Office of the Director New Mexico
10:18:03 2021.07.27 Compilation
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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number: 2021-NMSC-023
Filing Date: April 26, 2021
No. S-1-SC-37893
STATE OF NEW MEXICO,
Plaintiff-Respondent,
v.
SANDI TAYLOR and MARY TAYLOR,
Defendants-Petitioners.
ORIGINAL PROCEEDING ON CERTIORARI
Donna Mowrer, District Judge
Released for Publication August 3, 2021.
Harmon, Barnett & Morris, P.C.
Tye C. Harmon
Clovis, NM
Herrmann and Sumrall, P.C.
Benjamin E. Herrmann
Clovis, NM
for Petitioners
Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM
for Respondent
OPINION
BACON, Justice.
{1} Defendants Sandi Taylor and Mary Taylor were each convicted of two counts of
child abuse after they failed to remove two children from a hot vehicle. Sandi was
sentenced to thirty years of imprisonment, and Mary was sentenced to thirty-six years of
imprisonment. They have appealed their convictions and seek release under NMSA
1978, Section 31-11-1(C) (1988), while their appeal is pending. The district court denied
their motion for release pending appeal, and the Court of Appeals, without analysis,
affirmed the district court’s decision. This Court issued an order remanding the matter of
release pending appeal to the district court and instructing the district court to release
Defendants on conditions no greater than those entered pretrial. We issue this opinion
to explain our ruling in this matter.
{2} We adopt the analysis provided by the Court of Appeals in State v. House, 1996-
NMCA-052, 121 N.M. 784,
918 P.2d 370, for determining whether a defendant’s appeal
raises a substantial question under Section 31-11-1(C)(2). However, we expressly reject
any suggestion from House that release pending appeal under Section 31-11-1(C) is
not mandatory where defendants meet all of the requirements described by Section 31-
11-1(C). See
1996-NMCA-052, ¶¶ 8, 15. Defendants who meet all of the requirements
of Section 31-11-1(C) are entitled to release pending appeal.
{3} We conclude that Defendants meet Section 31-11-1(C)’s requirements and are
entitled to release pending the resolution of their appeal on the merits. We hold that the
Court of Appeals erred, and we reverse the Court of Appeals’ decision.
I. BACKGROUND
{4} Defendants operated a daycare. In July 2017, Defendants drove the daycare
children, twelve in total, in two cars, to a park for lunch. Defendants did not have
permission from the Children, Youth, and Families Department (CYFD) to drive the
daycare children.
{5} When they returned to the daycare center, Sandi tended to one of the children
from her vehicle who needed a change of underwear. Some of the children in her
vehicle exited on their own and went into the daycare center. Mary drove a separate
vehicle, and she and all the children from her vehicle went into the daycare center. Two
children, however, remained in Sandi’s vehicle. Testimony at trial revealed that each
Defendant believed the other had brought the two children into the daycare center.
Defendants did not conduct a headcount of the children at any point, and they did not
maintain proper caregiver-to-child ratios.
{6} Approximately two hours and forty minutes later, Sandi went to her vehicle and
discovered the two children inside. When she found them, she and Mary removed the
children from the vehicle, called 911, and attempted to revive the children. The outdoor
temperature was ninety-one degrees. One child died, and the other child, whose body
temperature was 108.3 degrees when the paramedics arrived, suffered serious
neurological injuries. Defendants were charged with child abuse resulting in great bodily
harm by reckless disregard, contrary to NMSA 1978, Section 30-6-1(D), (E) (2009), and
child abuse resulting in death by reckless disregard, contrary to Section 30-6-1(D), (F).
Following a jury trial, both Defendants were convicted of child abuse for the death of
one child and great bodily harm to the other child.
{7} Following conviction, Defendants petitioned the district court pursuant to Rule 12-
205(B) NMRA and Section 31-11-1(C), for release pending appeal. The district court
denied Defendants’ motion, finding that Defendants failed to “raise[] a substantial
question of law or fact likely to result in reversal or an order for a new trial,” as required
under Section 31-11-1(C)(2). Consistent with Rule 12-205(B), Defendants appealed that
decision to the Court of Appeals through a motion to review conditions of release. See
Rule 12-205(B). The Court of Appeals concluded, without analysis, that Defendants
failed to satisfy the requirements of Rule 12-205 and Section 31-11-1(C) and denied
Defendants’ motion to review conditions of release. Subsequently, Defendants
petitioned this Court for certiorari, pursuant to Rule 12-205(C).
