September 16, 2019- State of New Mexico v. Loretta Bowker, No. A-1-CA-36765

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

6)

7
8)

id
11
12
13
14
15
16)
17
18)
19)
20
21

22

Corrections to this opinion not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM
Compilation Commission. The Court will ensure that the electronic version of this opinion is updated accordingly in Odyssey.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico
STATE OF NEW MEXICO, Filed 9/16/2019 9:10 AM
Plaintiff-A ppellee, Ad. ~fe4
Mark Reynolds
v. No. A-1-CA-36765
LORETTA BOWKER,
Defendant- Appellant.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY

T. Glenn Ellington, District Judge

Hector H. Balderas, Attomey General

Maris Veidemanis, Assistant Attomey General
Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender

B. Douglas Wood III, Assistant Appellate Defender
Santa Fe, NM
for Appellant

MEMORANDUM OPINION
HANISEE, J udge.

{1} Defendant Loretta Bowker appeals her conviction for aggravated battery with
a deadly weapon, in violation of NMSA 1978, § 30-3-5(C) (1969), for hitting Johsie
Rosales (Victim), a Trader Joe’s employee, with her automobile twice in a Trader

Joe’s parking lot. Defendant argues on appeal that the district court: (1) inadequately

2
instructed the jury as to the elements of aggravated battery; and (2) erred in not re-	1
questioning the jurors regarding their outside knowledge of the case immediately	2
following an eight-day delay between jury selection and trial proceedings. We	3
affirm.	4
BACKGROUND	5
{2} 	Given that the parties are familiar with the facts and details of this case, and	6
that we affirm for substantially the same reasons as those relied on by the district	7
court, 	we 	only 	briefly 	set 	forth 	pertinent 	facts 	and 	applicable 	law 	in 	this	8
memorandum opinion. See Rule 12-405(B) NMRA (providing that appellate courts	9
may dispose of a case by non-precedential order, decision, or memorandum opinion	10
under certain circumstances); State v. Gonzales, 1990-NMCA-040, ¶ 48, 110 N.M.	11
218, 794 P.2d 361 (“[M]emorandum opinions are not meant to be cited as controlling	12
authority because such opinions are written solely for the benefit of the parties” and	13
“[s]ince the parties know the detail of the case, such an opinion does not describe at	14
length the context of the issue decided[.]”).	15
{3} 	As stated, Defendant was convicted of aggravated battery with a deadly	16
weapon for hitting Victim twice with her automobile in the store’s parking lot after	17
Defendant refused to produce a receipt for her bag of groceries.	18
{4} 	The two issues raised by Defendant on appeal are whether the district court	19
erred by (1) failing to submit Defendant’s proposed amended version of UJI 14-322	20

3
NMRA, the jury instruction stating the elements of an aggravated battery conviction,	1
to the jury; and (2) refusing to ask the jurors immediately before trial if they had	2
been exposed to a five-month-old news article regarding the circumstances of the	3
case contrary to the district court’s instructions to avoid discovering information	4
about 	the 	case 	during 	the 	week-long 	recess. 	Regarding 	the 	challenged 	jury	5
instruction after the close of evidence at trial, Defendant requested her amendment	6
to UJI 14-322, adding the following italicized language:	7
[D]efendant touched or applied force to [Victim] by striking him with	8
a car. [D]efendant used a car. A car is a deadly weapon only if you find	9
that a car, when used as a weapon, could cause death or great bodily	10
harm, and that [D]efendant did use the car in a manner capable of	11
causing death or great bodily harm in this case[.]	12
The State objected to the amendment based upon its addition of an “actual use”	13
element to the aggravated battery charge. The district court denied Defendant’s	14
request, and the jury instruction was given to the jury without the language requested	15
by Defendant.	16
DISCUSSION	17
Standard of Review – Jury Instruction	18
{5} 	As Defendant preserved the jury instruction issue, we review the jury	19
instructions for reversible error. See State v. Benally, 2001-NMSC-033, ¶ 12, 131	20
N.M. 258, 34 P.3d 1134. Under this standard, “we seek to determine whether a	21

4
reasonable juror would have been confused or misdirected by the jury instruction.”	1
Id. (internal quotation marks and citation omitted).	2
The Trial 	Court Properly Gave The Uniform Jury Instruction Without	3
Modification	4
{6} 	The district court did not commit reversible error by denying Defendant’s	5
requested modification to UJI 14-322. “Uniform jury instructions are presumed to	6
be correct.” State v. Ortega, 2014-NMSC-017, ¶ 32, 327 P.3d 1076. “When a	7
uniform jury instruction is provided for the elements of a crime, generally that	8
instruction must be used without substantive modification.” Jackson v. State, 1983-	9
NMSC-098, ¶ 5, 100 N.M. 487, 672 P.2d 660. “[A]n elements instruction may only	10
be altered when the alteration is adequately supported by binding precedent or the	11
unique circumstances of a particular case, and where the alteration is necessary in	12
order to accurately convey the law to the jury.” UJI Crim. General Use Note NMRA.	13
Here, the district court gave the unaltered jury instruction, and thus it is presumed to	14
be correct. Applying this presumption, we ask whether a reasonable juror would	15
have been confused or misdirected because the instructions, “through omission or	16
misstatement, fail to provide the juror with an accurate rendition of the relevant law.”	17
State v. Samora, 2016-NMSC-031, ¶ 27, 387 P.3d 230 (internal quotation marks and	18
citation omitted). Defendant offers nothing to support such a conclusion.	19
{7} 	First, there is no applicable precedent raised by Defendant that supports	20
modification of the jury instruction. We are not convinced by Defendant’s use of	21

