{ "id": 4362741, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. ADRIANA CABEZUELA, Defendant-Appellant", "name_abbreviation": "State v. Cabezuela", "decision_date": "2015-05-07", "docket_number": "Docket No. 33,781", "first_page": "1", "last_page": "11", "citations": [ { "type": "official", "cite": "2015-NMSC-016" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "278 P.3d 517", "category": "reporters:state_regional", "reporter": "P.3d", "weight": 2, "opinion_index": 0 }, { "cite": "2012-NMSC-013", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4186851 ], "pin_cites": [ { "page": "\u00b6 38" } ], "opinion_index": 0, "case_paths": [ "/nm-app/1/0673-01" ] }, { "cite": "2006-NMSC-050", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3671204 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 32" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0644-01" ] }, { "cite": "2011-NMSC-022", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4250430 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/150/0224-01" ] }, { "cite": "279 P.3d 747", "category": "reporters:state_regional", "reporter": "P.3d", "weight": 2, "opinion_index": 0 }, { "cite": "2012-NMSC-018", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4189500 ], "pin_cites": [ { "page": "\u00b6 46" } ], "opinion_index": 0, "case_paths": [ "/nm-app/2/0030-01" ] }, { "cite": "275 P.3d 110", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMSC-008", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4188256 ], "weight": 2, "pin_cites": [ { "page": "\u00b6\u00b6 2, 25" }, { "page": "\u00b6 32" } ], "opinion_index": 0, "case_paths": [ "/nm-app/1/0535-01" ] }, { "cite": "314 P.3d 665", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMSC-049", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4077868 ], "pin_cites": [ { "page": "\u00b6\u00b6 25, 31" } ], "opinion_index": 0, "case_paths": [ "/nm-app/5/0134-01" ] }, { "cite": "294 P.3d 435", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMSC-003", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4191021 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 22" }, { "page": "\u00b6\u00b6 22-23, 28" } ], "opinion_index": 0, "case_paths": [ "/nm-app/3/0363-01" ] }, { "cite": "2000-NMSC-009", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106493 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0711-01" ] }, { "cite": "2011-NMSC-003", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4248753 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/149/0185-01" ] }, { "cite": "2006-NMSC-035", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3670050 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0094-01" ] }, { "cite": "2010-NMSC-041", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4247246 ], "weight": 5, "pin_cites": [ { "page": "\u00b6\u00b6 35-42" }, { "page": "\u00b6 42" }, { "parenthetical": "\"Unlike a mandatory sentence of life imprisonment, a basic sentence of life imprisonment is subject to alteration ... if the trial court finds any mitigating circumstances surrounding the offense or concerning the offender.\" (internal quotation marks and citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0747-01" ] }, { "cite": "2011-NMSC-041", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4250792 ], "weight": 16, "pin_cites": [ { "page": "\u00b6 1" }, { "page": "\u00b6 45" }, { "page": "\u00b6 49" }, { "page": "\u00b6\u00b6 52, 54" }, { "page": "\u00b6 19" }, { "page": "\u00b6\u00b6 20, 27, 36" }, { "page": "\u00b618" }, { "page": "\u00b6 21" }, { "page": "\u00b6 37" }, { "page": "\u00b6 37" }, { "page": "\u00b6 37" }, { "page": "\u00b6\u00b6 36, 37" }, { "page": "\u00b6 48" } ], "opinion_index": 0, "case_paths": [ "/nm/150/0654-01" ] } ], "analysis": { "cardinality": 1223, "char_count": 33501, "ocr_confidence": 0.759, "pagerank": { "raw": 7.469799212732222e-08, "percentile": 0.44514023790576207 }, "sha256": "d5fae8c9905178a245bd84e1429049e8823ac379bf18c44a42e1b3b1cd9d26af", "simhash": "1:9e145d03e28f075a", "word_count": 5345 }, "last_updated": "2023-07-14T20:13:54.428467+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "RICHARD C. BOSSON, Justice", "WE CONCUR:", "BARBARA J. VIGIL, Chief Justice", "PETRA JIMENEZ MAES, Justice", "EDWARD L. CH\u00c1VEZ, Justice", "CHARLES W. DANIELS, Justice" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. ADRIANA CABEZUELA, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nBOSSON, Justice.\n{1} This Court previously issued an opinion following Defendant Adriana Cabezuela\u2019s first trial in which a jury convicted her of intentional child abuse resulting in the death of her eight-month-old daughter Mariana Barraza (Baby Mariana). See State v. Cabezuela (Cabezuela I), 2011-NMSC-041, \u00b6 1, 150 N.M. 654, 265 P.3d 705 (reversing the conviction, holding that the jury was improperly instructed, and remanding for retrial) . After we reversed and remanded for a new trial, Defendant was again tried and convicted of the same offense and sentenced to life imprisonment.