II. DISCUSSION
A. Requirements for Release Pending Appeal Under Section 31-11-1(C)
{8} We determine whether Defendants are entitled to release pending appeal under
Section 31-11-1(C), which states,
If a defendant is convicted of a noncapital offense other than a
violent offense and is sentenced to a term of imprisonment not suspended
in whole, he shall not be entitled to release pending appeal unless the
court finds:
(1) by clear and convincing evidence that the person is not likely
to flee or pose a danger to the safety of any other person or the
community if released; and
(2) that the appeal is not for the purpose of delay and raises a
substantial question of law or fact likely to result in reversal or an order for
a new trial.
{9} Defendants were convicted of noncapital, nonviolent offenses. See § 31-11-1(D)
(enumerating the offenses that are considered “violent” for purposes of applying
Subsection C). Both parties agree that Defendants, by clear and convincing evidence,
are not considered flight risks and do not pose a danger to the community. Additionally,
the district court found, and the State does not contest, that Defendants do not bring an
appeal for purpose of delay. Thus, we review only whether their appeal raises a
“substantial question of law or fact” that if resolved in favor of Defendants would “likely
. . . result in reversal or an order for a new trial.” See § 31-11-1(C)(2).
1. Standard of review
{10} Whether an appeal raises a “substantial question of law or fact likely to result in
reversal or an order for a new trial” under Section 31-11-1(C)(2) is a question of law.
See Sanchez, 2020-NMSC-017, ¶ 12. This Court reviews questions of law de novo. Id.
2. To be entitled to release, Section 31-11-1(C)(2) requires an appeal that
raises a substantial question
{11} In New Mexico, there is no constitutional right to release pending appeal. See
N.M. Const. art. II, § 13; House, 1996-NMCA-052, ¶ 6. However, release pending
appeal is not out of reach to every convicted defendant. House,
1996-NMCA-052, ¶ 6.
Instead, “a limited and conditional right” to release pending appeal is available to those
defendants who satisfy the requirements of Section 31-11-1(C), thereby ensuring that
society is protected and the appeal preserves the “effective and efficient administration
of justice.” House,
1996-NMCA-052, ¶¶ 6, 9; State v. Rivera,
2004-NMSC-001, ¶ 26,
134 N.M. 768,
82 P.3d 939 (“[D]efendants are given a qualified opportunity for release
pending appeal.”).
{12} In New Mexico, Section 31-11-1(C) governs this limited right and has previously
been interpreted by our Court of Appeals in House, 1996-NMCA-052. The House Court
adopted the analytical framework described by United States v. Affleck,
765 F.2d 944,
952 (10th Cir. 1985), and originally put forward by United States v. Miller,
753 F.2d 19,
23-24 (3d Cir. 1985), to guide courts considering whether a defendant shall be released
pending appeal. See
1996-NMCA-052, ¶¶ 14-15. This framework requires a defendant
to prove and the court to find
(1) that the defendant is not likely to flee or pose a danger to the safety of
any other person or the community if released;
(2) that the appeal is not for purpose of delay;
(3) that the appeal raises a substantial question of law or fact; and
(4) that if that substantial question is determined favorably to defendant on
appeal, that decision is likely to result in reversal or an order for a new trial
of all counts on which imprisonment has been imposed.
Miller, 753 F.2d at 24.
{13} The House Court also adopted Affleck’s interpretation of “substantial question.”
1996-NMCA-052, ¶ 14. Under Affleck’s interpretation, “[a] substantial question is a close
question or one that very well could be decided the other way.”
Id. (quoting Affleck,
765
F.2d at 952 (internal quotation marks omitted)). A substantial question “is one of more
substance than would be necessary to a finding that it was not frivolous.” Affleck,
765
F.2d at 952 (internal quotation marks and citation omitted). A substantial question “is
either novel, which has not been decided by controlling precedent, or which is fairly
doubtful.”