5
State v. Traeger, 2001-NMSC-022, 130 N.M. 618, 29 P.3d 518, for the proposition	1
that “[t]he jury instruction given . . . was deficient in only requiring the jury find that	2
the car has the potential to be a deadly weapon and in not requiring [it] to find if	3
[Defendant’s] manner of use of the automobile rendered it [a] deadly weapon in this	4
case.” 	The 	court 	in 	Traeger 	found 	the 	instruction 	given 	to 	be 	excessively	5
complicated because it combined two separate elements—that the defendant hit	6
victim with a baseball bat and that the baseball bat was an object that when used as	7
a weapon, could cause death or serious injury—into an awkwardly phrased single	8
element. See id. ¶¶ 7, 22. Here, the jury instruction separates the elements—by	9
asking the jury to determine whether (1) Defendant touched or applied force to	10
Victim by striking him with the car, (2) Defendant used a car, and (3) that a car is a	11
deadly weapon that could cause death or great bodily harm. Therefore, the	12
complication in Traeger does not exist here. Furthermore, the court in Traeger	13
identified that the modified UJI (used in this case but not used in the district court	14
proceedings in Traeger) resolved the issue it confronted therein. See id. ¶ 24.	15
{8} 	Second, Defendant fails to establish that the instruction given misstates the	16
law, in order to persuade us that unique circumstances exist in this case to warrant	17
the proposed amendment to UJI 14-322, or to offer a basis upon which juror	18
confusion may have arisen based upon the instruction given. See Samora, 2016-	19
NMSC-031, ¶ 27. We conclude, therefore, that the district court did not commit	20

6
reversible error by denying Defendant’s request that his amended jury instruction be	1
provided to the jury.	2
Standard of Review – Voire Dire	3
{9} 	This Court applies “an abuse of discretion standard of review to the district	4
court’s determination of how voir dire should be conducted[.]” State v. Johnson,	5
2010-NMSC-016, ¶ 34, 148 N.M. 50, 229 P.3d 523 (internal quotation marks and	6
citation omitted).	7
The Trial Court Did Not Abuse Its Discretion by Refusing to Question Jurors	8
Twice About Media Exposure	9
{10} 	A trial court is “given broad discretion in overseeing the voir dire process.”	10
State v. Martinez, 2002-NMCA-036, ¶ 31, 131 N.M. 746, 42 P.3d 851. “If the	11
questions allowed are sufficient to probe juror bias on a specific issue, the court’s	12
refusal to allow additional fact-specific questions does not amount to an abuse of	13
discretion.” State v. Sosa, 1997-NMSC-032, ¶ 14, 123 N.M. 564, 943 P.2d 1017.	14
Importantly, “[w]e presume that the jurors followed the instructions given by the	15
court.” Kilgore v. Fuji Heavy Indus. Ltd., 2009-NMCA-078, ¶ 26,146 N.M. 698, 213	16
P.3d 1127, including that they will not “discuss [the] case or the evidence with	17
anyone,” and that they will “keep an open mind and not decide any part of the case	18
until the entire case has been completed and submitted.” State v. Case, 1984-NMSC-	19
012, ¶ 23, 100 N.M. 714, 676 P.2d 241 (internal quotation marks and citation	20
omitted). Mere exposure to publicity alone does not establish prejudice nor a	21

7
presumption of prejudice related to venire members. State v. McGuire, 1990-NMSC-	1
067, ¶ 22, 110 N.M. 304, 795 P.2d 996.	2
{11} 	Here, even given the delay between jury selection and trial proceedings, the	3
district court did not abuse its discretion by refusing to again ask the jurors, this time	4
immediately before trial, whether they had read a five-month-old news story about	5
the case when the court already instructed the jury to avoid learning outside	6
information about the case before trial and previously inquired during voir dire	7
whether the jurors had any prior knowledge of the case, which the jurors denied. It	8
is presumed that the jurors followed the initial instruction of the district court, see	9
State v. Gonzales, 1992-NMSC-003, ¶ 35, 113 N.M. 221, 824 P.2d 1023 (“The jury	10
is presumed to 	follow 	the 	[district] 	court’s instructions.”), overruled 	on 	other	11
grounds by State v. Montoya, 2013-NMSC-002, ¶ 2, 306 P.3d 426, especially	12
considering Defendant failed to produce any evidence to show that either the jurors	13
had been exposed to any media publicity on the case or that the jurors were tainted	14
by any such information.	15
CONCLUSION	16
{12} 	Based upon the reasoning set forth above, we affirm.	17
{13} 	IT IS SO ORDERED.	18
_____________________________	19
J. MILES HANISEE, Judge	20

WE CONCUR:

STINA BOGARDUS, Judge

ZACHARAY A. IVES, Judge