\n{2} On direct appeal, Defendant argues that (1) the district court erred by not holding a presentencing hearing to consider mitigation evidence before imposing a life sentence, (2) the evidence was not sufficient to support her conviction, (3) a forensic pathologist\u2019s trial testimony violated Defendant\u2019s constitutional right to confrontation, (4) the district court improperly instructed the jury by giving UJI 14-610 NMRA (1993, withdrawn 2015), a definition instruction on intent, and (5) Defendant\u2019s trial counsel provided ineffective assistance. We decide in the State\u2019s favor with respect to issues (2) through (4). With respect to issue (1), however, we conclude that the district court should have heard evidence in mitigation before imposing sentence, and we remand to the district court for a new sentencing hearing. With respect to issue (5), we conclude that Defendant\u2019s ineffective assistance of counsel argument is more appropriately considered in a habeas corpus proceeding.\nBACKGROUND\n{3} Defendant was the mother of six children. The three youngest, including Baby Mariana, resided in the house Defendant shared with her boyfriend, Leonardo Samaniego, Jr. The other three children lived with either their father or grandmother. Samaniego was not the father of any of Defendant\u2019s six children.\n{4} At approximately 1:45 a.m. on June 14, 2007, Officer Shawn Hardison responded to a 911 call regarding an unresponsive child in Hobbs, New Mexico. Officer Hardison testified that when he arrived, he saw Defendant outside on a cell phone crying and that she asked him to \u201chelp her baby.\u201d Inside the house, Officer Hardison found Baby Mariana on the floor, wearing a diaper, and not moving. There were other people inside the house, but no one was attending to Baby Mariana. Baby Mariana was pale or blueish and did not appear to be breathing. When Officer Hardison placed his cold hand on Baby Mariana\u2019s chest, she \u201ctook a ragged breath\u201d as the ambulance arrived. Emergency medical technicians then took over and transported Baby Mariana to Lea Regional Medical Center (LRMC) where she later died.\n{5} While Officer Kathleen Rix was at LRMC for an unrelated matter, a nurse approached her and asked her to look at Baby Mariana. Officer Rix first noticed bruising all along Baby Mariana\u2019s right side, because that was the side facing her. Officer Rix testified that when she got a better look at Baby Mariana\u2019s entire body, she saw \u201cjust bruises pretty much everywhere.\u201d Defendant and Samaniego arrived at LRMC and spoke with one of the emergency room doctors while other medical staff treated Baby Mariana. They left with police officers before medical personnel pronounced Baby Mariana dead.\n{6} Defendant spoke with officers at the police station. Initially, she professed not to have any idea how Baby Mariana stopped breathing or how she sustained any of the visible injuries on her body. As the interview evolved, however, Defendant made a number of highly incriminating statements which we discuss in more detail later in this opinion.\n{7} A jury found Defendant guilty of intentional child abuse resulting in Baby Mariana\u2019s death, and the district court sentenced Defendant to life imprisonment. Defendant appeals her conviction directly to this Court. See N.M. Const. art. VI, \u00a7 2 (\u201cAppeals from a judgment of the district court imposing a sentence of death or life imprisonment shall be taken directly to the supreme court.\u201d); see also Rule 12-102(A)(1) NMRA (providing for direct appeals to the Supreme Court from a life sentence).\nDISCUSSION\nThe District Court Should Have Heard Mitigation Evidence Before Sentencing Defendant to Life Imprisonment\n{8} We take the unorthodox step of proceeding directly to sentencing before discussing the issues relevant to Defendant\u2019s conviction. We do so because our legal precedent dictates clearly that Defendant was entitled to present mitigation evidence and have the district court consider reducing her life sentence by up to ten years (one-third of thirty years, the minimum before one becomes eligible for parole). See NMSA 1978, \u00a7 31-18-15(A)(1) (2007); NMSA 1978, \u00a7 31-18-15.1(A)(1) (2009); NMSA 1978, \u00a7 31-21-10(A) (2009).\n{9} Section 31-18-15.1(A)(1) provides:\nThe court shall hold a sentencing hearing to determine if mitigating or aggravating circumstances exist and take whatever evidence or statements it deems will aid it in reaching a decision to alter a basic sentence[ and] may alter the basic sentence ... upon ... a finding by the judge of any mitigating circumstances surrounding the offense or concerning the offender....