Id. (internal quotation marks and citation omitted) (quoting Miller,
753 F.2d at
23).1 “[A] question ‘which has not been decided by controlling precedent’ may not be
1Affleck also recognized that United States v. Handy defines a “substantial question” as “fairly debatable,”
considering it synonymous with “fairly doubtful.”
765 F.2d at 952 n.12 (citing
761 F.2d 1279, 1281 (9th
Cir. 1985).
‘substantial’ under [the statute].”
Id. (quoting United States v. Giancola,
754 F.2d 898,
901 (11th Cir. 1985)). There are no “blanket categories for . . . [a] substantial question”;
whether the appeal raises a substantial question is an inquiry that a court must
undertake on a case-by-case basis.
Id. (internal quotation marks omitted) (citing
Giancola,
754 F.2d at 901).
{14} Thus, a “substantial question” in New Mexico for the purposes of Section 31-11-
1(C) is a question “of more substance than would be necessary to a finding that it was
not frivolous,” “a close question or one that very well could be decided the other way,” or
a question that is “either novel, . . . has not been decided by controlling precedent, or
. . . fairly doubtful.” House, 1996-NMCA-052, ¶¶ 12, 14 (internal quotation marks and
citations omitted). “[A] question which has not been decided by controlling precedent
may not be substantial.” Affleck,
765 F.2d at 952 (internal quotation marks and citation
omitted).
{15} Whether a substantial question is likely to result in a reversal or an order for a
new trial relates to “the significance of the substantial issue to the ultimate disposition of
the appeal.” Miller, 753 F.2d at 23. In its consideration, a court assumes that the
substantial question would be decided in a defendant’s favor on appeal. Affleck,
765
F.2d at 953. Then the court determines whether the issue is so integral to the merits of
the conviction that resolution in a defendant’s favor would “result in reversal or an order
for a new trial of all counts on which imprisonment has been imposed.”
Id. (quoting
Miller,
753 F.2d at 24). When considering whether to grant release pending appeal,
courts are not in a position to play “bookmakers” that might tip the scales in a
defendant’s actual appeal on the merits.
Id. at 953 n.14. Rather, this analysis is a
preliminary assessment of the merits on appeal. See House,
1996-NMCA-052, ¶ 9.
{16} Section 31-11-1(C) imposes requirements that protect New Mexico communities
and the administration of justice while also providing some defendants a path for
release pending appeal. As we have described, defendants have the burden of proof to
show that (1) they are not a flight risk, (2) they are not a danger to the community, (3)
the appeal is not for the purpose of delay, and (4) the appeal raises a substantial
question of law or fact likely to result in reversal or an order for a new trial of all counts
on which imprisonment has been imposed. When defendants satisfy the conditions of
the Section 31-11-1(C), the plain language of the statute entitles them to release subject
to the conditions of release imposed by the trial court. In House, the Court of Appeals at
times appears to suggest that release pending appeal is not mandatory, even when a
defendant satisfies the statutory conditions. See e.g., 1996-NMCA-052, ¶ 8 (stating that
Section 31-11-1(C) limits “those situations in which a trial court may even consider
setting bail pending appeal”), ¶ 15 (stating that “bail pending appeal is appropriate if” a
defendant raises a substantial question); but see
1996-NMCA-052, ¶ 23 (“[A defendant]
is not entitled to release under Section 31-11-1(C) unless his appeal also presents a
substantial question.”).
