’ pre-trial appeal is inappropriate under
Apodaca because, unlike the defendant in Apodaca, Defendants in this case have not
yet gone through a criminal trial. 	See id. ¶¶ 16-17. 	Apodaca held that a defendant
may directly appeal to this Court a denial of the defendant’s motion to dismiss charges
based on double jeopardy grounds. Id. ¶ 17. In its explanation, Apodaca stated that
certain interests override the unwanted result of “piecemeal appeals” and “justify
invocation of the constitutional right to appeal when final judgment has not yet been
entered[, but s]uch interests must be of the greatest importance.” Id. ¶ 16. Apodaca
further explained that “a defendant’s right not to be subjected to a second trial for the

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same offense could not be remedied once the second trial has taken place.” Id. The
State argues that Defendants do not need protection against being subjected to a
second trial for the same offense because they “have not been subjected to trial on the
child abuse offenses.”
{5} 	The State’s argument is circular in its rationale because it assumes the
conclusion that is the very issue underlying the double jeopardy claim in this
appeal—that Defendants have not previously been placed in jeopardy. If we were to
deny Defendants the ability to file a pre-trial appeal on double jeopardy grounds
because Defendants may not succeed in the claim, we would undermine the holding
in Apodaca. 	Therefore, although we ultimately hold Defendants’ double jeopardy
rights are not violated, we will not disallow Defendants from making the argument.
Further, because even civil actions that are punitive in nature can trigger double
jeopardy violations, we will not prohibit Defendants from making their double
jeopardy argument under Apodaca, even absent a prior criminal trial. See, e.g., State
v. Nuñez, 2000-NMSC-013, ¶ 4, 129 N.M. 63, 2 P.3d 264 (filed 1999) (recognizing
a double jeopardy violation based on a civil vehicle forfeiture).
DOUBLE JEOPARDY
{6} 	The New Mexico Constitution’s double jeopardy clause states that “[n]o person
shall . . . be twice put in jeopardy for the same offense.” N.M. Const. art. II, § 15.

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Our double jeopardy statute similarly states that “[n]o person shall be twice put in
jeopardy for the same crime.” NMSA 1978, § 30-1-10 (1963). Our Supreme Court
provided the basic framework for a double jeopardy analysis in State ex rel. Schwartz
v. Kennedy, 120 N.M. 619, 626, 904 P.2d 1044, 1051 (1995): “(1) whether the [s]tate
subjected the defendant to separate proceedings; (2) whether the conduct precipitating
the separate proceedings consisted of one offense or two offenses; and (3) whether the
penalties in each of the proceedings may be considered ‘punishment’ for the purposes
of the Double Jeopardy Clause.”
{7} 	The Court later modified the third Schwartz requirement in City of Albuquerque
v. One (1) 1984 White Chevy, 2002-NMSC-014, 132 N.M. 187, 46 P.3d 94. 	To
determine whether a sanction is remedial or punitive, White Chevy requires a
reviewing court to evaluate the Legislature’s “purpose in enacting the legislation,
rather than evaluating the effect of the sanction on the defendant. Then the court must
determine whether the sanction . . . was sufficiently punitive in its effect that, on
balance, the punitive effects outweigh the remedial effect.” 	Id. ¶ 11 (internal
quotation marks and citation omitted); see State v. Kirby, 2003-NMCA-074, ¶¶ 19, 22,
133 N.M. 782, 70 P.3d 772 (utilizing the Schwartz test and the White Chevy
modification in a double jeopardy analysis regarding securities violations).
{8} 	Relying on Nuñez, Schwartz, and White Chevy, Defendants argue that the State

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prosecuting Defendants for child abuse would be a violation of their double jeopardy
protections because the sanction imposed by CYFD and the tribal court—removal of
Child from Defendants for fourteen months during the CYFD investigation and the
tribal court proceedings—was more punitive than remedial, and, thus, Defendants “are
now being put in jeopardy a second time for the same acts.” 	We review double
jeopardy issues de novo. 	State v. Saiz, 2008-NMSC-048, ¶ 22, 144 N.M. 663, 191
P.3d 521.
{9} 	Our Supreme Court in Schwartz held that there was no double jeopardy
violation because the civil sanction imposed on the defendant was more remedial than
punitive. 	See Schwartz, 120 N.M. at 635, 904 P.2d at 1060. 	The defendant in
Schwartz was subject to an administrative revocation of his driver’s license, followed
by prosecution for driving while intoxicated. 120 N.M. at 622-23, 904 P.2d at 1047-
48. The Court held that the administrative proceeding and the criminal prosecution
were two separate proceedings and were predicated on the same offense. Id. at 626-
28, 904 P.2d at 1051-53. 	The Court’s analysis therefore rested on whether the
sanction was more remedial or punitive. The Court stated that a sanction that serves
a remedial purpose, even if it also serves a retributive or deterrent one, is not to be
considered punishment for double jeopardy purposes. Id. at 633-34, 904 P.2d at 1058-
59. The Court therefore found that the purpose behind the Implied Consent Act, 1978