\nAt the sentencing hearing in this case, which appears to have taken no more than two minutes, the State informed the district court that Defendant was \u201csubject to a sentence of life in prison followed by a period of five years parole, which is a minimum mandatory sentence of thirty years\u201d without any provision for mitigation. Defense counsel agreed that \u201cthis is a situation where there is a minimum mandatory sentence, thus anything that we discuss here today does not affect that.\u201d Apparently then, both attorneys were operating under a legal misapprehension that a conviction of intentional child abuse resulting in the death of a child under twelve requires a minimum mandatory sentence of thirty years. Both were wrong, and as a result misled the sentencing court.\n{10} Nearly five years ago, we addressed this same issue in State v. Juan, 2010-NMSC-041, \u00b6\u00b6 35-42, 148 N.M. 747, 242 P.3d 314. In Juan, we concluded that the Legislature gave district courts \u201cauthority to alter the basic sentence of life imprisonment for noncapital felonies,\u201d including intentional child abuse resulting in the death of a child. Id. \u00b6 39. See \u00a7 31-18-15(A)(1) (describing a first degree felony resulting in the death of a child as a noncapital felony subject to a basic sentence of life imprisonment).\n{11} Mandatory life sentences, with or without the possibility of parole after thirty years, are for capital felonies and are not subject to mitigation. See Juan, 2010-NMSC-041, \u00b6 42 (\u201c[Cjapital felonies . . . carry a mandatory sentence of life imprisonment.\u201d). Unlike a capital felony, a basic sentence of life imprisonment for a noncapital felony is not a mandatory life sentence and is subject to mitigation. See id. (\u201cUnlike a mandatory sentence of life imprisonment, a basic sentence of life imprisonment is subject to alteration ... if the trial court finds any mitigating circumstances surrounding the offense or concerning the offender.\u201d (internal quotation marks and citation omitted)).\n{12} It follows that this Defendant was found guilty of a noncapital felony and, as a result, her life sentence was basic, not mandatory. Accordingly, the district court was required to consider mitigation evidence before issuing a final sentence.\n{13} In Juan, we discussed the \u201cproper numerical standard by which to measure the [district] court\u2019s authority to alter a basic sentence of life imprisonment,\u201d and concluded that it was at the point in time when an inmate becomes eligible for parole. Id. \u00b6 41. In this case, that period is thirty years. Id. Section 31-18-15.1(G) provides that \u201cin no case shall the alteration [of a defendant\u2019s sentence] exceed one-third of the basic sentence.\u201d Since our opinion in Juan, the district court has had the authority to alter Defendant\u2019s basic sentence of life imprisonment by reducing the number of years she has to serve before becoming eligible for parole by up to one-third of the minimum possible sentence, or ten years. As a result, the basic sentence of thirty years before parole eligibility could become as little as twenty years. But that decision can only be made after considering evidence in mitigation, and we remand for that purpose.\nThe State Presented Substantial Evidence to Support Defendant\u2019s Conviction for Intentional Child Abuse Resulting in the Death of Her Daughter\n{14} Defendant challenges the sufficiency of the evidence to support her verdict, yet, ironically, much of the State\u2019s evidence came directly from her own statements to officers presented by the State at trial. \u201cThe test for sufficiency of the evidence is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction.\u201d State v. Duran, 2006-NMSC-035, \u00b6 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks and citation omitted). In her initial interview with police officers, Defendant changed her story more than once. She first offered that Baby Mariana fell off the bed the previous afternoon. When prodded about what appeared to be bite marks on Baby Mariana\u2019s body, Defendant told the officer that her eighteen-month-old child caused them. Defendant later admitted, however, that she had lost control a few times when Baby Mariana was crying and had bitten Baby Mariana on her legs and cheek.\n{15} When asked if Baby Mariana\u2019s \u201chead could have popped back\u201d at some point, Defendant responded, \u201cI don\u2019t recall shaking her.\u201d She insisted that she had never hit or thrown Baby Mariana. Also in the interview, Defendant stated, \u201cI don\u2019t want to go to jail . . . . I\u2019m giving my rights up to my kids.\u201d After the officer again asked her for an explanation for the visible bruising on Baby Mariana, Defendant admitted that she had sometimes lost her temper and had shaken her child, saying, \u201cI can\u2019t be patient .... I just want them to go live with their dad \u2018cause I don\u2019t want to hurt them no more.