{17} Any suggestion that release pending appeal may not be mandatory where a
defendant has met the statutory conditions is contrary to the plain language of Section
31-11-1(C) and its statutory predecessors. Since before statehood, New Mexico has
entitled some post-conviction defendants to release pending appeal. NMSA 1978, § 31-
11-1(B) (1981) (“[T]he defendant [who is not sentenced to death or life imprisonment] is
entitled to be released on bail pending the decision upon review by filing a bond in the
sum, and with conditions, fixed by the district court.”); NMSA 1953, § 41-15-2(B) (1966)
(Vol. 6, 2d Repl. 1972) (“In all criminal cases [not implicating a sentence of death or life
imprisonment], the defendant is entitled to be released on bail pending the decision
upon review by filing a bond in the sum, and with conditions, fixed by the district court.”);
NMSA 1929, § 105-2532 (1927) (“[I]n all other cases [not implicating a sentence of
death or life imprisonment] the party taking the appeal or suing out the writ of error shall
be entitled to be released on bail by filing a bond in the sum and with conditions to be
fixed by the district court . . . .”); NMSA 1915, § 4527 (1907) (“[I]n all other cases of
appeal [not implicating a sentence of death or life imprisonment] the party taking the
appeal shall be entitled to give bail by filing a bond in a sum and with conditions to be
fixed by the district court . . . .”). By amending Section 31-11-1(C) in 1988, the
Legislature simply limited and conditioned this right on the defendants’ successful
showing that they meet new and additional statutory requirements, whereas before
1988, defendants had a lesser burden to secure release pending appeal. See House,
1996-NMCA-052, ¶ 6 (recognizing the “limited and conditional right” to release pending
appeal granted by Section 31-11-1(C) (emphasis added)).
B. Defendants Raise Substantial Questions Integral to the Merits of Their
Appeal, Making Them Eligible for Release Pending Their Appeal
{18} Defendants raise two primary issues in their appeal, and they argue that both are
substantial questions that are likely to result in either a reversal or an order for a new
trial. They challenge the sufficiency of the evidence against them, and they claim that
instructional error prevented the jury from arriving at a unanimous decision as to the
conduct alleged to be child abuse.
{19} In our preliminary assessment we consider whether either issue raises a
question “of more substance than would be necessary to a finding that it was not
frivolous,” “a close question or one that very well could be decided the other way,” or a
question that is “either novel, . . . has not been decided by controlling precedent, or . . .
fairly doubtful.” House, 1996-NMCA-052, ¶¶ 12, 14 (internal quotation marks and
citations omitted). We conclude that both issues raised by Defendants constitute
substantial questions under Section 31-11-1(C)(2). If either of these substantial
questions is resolved in Defendants’ favor on appeal, then that determination would
“result in reversal or an order for a new trial of all counts on which imprisonment has
been imposed.” Affleck,
765 F.2d at 953 (quoting Miller,
753 F.2d at 24 (internal
quotation marks omitted)). Thus, Defendants meet the requirements of Section 31-11-
1(C) and are entitled to release pending their appeal.
1. Sufficiency of the evidence
{20} Defendants contend that there is not sufficient evidence to support the jury’s
finding that they committed child abuse by reckless disregard. Specifically, they assert
that there is not sufficient evidence to show that they acted with the requisite mens rea
to support their convictions.
{21} Under Section 30-6-1(D), child abuse “consists of a person knowingly,
intentionally or negligently, and without justifiable cause, causing or permitting a child to
be: (1) placed in a situation that may endanger the child’s life or health; (2) tortured,
cruelly confined or cruelly punished; or (3) exposed to the inclemency of the weather.”
The statute states that “‘negligently’ refers to criminal negligence and means that a
person knew or should have known of the danger involved and acted with a reckless
disregard for the safety or health of the child.” Section 30-6-1(A)(3). However, in State v.
Consaul, we clarified that although the child abuse statute states “negligence,” the
required mens rea under Section 30-6-1(D) is recklessness. 2014-NMSC-030, ¶¶ 36-37,
332 P.3d 850. We reasoned in Consaul that “the term ‘reckless disregard’ . . . prevail[s]
when ‘knew or should have known’ conflicts.” Id. ¶ 40. “[R]ecklessness require[s a
defendant] to consciously disregard a substantial and unjustifiable risk of such a nature
and degree that its disregard involves a gross deviation from the standard of conduct
that a law-abiding person would observe in the [defendant]’s situation.” Id. ¶ 37
(emphasis added) (citing Model Penal Code § 2.02(2)(c) (definition of recklessly)).