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NMSA, §§ 66-8-105 to -112 (1978, as amended through 2007), to enforce regulatory
compliance and protect the public, was remedial and not punitive, regardless of the
deterrent effect on the defendant. Schwartz, 120 N.M. at 635, 904 P.2d at 1060.
{10} 	In White Chevy, the Court again held that there was no double jeopardy
violation because the civil sanction was more remedial than punitive. 	See White
Chevy, 2002-NMSC-014, ¶ 2. In that case, the defendants were convicted on criminal
driving while intoxicated charges, followed by civil forfeiture actions under a city
ordinance. Id. ¶ 4. The Court held that the purpose of the ordinance at issue was to
“protect the health and safety of the citizens . . . by abating motor vehicle nuisances.”
Id. ¶ 6. Because the ordinance was aimed at protecting the public, not punishing a
defendant, the Court held that the sanction was remedial and, therefore, there was no
double jeopardy violation. Id. ¶¶ 18-19. The Court reiterated that “[a]lthough a civil
penalty may cause a degree of punishment for the defendant, such a subjective effect
cannot override the legislation’s primarily remedial purpose.” Id. ¶ 11.
{11} 	Conversely, in Nuñez, the Court held that there was a double jeopardy violation
after determining that a vehicle forfeiture under the Controlled Substances Act,
NMSA 1978, §§ 30-31-1 to -41 (1972, as amended through 2008), was punitive in
nature and, thus, combined with the first two Schwartz requirements, established a
double jeopardy violation. 	Nuñez, 2000-NMSC-013, ¶¶ 55, 59, 94. 	The Supreme

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Court explained that, unlike Schwartz, the applicable statutes in Nuñez, concerning
possession of drugs, “do not concern a regulated lawful activity, but rather an illegal
criminal activity.” 	Id. ¶ 52. 	The Court thus concluded that forfeitures under the
Controlled Substances Act were not designed to be and could never be remedial, but,
instead, “their purposes and intentions are primarily punitive.” Id.
{12} 	In the present case, Defendants were subject to CYFD and tribal court
proceedings regarding custody of the child, followed by the State prosecuting for
criminal child abuse. We need not address the first and second Schwartz requirements
because the third is dispositive in this case: whether the alleged penalty, Defendants’
separation from the child during the CYFD and tribal court proceedings, would be
deemed remedial or punitive upon evaluation of the Children’s Code’s purpose and
effect. 	See White Chevy, 2002-NMSC-014, ¶ 11; Schwartz, 120 N.M. at 626, 904
P.2d at 1051.
{13} 	We begin by evaluating the Legislature’s purpose as enumerated in the
Children’s Code.
A. 	first to provide for the care, protection and wholesome
mental and physical development of children coming within the
provisions of the Children’s Code and then to preserve the unity of the
family whenever possible. 	The child’s health and safety shall be the
paramount concern. Permanent separation of the child from the family,
however, would especially be considered when the child or another child
of the parent has suffered permanent or severe injury or repeated abuse.
It is the intent of the [L]egislature that, to the maximum extent possible,

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children in New Mexico shall be reared as members of a family unit;
B. 	to provide judicial and other procedures through which the
provisions of the Children’s Code are executed and enforced and in
which the parties are assured a fair hearing and their constitutional and
other legal rights are recognized and enforced;
C. 	to provide a continuum of services for children and their
families, from prevention to treatment, considering whenever possible
prevention, diversion and early intervention, particularly in the schools;
D. 	to provide children with services that are sensitive to their
cultural needs;
E. 	to provide for the cooperation and coordination of the civil
and criminal systems for investigation, intervention and disposition of
cases, to minimize interagency conflicts and to enhance the coordinated
response of all agencies to achieve the best interests of the child victim;
and
F. 	to provide continuity for children and families appearing
before the children’s court by assuring that, whenever possible, a single
judge hears all successive cases or proceedings involving a child or
family.
NMSA 1978, § 32A-1-3 (1999) (amended 2009); 2009 N.M. Laws, ch. 239. 	The
Legislature sought to provide for the care, protection, and development of children
and to ensure that procedures were in place to effectuate that goal. 	See id. 	The
Legislature couched each aspect of the purpose in terms of benefits to and protection
of children. 	In short, the Legislature clearly established that the purpose of the
Children’s Code is to ensure that the best interests of children are met. 	See In re
Christobal V., 2002-NMCA-077, ¶ 15, 132 N.M. 474, 50 P.3d 569 (recognizing that