\u201d\n{16} When asked about a big bruise on Baby Mariana\u2019s forehead, Defendant initially said she could not remember what caused the bruise, but then stated that it happened the previous day at a storage facility. Defendant said that she shook the baby carrier with Baby Mariana in it because the baby was crying and she \u201clost [her] temper.\u201d Defendant then admitted \u201cI probably hit her head; I didn\u2019t mean to hit her hard.\u201d\n{17} Defendant discussed another instance when she lost her temper and threw Baby Mariana on the bed. \u201cShe could have . . . [hit her head], probably against the wall .... I didn\u2019t see her [hit the wall].\u201d Defendant insisted that before the 911 call on June 14, 2007, nothing happened to Baby Mariana and that she did not remember anything happening. However, when the officer continued to question her, Defendant stated that she may have put Baby Mariana down to o hard and later admitted that she had tossed Baby Mariana to the floor. Further in the interview, Defendant admitted that she jerked Baby Mariana off the floor, and at that point Baby Mariana stopped crying. After Defendant carried Baby Mariana to her bed, Samaniego noticed that something was wrong and Defendant saw that Baby Mariana did not appear to be breathing. Samaniego and Defendant drove Baby Mariana to Samaniego\u2019s father\u2019s house to call 911.\n{18} In addition to these admissions, the State offered trial testimony from Dr. Michelle Barry Aurelius, the attending physician at the Office of the Medical Investigator and the supervising forensic pathologist at Baby Mariana\u2019s autopsy. Dr. Aurelius worked with Dr. Ann Bracey, a pathology fellow assigned to the autopsy. Acting in coordination, Dr. Aurelius and Dr. Bracey made various decisions regarding what tests to perform, and observed and recorded the injuries (including the head and brain injuries). Dr. Aurelius worked with Dr. Bracey to compile the autopsy report, and Dr. Aurelius signed the death certif\u00edcate.\n{19} Dr. Aurelius\u2019 testimony revealed numerous injuries that she had observed on Baby Mariana\u2019s face, including bruises over her forehead, a skin tear on the outside of her left eye, multiple green to black bruises on the left side of her face, skin abrasions, and bruises on her ear, nose, right eye, right cheek, and jaw line. Baby Mariana had bruising deep in the skin of her head and along the skull. There was also evidence of bleeding around her brain and inside her eyes.\n{20} Testimony further revealed that B aby Mariana\u2019s torso and extremities carried a number of contusions (bruises) and abrasions. The number and age of the bruises could not be quantified because of variation in the coloration of bruises on different parts of the body. According to Dr. Aurelius, Baby Mariana died from a fatal, traumatic brain injury that could have killed her instantly or left her in a comatose state from the moment the injury occurred until she was pronounced dead.\n{21} Dr. Aurelius also testified about the scope of Baby Mariana\u2019s injuries and the cause and manner of death. When asked if the external bruising could have been consistent with a \u201cpattern of abuse,\u201d or \u201cmore than one hit, more than one strike,\u201d Dr. Aurelius replied, \u201cit could have been.\u201d Dr. Aurelius further testified that the brain injury could be consistent with Baby Mariana being thrown to a carpeted floor.\n{22} Despite the evidence against her, Defendant now argues that the State presented insufficient evidence at trial to prove that she had intentionally abused Baby Mariana. At trial, Defendant offered an alternative theory to explain the brain injury, that Baby Mariana fell off a van at a storage facility the afternoon before Defendant took her to the hospital. Relying on this theory, Defendant argued below and to this Court that she may have been negligent in not taking her daughter to the hospital sooner, but nothing more.\n{23} Essentially, Defendant asks this Court to weigh her credibility and substitute our judgment for that of the jury. Defendant\u2019s argument is that her \u201caccount provided a plausible explanation of what had actually happened. Although the jury was not required to accept [Defendant\u2019s] version of events, her explanation should not simply be disregarded by this Court.\u201d We have previously observed in this very case that \u201cthe jury is free to reject Defendant\u2019s version of the facts.\u201d Cabezuela I, 2011-NMSC-041, \u00b6 45 (internal quotation marks and citation omitted). We \u201cwill not invade the jury\u2019s province as fact-finder by second-guess[ing] the jiu'y\u2019s decision concerning the credibility of witnesses, reweigh[ing] the evidence, or substituting] [our] judgment for that of the jury.\u201d State v. Garcia, 2011-NMSC-003, \u00b6 5, 149 N.M. 185, 246 P.3d 1057 (first three alterations in original) (internal quotation marks and citation omitted).