Thus, to support a defendant’s conviction of reckless child abuse, there must be
sufficient evidence for the reviewing court to conclude that the defendant committed the
actus reus with the required mens rea. See State v. Granillo,
2016-NMCA-094, ¶ 13,
384 P.3d 1121. “[A]ccidental conduct cannot support a conviction for [reckless] child
abuse.” State v. Arrendondo,
2012-NMSC-013, ¶ 26,
278 P.3d 517.
{22} In this case, a substantial question exists as to whether there is substantial
evidence establishing beyond a reasonable doubt that Defendants recklessly
disregarded the risk that the children would suffer great bodily harm or death when they
failed to remove the children from the vehicle. See State v. Romero, 2019-NMSC-007, ¶
51,
435 P.3d 1231. Defendants argue that because they were not aware that the
children were left in the vehicle, they could not have consciously disregarded the risk of
leaving the children in the car when they failed to remove them. Thus, they contend that
the State failed to prove that Defendants had the requisite state of mind—reckless
disregard—when they failed to remove the children from the vehicle. The State argues
that Defendants recklessly disregarded the risk of leaving the children in the vehicle
because Defendants knew the children were originally in the car, failed to remove the
children from the vehicle, and failed to notice that the children were missing.
{23} Defendants’ argument meets the threshold for a “substantial question.” See
House, 1996-NMCA-052, ¶¶ 13-14 (citing Affleck,
765 F.2d at 952). Defendants present
a question “of more substance than would be necessary to a finding that it was not
frivolous.”
Id. ¶ 14 (quoting Affleck,
765 F.2d at 952). That Section 30-6-1(D) requires a
mens rea of reckless disregard is neither novel nor undecided by controlling precedent.
We clearly stated in Consaul that the required state of mind under Section 30-6-1(D) is
recklessness, not negligence.
2014-NMSC-030, ¶ 37. However, we reason that it is
fairly doubtful that sufficient evidence proves Defendants had the requisite mens rea of
reckless disregard when they committed the actus reus. While the jury found that
Defendants showed a reckless disregard for the children’s health or safety, we conclude
that this question is a close question that could very well be decided the other way.
{24} On the one hand, Defendants originally placed the children in the vehicle and
failed to notice that they were missing for over two hours. This failure is consistent with
other evidence that Defendants did not always take appropriate precautions to ensure
the safety and well-being of the children at the daycare. Defendants did not follow the
rules and procedures mandated by the CYFD. Among other violations, they failed to do
head counts, they drove children in their care without permission, and they lacked the
proper caregiver-to-child ratios. Thus, their failure to remove the children from the car
was consistent with other conduct that is inappropriate for a business responsible for
the health and safety of children. Together, these actions resulted in undeniable tragedy
that the jury found indicated a reckless disregard.
{25} On the other hand, Defendants did not leave the children in the vehicle with the
intent to leave them in the vehicle. Each Defendant thought the other had removed the
two children from the vehicle. Police officers testified that there was no evidence
Defendants were aware the children had been left in the vehicle. Accordingly, while
Defendants did leave the children in the car, they would not have been aware of the risk
created by their failure to remove the children, and thus they could not have consciously
disregarded the risk.
{26} We conclude that a substantial question exists as to whether sufficient evidence
was presented at trial to support Defendants’ convictions. This question is “‘integral to
the merits’” of Defendants’ appeal. Affleck, 765 F.2d at 953 (quoting Miller,
753 F.2d at
23). Resolution of the question in Defendants’ favor would result in a reversal of all of
Defendants’ convictions for which imprisonment has been imposed. See
id. Thus,
Defendants have satisfied the requirements for Section 31-11-1(C) under their
sufficiency of the evidence argument.
2. Jury instructions
{27} Defendants objected to the reckless child abuse jury instructions at trial and
argue now that those jury instructions provided by the district court did not allow the jury
to arrive at a unanimous decision regarding the conduct alleged to be child abuse.
{28} Where the state advances “two or more different or inconsistent acts or courses
of conduct . . . as [differing] theories as to how a child’s injuries occurred . . . the jury
must make an informed and unanimous decision, guided by separate instructions, as to
the culpable act the defendant committed and for which he is being punished.” Consaul,
2014-NMSC-030, ¶ 23. “Jurors should not be left free, let alone encouraged by the
prosecutor, each to go his or her own way when it comes to determining what criminal
conduct—if more than one act is alleged—caused the child’s harm.” Id. ¶ 25.