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“the legislative purpose of the Children’s Code is to provide judicial and other
procedures through which the provisions of the Children’s Code are executed and
enforced and in which the parties are assured a fair hearing and their constitutional
and other legal rights are recognized and enforced” (internal quotation marks and
citation omitted)); In re Jade G., 2001-NMCA-058, ¶ 19, 130 N.M. 687, 30 P.3d 376
(stating that the purpose section “is an instruction to interpret the [Children’s] Code
to provide procedures for fair hearings and enforcement of rights”). 	Nowhere in
Section 32A-1-3 does it mention punishment against the parents or guardians.
{14} 	We next consider whether, under the White Chevy test, “the sanction established
by the legislation was sufficiently punitive in its effect that, on balance, the punitive
effects outweigh the remedial effect.” 2002-NMSC-014, ¶ 11. Defendants claim that
their separation from the child for the fourteen months during which the CYFD and
tribal court proceedings occurred constituted a sanction in which the punitive effect
outweighed any remedial effect. Defendants were indeed separated from the child;
however, the separation occurred because Defendant Miller, the primary caretaker at
the time, agreed to temporary guardianship based on the child’s injuries documented
at the hospital.
{15} 	Further, unlike the Controlled Substances Act in Nuñez, the Children’s Code
contemplates regulated lawful activity. 	See Nuñez, 2000-NMSC-013, ¶ 52. The

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Children’s Code does not address sanctions at all, but instead seeks to protect the best
interest of children, more akin to the purpose of protecting the public as stated in
Schwartz and White Chevy. See § 32A-1-3. As discussed, the Legislature intended
for the Children’s Code “to provide for the care, protection and wholesome mental
and physical development of children coming within the provisions of the Children’s
Code and then to preserve the unity of the family whenever possible. 	The child’s
health and safety shall be the paramount concern.” Section 32A-1-3(A). While the
Legislature made clear its intention that the unity of the family be preserved when
possible, it also made clear that the child’s “health and safety [is] the paramount
concern.” Id.
{16} 	In this case, CYFD initiated its investigation because of the child’s injuries and
recommendations from hospital personnel. 	The CYFD proceedings furthered the
Legislature’s purpose of providing for the care and protection of the child and ensured
that the child’s health and safety were the paramount concern. Nothing in the record
indicates that the CYFD investigation or the ensuing temporary guardianship were
triggered out of a desire or intent to punish Defendants. Moreover, although the tribal
court held a hearing on the paternal grandmother’s motion for permanent guardianship
that resulted in longer separation of Defendants from the child, as discussed,
Defendant Miller agreed to the temporary guardianship and, ultimately, regained

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custody of the child. 	We decline to hold that Defendants were punished by the
occurrence of the CYFD and tribal court proceedings.
{17} 	Finally, Defendants argue that, pursuant to Ashe v. Swenson, 397 U.S. 436, 443
(1970), their prosecutions violate the collateral estoppel aspect of double jeopardy
because “both CYFD and [the tribal court] found the abuse allegations to be
unsubstantiated,” CYFD and the State worked together on the CYFD investigation,
and, therefore, the prosecution for child abuse cannot be litigated between these same
parties. Ashe held that “when an issue of ultimate fact has once been determined by
a valid and final judgment, that issue cannot again be litigated between the same
parties in any future lawsuit.” Id. Defendants have not referenced a final judgment
that determined an issue of ultimate fact in the criminal prosecutions. Without any
record to support Defendants’ argument, we will not review their claim. State v. Jim,
107 N.M. 779, 780, 765 P.2d 195, 196 (Ct. App. 1988) (“It is [the] defendant’s burden
to bring up a record sufficient for review of the issues he raises on appeal.”). As such,
Defendants have failed to establish double jeopardy based upon the theory of
collateral estoppel.
CONCLUSION
{18} 	We affirm the district court’s denial of Defendants’ motions to dismiss on

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double jeopardy grounds.
{19} 	IT IS SO ORDERED.
_______________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
______________________________
JONATHAN B. SUTIN, Judge
______________________________
TIMOTHY L. GARCIA, Judge