\n{24} The jury had ample evidence before it to convict Defendant of intentional child abuse. There were Defendant\u2019s own admissions that she bit, threw, jerked, and slapped Baby Mariana. Defendant\u2019s police interview could appear to a reasonable jury as a classic change-of-story scenario. Initially, Defendant did not \u201cremember\u201d or did not \u201cknow\u201d how the injuries occurred, but over the course of time gave explanations for the injuries alongside her statement that she \u201cd[id]n\u2019t want to go to jail.\u201d And then there was Dr. Aurelius\u2019 expert testimony describing the extensive bruising as consistent with a pattern of abuse. Substantial evidence supports the verdict in this case.\nTrial Testimony from the Supervising Forensic Pathologist Dr. Aurelius Did Not Violate Defendant\u2019s Constitutional Right to Confrontation\n{25} We have previously summarized Dr. Aurelius\u2019 testimony at trial and how it contributed materially to the substantial evidence in support of Defendant\u2019s conviction. Importantly, Dr. Aurelius testified without objection, and therefore our review on appeal is limited to fundamental error. See Cabezuela I, 2011-NMSC-041, \u00b6 49. (\u201c[B]ecause [the Confrontation Clause] claim was not preserved, we review only for fundamental error.\u201d). \u201cFundamental error only applies in exceptional circumstances when guilt is so doubtful that it would shock the judicial conscience to allow the conviction to stand.\u201d State v. Cunningham, 2000-NMSC-009, \u00b6 13, 128 N.M. 711, 998 P.2d 176 (internal quotation marks and citation omitted).\n{26} Despite the lack of objection, D efendant argues on appeal that this testimony violated her constitutional right to confront the witnesses against her because Dr. Aurelius testified in part about work done by Dr. Bracey, a pathology fellow working under Dr. Aurelius\u2019 supervision. U.S. Const, amend. VI. (\u201cIn all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him ... .\u201d).\n{27} We rejected this same argument in Cabezuela I, where Dr. Aurelius also testified about Baby Mariana\u2019s injuries and offered her opinion as to the cause and manner of death, much as in the present trial. See 2011-NMSC-041, \u00b6\u00b6 52, 54. Dr. Aurelius gave her expert opinion in the present trial that Baby Mariana suffered a traumatic brain injury which could have killed her instantly or induced a coma, \u201cso that devastating injury would have occurred between the last time that she was seen acting normally and when she was declared dead.\u201d Dr. Aurelius also testified that some of Baby Mariana\u2019s injuries could have been over eighteen hours old due to the yellow color of some of the bruises but that it was difficult to estimate when all the injuries occurred because \u201cwe can bruise different ways in different colors in different parts of the body even though injuries may have all occurred at the same time, except for the yellow.\u201d She further testified that the injuries to the brain did not show any signs of healing.\n{28} Dr. Aurelius supervised and worked alongside Dr. Bracey during the autopsy. While Dr. Bracey dissected the body and photographed the injuries, both pathologists examined the injuries and the organs together, both decided what tests to perform, they observed the injuries in the head and brain together, and together they compiled their opinion in the autopsy report. Dr. Aurelius signed the death certificate. Based on the foregoing, we conclude that Dr. Aurelius made independent, personal observations and had personal knowledge regarding Baby Mariana\u2019s extensive injuries, their likely cause, and the manner of Baby Mariana\u2019s death sufficient to support her testimony and opinions. We reject Defendant\u2019s sitggestion that Dr. Aurelius was simply \u201cparroting\u201d the conclusions of Dr. Bracey who did not testify. See State v. Navarette, 2013-NMSC-003, \u00b6 22, 294 P.3d 435.\n{29} Defendant launches a second confrontation clause challenge independent of the absence of Dr. Bracey. Prior to trial, Dr. Aurelius consulted a forensic odontologist, Dr. Pete Loomis, for his expert opinion regarding the bite marks on Baby Mariana\u2019s body. Dr. Loomis did not testify. Instead, based on Dr. Loomis\u2019s opinions, Dr. Aurelius testified that one of the injuries was \u201cmore likely than not an adult human bite mark.\u201d Another was only \u201cslightly suggestive\u201d of an adult human bite mark. And another was probably not a bite mark, but had a similar shape.\n{30} Insofar as Dr. Aurelius was allowed to testify about Dr. Loomis\u2019 opinions, our precedent makes clear that Defendant was deprived of her constitutional right to confront Dr. Loomis about his opinions. See Navarette, 2013-NMSC-003, \u00b6\u00b6 22-23, 28; see also State v. Sisneros, 2013-NMSC-049, \u00b6\u00b6 25, 31, 314 P.3d 665. Even if Dr. Loomis\u2019 opinions were admitted in error, however, \u201c[i]mproperly admitted evidence is not grounds for a new trial unless the error is determined to be harmful.