{29} The jury instructions as to reckless child abuse in this case included an “and/or”
phrase. Numbered paragraph one of the uniform jury instructions required a description
of the “conduct or course of conduct alleged to have been child abuse.” See UJI 14-615
NMRA, UJI 14-622 NMRA. Numbered paragraph one of the instructions the jury
received states,
[Defendant] did not follow the proper rules and procedures mandated by
CYFD in conducting the care of [Child], including failing to do headcounts,
driving [Child] without CYFD permission, failing to have proper care giver
to child ratio when [Child] was in her care, and/or failing to remove [Child]
from a vehicle which resulted in [Child] being left unattended in that
vehicle and exposed to unsafe temperatures for a time period of
approximately two hours and 40 minutes.
This description of the alleged conduct was identical in the jury instructions for both
Defendants and was given to the jury four times, once as to each child for each
Defendant.
{30} Defendants argue that the jury instructions tendered in this case were improper.
Specifically, Defendants contend that because the instructions listed acts alleged to be
child abuse using an “and/or” phrase at the end, it is impossible to know which particular
acts the jury agreed amounted to child abuse. Defendants argue that this instruction
tenders four separate legal theories—one for each act. Additionally, they argue that
each act does not independently rise to reckless child abuse.
{31} The State argues that the instruction was acceptable because all of the acts
support a single theory of recklessness. The State contends that Consaul involved
“‘different and inconsistent theories as to what [the defendant] actually did,’” quoting
Consaul, 2014-NMSC-030, ¶¶ 24-26, and distinguishing those theories as either (1)
reckless child abuse, where the defendant swaddled the baby too tightly and laid him
face down in bed out of frustration, or (2) intentional child abuse, where the defendant
used either a pillow or his hand to suffocate the baby. The State contends that here only
one theory of child abuse, by reckless disregard, was presented and that the acts here
were not inconsistent because the various acts within the jury instruction were all acts of
recklessness. The State asserts that there is no uncertainty as to whether the jury
unanimously agreed on which act caused harm to the children, because it is undisputed
that the act of leaving the children in a hot car caused the great bodily harm of one child
and death of the other child.
{32} In our preliminary assessment of the parties’ arguments, we conclude that a
substantial question exists regarding whether the jury instruction properly reflected the
legal theories presented to allow the jury to “make an informed and unanimous decision
. . . as to the culpable act [Defendants] committed and for which [they are] being
punished.” Id. ¶ 23. It is unclear whether the jury instructions intended to address
multiple legal theories or just a single theory of recklessness based on the listing of acts
described in numbered paragraph one of these jury instructions. The issue regarding
the jury instructions is “not frivolous” and “could very well be decided the other way.”
House, 1996-NMCA-052, ¶¶ 12, 14 (internal quotation marks and citations omitted).
{33} This issue is integral to the merits of Defendants’ appeal. Assuming this
substantial question is decided in Defendants’ favor on appeal, then the jury instructions
as to reckless child abuse present a reversible error that would result in an order for a
new trial for each Defendant on both counts of reckless child abuse. See State v.
Cabezuela, 2011-NMSC-041, ¶¶ 21-22, 36,
150 N.M. 654,
265 P.3d 705; State v.
Benally,
2001-NMSC-033, ¶¶ 1, 12,
131 N.M. 258,
34 P.3d 1134. Thus, Defendants
have satisfied the requirements for Section 31-11-1(C) under their jury instruction
argument.
III. CONCLUSION
{34} As we have described, Defendants meet the requirements under Section 31-11-
1(C) and are entitled to release pending the resolution of their appeal. Defendants’ flight
risk and dangerousness are not at issue, their appeal is not for the purpose of delay,
and Defendants raise substantial questions in their challenges regarding the sufficiency
of the evidence and the jury instruction. The Court of Appeals erred when it affirmed the
district court’s order denying Defendants’ motion for release pending appeal. We
reverse the Court of Appeals and remand this matter of release pending appeal to the
district court for actions consistent with this opinion and this Court’s prior order.
{35} IT IS SO ORDERED.
C. SHANNON BACON, Justice
WE CONCUR:
MICHAEL E. VIGIL, Chief Justice
BARBARA J. VIGIL, Justice
DAVID K. THOMSON, Justice
