May 8, 2019- State of New Mexico v. Kristina Kennedy, No. A-1-CA-37560

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Court of Appeals of New Mexico
Filed 5/8/2019 1:46 PM

NM

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

STATE OF NEW MEXICO,

Plaintiff-Appellee,

y. . No. A-1-CA-37560

KRISTINA KENNEDY,
Defendant-Appellant.

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

Hector H. Balderas, Attorney General
Santa Fe, NM

for Appellee
Bennett J. Baur, Chief Public Defender
Gregory B. Dawkins, Assistant Appellate Defender
Santa Fe, NM
for Appellant
| MEMORANDUM OPINION
HANISEE, Judge.
a} Defendant, Kristina Kennedy, appeals her conviction for serving or giving
alcoholic beverages to a minor, in violation of the Liquor Control Act. See NMSA

1978, § 60-7B-1(A)(1) (2013). We issued a notice of proposed summary disposition

proposing to affirm, and Defendant has responded with a timely memorandum in

Mark Remon

1 opposition and motion to amend the docketing statement. We have considered
2 Defendant's arguments and remain unpersuaded that our initial proposed disposition
3 was incorrect. We therefore affirm.
4 	{2} 	We have already outlined the relevant procedural and factual background in
5 our notice of proposed summary disposition. Therefore, in order to avoid unnecessary
6 repetition, we will focus instead on the contents of Defendant's memorandum in
7 opposition, discussing only such facts as are relevant to her arguments. 	.
8 	{3} 	Defendant continues to argue that serving or giving alcohol to a minor with the
9 consent of the minor's parent or guardian is not a violation of Liquor Control Act. ·
10 	[MIO 6-8] Defendant's argument raises an issue of statutory interpretation, which we
11 	review de novo. See State v. Branch, 2018-NMCA-031, ,, 12-13, 417 P.3d 1141
12 (reviewing the defendant's argument that the State was.required to prove specific
13 	intent to frighten or put the victim in fear of immediate battery in order to convict him
14 	of aggravated assault as ultimately raising a question of interpretation of the assault
15 	statute, subject to de novo review); see also State v. Myers, 2009-NMSC-016,, 13,
16 	146 N.M. 128,207 P.3d 1105 (setting forth standards of review for a case involving
17 both a sufficiency claim and an issue of statutory construction).
18 	{4} 	Defendant relies on Section 60-7B-1 (B )( 1), which provides that "it is not a
_19 	violation of the Liquor Control Act ... when a parent, legal guardian or adult spouse
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1 of a minor serves alcoholic beverages to that minor on real property, other than .
2 licensed premises, under the control of the parent, legal guardian or adult spouse[.]"
3 This statutory provision, by its terms, does not apply to Defendant, however, as no
4 evidence was presented at trial that Defendant was a parent, legal guardian, or adult
5 spouse of L.J.
6 {5} 	To the extent Defendant argues that Section 60- 7B-1 (B )( 1) should be read to
7 apply in circumstances in which a parent, legal guardian, or adult spouse gives
8 consent to another person to serve or give alcohol to a minor, we disagree. The plain
9 language of this section limits its application only to instances in which those persons
10 specifically designated serve or give alcohol to a minor. See State v. 	Gonzales,
11 	2017-NMCA-080, ,-r 19, 406 P.3d 534 (stating that the primary goal of statutory
12 construction is to discern legislative intent,.which we do by looking at the language
13 	used in the statute and the plain meaning of that language); State v. 	Wilson,
14 2010-NMCA-018, ,-r 9, 147 N.M. 706, 228 P.3d 490 ("If the language of the statute
15 	is clear and unambiguous, we must give effect to that language and refrain from
16 further statutory interpretation.") (internal quotation marks and citation omitted).
17 Defendant's proposed reading of Section 60- 7B-1 (B )( 1) would require that we read
18 	language into an unambiguous statute that is not there. 	See State v. 	Trujillo,
19 	2009-NMSC-012, ,-r 11, 146N.M. 14, 206P.3d 125 (stating that appellate courts "will
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1 not read into a statute any words that are not there, particularly when the statute is
2 complete ~nd makes sense as written").
3 {6} 	Defendant asserts that this construction of the statute leads to an absurd result
4 because a parent can serve alcohol to a minor but cannot delegate that act to a third