\u201d State v. Tollardo, 2012-NMSC-008, \u00b6\u00b6 2, 25, 275 P.3d 110. \u201c[H]armless error review necessarily requires a case-by-case analysis,\u201d questioning whether a guilty verdict in a particular case is attributable to a particular error. Id. \u00b6 44.\n{31} Our review of the evidence satisfies us that the error here had no such effect. Although Dr. Aurelius\u2019 testimony about the apparent bite marks related to one or two of the injuries, it was a very minor portion of her overall testimony. Importantly, her testimony about bite marks did not relate to the cause and manner of Baby Mariana\u2019s death. Baby Mariana died from blunt force trauma and traumatic brain injury, not from injuries resulting in bite marks. Furthermore, during her police interviews Defendant admitted to biting Baby Mariana, and those interviews were admitted into evidence. Accordingly, the bite mark testimony, though rising to the level of constitutional error, had little, if any, effect on the verdict. We conclude that there is no reasonable possibility that the error contributed to the verdict. See Tollardo, 2012-NMSC-008, \u00b6 32 (holding that a constitutional error is \u201charmless if there is no reasonable possibility ... that the error contributed to the defendant\u2019s conviction\u201d (internal quotation marks omitted)).\nGiving the Jury UJI 14-610 (\u201cChild Abuse; \u2018Intentional\u2019; Defined.\u201d) Did Not Amount to Fundamental Error\n{32} After Defendant\u2019s first trial, she argued on appeal that the district court had improperly instructed the jury. \u201cSpecifically, Defendant argue[d] that the phrase \u2018failure to act\u2019 should have been omitted [from the elements instruction, tracking UJI 14-602 NMRA (2000, withdrawn 2015)] because such language aligns itself solely with a negligent child abuse theory.\u201d Cabezuela I, 2011-NMSC-041, \u00b6 19. In Cabezuela I, the State argued that either an act or a failure to act could form the basis for committing the crime of intentional child abuse, and therefore the jury was not given a separate instruction on negligent child abuse. Id. \u00b6 20. In reversing and remanding for a new trial, this Court agreed with Defendant. We based our reasoning partially on the lack of a separate instruction for negligent child abuse in light of the State\u2019s theory of a failure to act. See id. \u00b6 36.\n{33} At the second trial, the State once again pursued a conviction for intentional child abuse and not negligent child abuse. This time, however, the State limited its theory to intentional child abuse based on Defendant\u2019s own actions as demonstrated by her incriminating statements of intentional abuse and did not pursue a failure-to-act theory. This time Defendant, not the State, presented an alternative theory of a negligent failure to act based on Defendant\u2019s own statements that she may have waited too long to take Baby Mariana to the hospital. Accordingly, in the second trial the jury received a separate, step-down instruction on negligent child abuse resulting in death, tracking UJI 14-603 NMRA (2000, withdrawn 2015).\n{34} In Cabezuela I, we held that it was a misstatement of the law to include the \u201cphrase \u2018failure to act\u2019\u201d in the elements instruction for intentional child abuse, UJI 14-602, when the State was pursuing a conviction for intentional child abuse. Cabezuela I, 2011-NMSC-041, \u00b6\u00b6 20, 27, 36. At the second trial, the district court appears to have followed our instruction in Cabezuela I and did not include the failure-to-act language when it instructed the jury on the elements of intentional child abuse. The district court correctly instructed the jury that the State had to prove that Defendant acted intentionally and that her actions endangered Baby Mariana and ultimately caused her death. Defendant did not object to the elements instruction at the second trial.\nINSTRUCTION NO. 3\nFor you to find Adriana Cabezuela guilty of intentional child abuse resulting in death or great bodily harm, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:\n1. Adriana Cabezuela caused Mariana Barraza to be placed in a situation which endangered the life or health of Mariana Barraza[;]\n2. The defendant acted intentionally;\n3. Adriana Cabezuela\u2019s actions resulted in the death of Mariana Barraza;\n4. Mariana Barraza was under the age of 12;\n5. This happened in New Mexico on or about the 14th day of June, 2007.\nSee UJI-14-602 (\u201cChild abuse; intentional act or negligently \u2018caused\u2019; great bodily harm; essential elements.\u201d).\n{35} Correctly, Defendant does not challenge this instruction on appeal. Instead, Defendant now turns her attention to a separate instruction, not an elements instruction, that defined the word \u201cintentional.\u201d That instruction reads:\nINSTRUCTION NO. 4\nA person acts intentionally when the person purposely does an act. Whether . . . Adriana Cabezuela acted intentionally may be inferred from all of the surrounding circumstances, such as Adriana Cabezuela\u2019s actions or failure to act, conduct and statements.\n(Emphasis added.) See UJI 14-610 (\u201cChild abuse; \u2018intentional\u2019; defined.\u201d).\n{36} Instruction no. 4, the definition instruction for intent, tracks UJI 14-610 and includes the phrase \u201cfailure to act.\u201d Cabezuela I, 2011-NMSC-041, \u00b618. In Cabezuela I, the district court gave the jury this same definition instruction for intentional child abuse, without objection either at trial or on appeal. Id. Similarly, Defendant had no objection to this same definition instruction at her second trial. In this second appeal, she now claims the definition instruction amounted to fundamental error.\n{37} We review unpreserved issues regarding jury instructions for fundamental error. Cabezuela I, 2011-NMSC-041, \u00b6 21. \u201cThe exacting standard of review for reversal for fundamental error requires the question of guilt [be] so doubtful that it would shock the conscience [of the court] to permit the verdict to stand.\u201d State v. Swick, 2012-NMSC-018, \u00b6 46, 279 P.3d 747 (alterations in original) (internal quotation marks and citation omitted). \u201cWith regard to jury instructions, fundamental error occurs when, because an erroneous instruction was given, a court has no way of knowing whether the conviction was or was not based on the lack of the essential element.\u201d Id. Part of the fundamental-error analysis is \u201cwhether a reasonable juror would have been confused or misdirected by the jury instruction.\u201d State v. Sandoval, 2011-NMSC-022, \u00b6 13, 150 N.M. 224, 258 P.3d 1016 (internal quotation marks and citation omitted).\n{38} In this appeal, Defendant focuses on paragraph 37 of Cabezuela I, where this Court \u201crequest[ed] that the UJI Committee for Criminal Cases . . . review UJI 14-602, along with UJI 14-603 and UJI 14-610.\u201d Cabezuela I, 2011-NMSC-041, \u00b6 37. We observed that UJI 14-610, which defines the term \u201cintentional,\u201d includes the phrase \u201cfailure to act.\u201d Cabezuela I, 2011-NMSC-041, \u00b6 37. We further observed that NMSA 1978, Section 30-6-1 (D) (2009) (defining the crime of abuse of a child) \u201cdoes not reference a defendant\u2019s failure to act.\u201d Cabezuela I, 2011-NMSC-041, \u00b6 37. Finally, we requested that the Committee review these jury instructions in their entirety in an effort to reduce confusion. Id. \u00b6\u00b6 36-37.\n{39} In requesting the Committee to review UJI 14-610, we did not hold that including the phrase \u201cfailure to act\u201d in the definition of \u201cintentional\u201d was necessarily incorrect or legally erroneous. We simply invited the Committee to study whether there was a better, more clear way to provide jury guidance. Part of our concern was, and is, that there must be a culpable act that a defendant commits, not just a desire or intention that the abuse occur, in order for a defendant to be convicted of intentional child abuse. Our concern that a culpable act must be identified, however, should not preclude the jury from considering all conduct, including actions and failures to act, surrounding the culpable act itself, as evidence of the accused\u2019s subjective intent.\n{40} In this trial, the elements instruction correctly required the jury to find that Defendant performed an intentional act to convict her of intentional child abuse, not a failure to act. Nonetheless, Defendant argues that the jury could have been misled by the definition instruction that uses the phrase \u201cfailure to act.\u201d Defendant maintains that she could have been convicted of intentional child abuse without the jury actually finding that she acted intentionally. We are not persuaded.\n{41} While the definition instruction does have the words \u201cfailure to act,\u201d it does not equate acting and failing to act as Defendant suggests. In its first sentence the instruction, UJI 14-610, provides that \u201c[a] person acts intentionally when the person purposely does an act.\u201d The second sentence qualifies what may be used as evidence of a person\u2019s intention to act, by inferring a person\u2019s subjective intent from objective evidence. \u201cWhether the [defendant] acted intentionally may be inferred from all of the surrounding circumstances, such as [the defendant\u2019s] actions or failure to act, conduct and statements.\u201d UJI 14-610. Specifically, the jury may infer that a person \u201cpurposefully [performed] an act\u201d by looking at all the circumstances that surrounded the act performed. Thus, the surrounding circumstances necessarily include actions, failures to act, conduct, and statements other than the culpable act that forms the basis for intentional child abuse.