5 party and argues that the legislature could not have intended that criminal liability be
6 imposed when a third party pours an alcoholic drink for a minor when the parent is
7 present and gives consent. [RP 7] We cannot say, however, that it is absurd for the
8 legislature to exempt only those persons specifically named in Section 60-7B-1 (B )( 1)
9 from criminal liability under the Liquor Control Act for giving or serving alcoholic
10 beverages to a minor. Rather, it gives meaning to the Legislature's inclusion of the
11 	words "under the control of the parent, legal guardian or adult spouse" in the statute
12 as relates to giving or serving alcohol to a minor, which carries out the apparent intent
13 	that more than the mere consent and presence of the parent, legal guardian, or adult
14 spouse of the minor is required. Accordingly, since the plain language of the statute
15 	is not ambiguous and a strict interpretation of its terms does not lead to an absurd
16 result, we reject Defendant's argument.
17 {7} 	Defendant next argues, pursuant to a motion to amend the docketing statement,
18 that the district court committed fundamental error in not instructing the jury on her
19 affirmative defense that she had the consent of the minor's parent [MIO 4-8] We .
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1 disagree. As discussed above, the consent of a minor's parent is not a defense to a
2 violation under Section 60- 7B-l. Accordingly, it was not fundamental error for the
3 district court not to instruct the jury on Defendant's theory of the case. See State v.
4 Nieto, 2000-NMSC-03l,117, 129 N.M. 688, 12 P.3d 442 ("A trial court's refusal to
5 submit a jury instruction is not error if the submission of the instruction would
6 mislead the jury by promoting a misstatement of the law."). We therefore deny the
7 motion to amend the docketing statement, as this issue is not viable. See State v.
8 Ibarra, 1993:..NMCA-040, 113, 116 N.M. 486,864 P.2d 302 (denying the motion to
9 amend the docketing statement where the issue the defendant sought to raise was not
10 viable).
11 	{8} 	Finally, Defendant continues to argue that the evidence was insufficient to
12 	support her conviction. [MIO 8-9] "The test for sufficiency of the evidence is whether
13 	substantial evidence of either a direct or circumstantial nature exists to .support a- 	{ 	. 	.
14 verdict of guilty beyond a reasonable doubt with respect to every element essential
15 	to ·a conviction." State v. Torrez, 2013-NMSC-034, 1 40, 305 P.3d 944 (internal
16 quotation marks 	and citation omitted). "Substantial evidence 	is that which a
17 reasonable 	mind 	accepts 	as 	adequate 	to 	support 	a 	conclusion." 	State 	v.
18 Huerta-Castro·, 2017-NMCA-026, 1 24, 390 P.3d 185. "This Court evaluates the
19 sufficiency of the evidence in a criminal case by viewing the evidence in the light
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1 most favorable to the verdict, resolving all conflicts and indulging all permissible
2 inferences in favor of upholding the conviction, and disregarding all evidence and
3 inferences to the contrary." State v. Trujillo, 2012-NMCA-092, ,-r 5, 287 P.3d 344.
4 {9} 	As discussed in the notice of proposed summary disposition, the evidence was
5 sufficient show that Defendant gave an alcoholic beverage to L.J, that L.J was a
-<·6 minor at the time, and that Defendant knew that L.J. was a minor. See § 60-7B-
7 	l(A)(l) (stating that it shall be a violation of the Liquor Control Act for a person to
8 sell, serve or give alcoholic beverages to a minor or permit a minor to consume
9 alcoholic beverages on the licensed premises if the person knows or has reason to
10 know that the person is violating the provisions of the Section 60-7B-1 ); see als·o §
11 	60-7B-l(D) (stating that the term "minor" as used in the Liquor Control Act means
12 a person under twenty-one years of age). [RP 157] Accordingly, the evidence was
13 	sufficient to support Defendant's conviction.
14 CONCLUSION
15 	{10} 	For these reasons, we affirm Defendant's conviction.
16 	{11}
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IT IS SO ORDERED.
J. MILES HANISEE, Judge
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WE CONCUR:
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Jungian way
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LINDA M. VANZI, Judge
SULAR
4 5 JENNIFER L. ATTREP, Judge
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