\n{42} Nonetheless, we acknowledge the greater clarity in removing altogether any reference to \u201cfailure to act\u201d from the definition instructions. New uniform jury instructions, effective for all cases pending or filed on or after April 3, 2015, no longer include a definition for \u201cintentional,\u201d which is the crux of the discussion in this section. UJI 14-623 NMRA. Instead, the new instructions provide that UJI 14-141 NMRA (\u201cGeneral criminal intent.\u201d) be given to juries to aid them in understanding the legal concept of intent. UJI 14-141 states in relevant part that \u201c[w]hether the defendant acted intentionally may be inferred from all of the surrounding circumstances, such as the manner in which he acts, the means used, [and] his conduct [and any statements made by him].\u201d (alterations in original) (footnote omitted).\n{43} While in Cabezuela I we observed that UJI 14-610 is not necessarily the model of clarity, we did not hold that the district court committed error by giving that instruction to the jury. See 2011-NMSC-041, \u00b6\u00b6 36, 37. In this case, where the State\u2019s theory was based entirely on evidence of what Defendant did, not on what she did not do \u2014 a theory amply supported by substantial trial evidence \u2014 -we fail to find any significant risk of jury confusion, substantial injustice, or a doubtful verdict. Any concerns we may have shared in the past about how to improve UJI 14-610 do not shake our confidence in this jury verdict. W e find no fundamental error in the language of jury instruction no. 4.\nDefendant\u2019s Ineffective Assistance of Counsel Claim Is More Properly Brought in a Habeas Corpus Proceeding\n{44} Defendant further argues that trial counsel provided ineffective assistance because counsel \u201c[f]ailed [t]o [c]all [witnesses [a]nd [p]resent [t]he [d]efense [s]he [Requested.\u201d \u201cFor a successful ineffective assistance of counsel claim, a defendant must first demonstrate error on the part of counsel, and then show that the error resulted in prejudice.\u201d State v. Bernal, 2006-NMSC-050, \u00b6 32, 140 N.M. 644, 146 P.3d 289. \u201cThe record is frequently insufficient to establish whether an action taken by defense counsel was reasonable or if it caused prejudice.\u201d State v. Arrendondo, 2012-NMSC-013, \u00b6 38, 278 P.3d 517. In this case, it is more appropriate for Defendant to make this claim in a habeas corpus proceeding where she \u201cmay actually develop the record with respect to defense counsel\u2019s actions.\u201d Id.\nCONCLUSION\n{45} We affirm Defendant\u2019s conviction, but remand to the district court for resentencing following an evidentiary hearing where it considers any mitigating circumstances that may be present, consistent with this opinion.\n{46} IT IS SO ORDERED.\nRICHARD C. BOSSON, Justice\nWE CONCUR:\nBARBARA J. VIGIL, Chief Justice\nPETRA JIMENEZ MAES, Justice\nEDWARD L. CH\u00c1VEZ, Justice\nCHARLES W. DANIELS, Justice\nDr. Aurelius is the same person as \u201cDr. Michelle Barry\u201d referred to in Cabezuela I. See 2011-NMSC-041, \u00b6 48. At this trial, she identified herself as \u201cDr. Michelle Barry Aurelius.\u201d\nThe district court instructed the jury in instruction no. 5 that if it had \u201ca reasonable doubt as to whether the defendant committed the crime of Intentional [C]hild Abuse Resulting in Death [then it] must proceed to determine whether the defendant committed the included offense of Negligent Child Abuse Resulting in Death.\u201d The instruction for negligent child abuse resulting in death was given as instruction no. 6, and the instruction for intentional child abuse resulting in death was instruction no. 3. We assume that because the jury found Defendant guilty of intentional child abuse, the jurors did as they were instructed and did not go on to consider whether she was guilty of negligent child abuse.", "type": "majority", "author": "BOSSON, Justice." } ], "attorneys": [ "Jorge A. Alvarado, Chief Public Defender", "Allison H. Jaramillo, Assistant Appellate Defender", "Santa Fe, NM", "for Appellant", "Hector H. Balderas, Attorney General", "Nicole Beder, Assistant Attorney General", "Santa Fe, NM", "for Appellee" ], "corrections": "", "head_matter": "IN THE SUPREME COURT OF THE STATE OF NEW MEXICO\nOpinion Number: 2015-NMSC-016\nFiling Date: May 7, 2015\nDocket No. 33,781\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. ADRIANA CABEZUELA, Defendant-Appellant.\nJorge A. Alvarado, Chief Public Defender\nAllison H. Jaramillo, Assistant Appellate Defender\nSanta Fe, NM\nfor Appellant\nHector H. Balderas, Attorney General\nNicole Beder, Assistant Attorney General\nSanta Fe, NM\nfor Appellee" }, "file_name": "0001-01", "first_page_order": 17, "last_page_order": 27 }