{ "id": 716970, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Robert CRISLIP, Defendant-Appellant", "name_abbreviation": "State v. Crislip", "decision_date": "1990-04-26", "docket_number": "No. 11411", "first_page": "412", "last_page": "419", "citations": [ { "type": "official", "cite": "110 N.M. 412" }, { "type": "parallel", "cite": "796 P.2d 1108" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "92 N.M. 320", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557154 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/92/0320-01" ] }, { "cite": "87 N.M. 242", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2832191 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/87/0242-01" ] }, { "cite": "103 N.M. 33", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711314 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/103/0033-01" ] }, { "cite": "346 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "462", "parenthetical": "\" 'Took you a while to dream all that stuff up, too, didn't it?' \"" } ], "opinion_index": 0 }, { "cite": "317 N.C. 661", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4778292 ], "year": 1986, "pin_cites": [ { "page": "667", "parenthetical": "\" 'Took you a while to dream all that stuff up, too, didn't it?' \"" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0661-01" ] }, { "cite": "92 N.M. 563", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557256 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/92/0563-01" ] }, { "cite": "92 N.M. 533", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557146 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/nm/92/0533-01" ] }, { "cite": "102 N.M. 317", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580083 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/102/0317-01" ] }, { "cite": "104 N.M. 506", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594993 ], "weight": 2, "pin_cites": [ { "page": "510" }, { "page": "981" } ], "opinion_index": 0, "case_paths": [ "/nm/104/0506-01" ] }, { "cite": "89 N.M. 737", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2864880 ], "weight": 3, "pin_cites": [ { "page": "738" }, { "page": "587" } ], "opinion_index": 0, "case_paths": [ "/nm/89/0737-01" ] }, { "cite": "105 N.M. 300", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1599000 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/105/0300-01" ] }, { "cite": "131 Ariz. 471", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 739610 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ariz/131/0471-01" ] }, { "cite": "838 F.2d 770", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1310314 ], "opinion_index": 0, "case_paths": [ "/f2d/838/0770-01" ] }, { "cite": "98 N.M. 428", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582450 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/98/0428-01" ] }, { "cite": "91 N.M. 682", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571044 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/91/0682-01" ] }, { "cite": "310 Md. 244", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 2070110 ], "weight": 2, "year": 1987, "pin_cites": [ { "parenthetical": "collecting cases" }, { "parenthetical": "collecting cases" } ], "opinion_index": 0, "case_paths": [ "/md/310/0244-01" ] }, { "cite": "35 L.Ed.2d 616", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1973, "opinion_index": 0 }, { "cite": "93 S.Ct. 1383", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1973, "opinion_index": 0 }, { "cite": "410 U.S. 948", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11985130, 11985212 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/us/410/0948-01", "/us/410/0948-02" ] }, { "cite": "35 L.Ed.2d 260", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1973, "opinion_index": 0 }, { "cite": "93 S.Ct. 948", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1973, "opinion_index": 0 }, { "cite": "409 U.S. 1128", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6512443, 6512741, 6512264, 6513066, 6512556, 6512973, 6512658, 6512083, 6512342, 6512153, 6512890, 6512827 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/us/409/1128-05", "/us/409/1128-08", "/us/409/1128-03", "/us/409/1128-12", "/us/409/1128-06", "/us/409/1128-11", "/us/409/1128-07", "/us/409/1128-01", "/us/409/1128-04", "/us/409/1128-02", "/us/409/1128-10", "/us/409/1128-09" ] }, { "cite": "468 F.2d 269", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 247246 ], "opinion_index": 0, "case_paths": [ "/f2d/468/0269-01" ] }, { "cite": "53 N.M. 514", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580760 ], "weight": 4, "year": 1949, "pin_cites": [ { "page": "524" }, { "page": "431" } ], "opinion_index": 0, "case_paths": [ "/nm/53/0514-01" ] } ], "analysis": { "cardinality": 943, "char_count": 20895, "ocr_confidence": 0.804, "pagerank": { "raw": 1.4789256632374857e-07, "percentile": 0.660735625899425 }, "sha256": "e16a438e9cb14ce8da612a92cb16efda089befbff41ba9f3cb86853eda2c0fa0", "simhash": "1:2e3ed9226bee48d3", "word_count": 3417 }, "last_updated": "2023-07-14T22:33:30.469339+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "ALARID and APODACA, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Robert CRISLIP, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nHARTZ, Judge.\nDefendant appeals his conviction by a jury of child abuse resulting in death. NMSA 1978, \u00a7 30-6-1 (Repl.Pamp.1984). He raises the following contentions on appeal: (1) the trial court erred in upholding the assertion of a fifth amendment privilege by defendant\u2019s wife, who at the time was appealing her own conviction of the same offense in a prior trial; (2) the state\u2019s failure to grant use immunity to defendant\u2019s wife constituted plain error; (3) the admission at his trial of a recording of the testimony of defendant\u2019s wife at her own trial was error because the testimony had been coerced; (4) the admission of the prior testimony of defendant\u2019s wife violated defendant\u2019s right of confrontation; (5) the trial court erred in not permitting defendant to question his wife before the jury and in admitting the prior testimony of defendant\u2019s wife without advising the jury that she had been convicted for child abuse; (6) the trial court erred in refusing defendant\u2019s tendered instructions and in submitting its own instruction defining the word \u201cpermit\u201d in the child-abuse statute; (7) the trial court should have granted a mistrial because of the prosecutor\u2019s allegedly inflammatory question to defendant; (8) defendant was denied his right to effective assistance of counsel; and (9) the child-abuse statute is unconstitutional. We affirm defendant\u2019s conviction.\nI. TESTIMONY OF DEFENDANT\u2019S WIFE\nWe first discuss defendant\u2019s five appellate issues relating to testimony by his wife.\nDefendant and his wife were each charged with child abuse resulting in the death of defendant\u2019s stepson. Defendant and his wife were tried separately. We need not recite the evidence, except to state that it revealed multiple injuries to the child, the only questions being when and how the injuries were inflicted.\nThe prosecution called defendant\u2019s wife as a witness. Outside the presence of the jury she stated her intention to invoke her privilege against self-incrimination. When the trial court upheld the claim, the prosecutor was permitted to play for the jury a recording of her testimony at her own trial.\nA. Privilege Against Self-Incrimination\nAlthough defendant\u2019s wife had testified in her defense at her own trial, under New Mexico law she did not thereby waive her right to claim the privilege at defendant\u2019s trial. In Apodaca v. Viramontes, 53 N.M. 514, 212 P.2d 425 (1949), the state claimed that a witness who had testified before the grand jury could not claim the privilege against self-incrimination when called to give identical testimony at trial. The court rejected the state\u2019s position, adopting the following statement of the law:\n\u201cA person who has waived his privilege of silence in one trial or proceeding is not estopped to assert it as to the same matter in a subsequent trial or proceeding. The privilege attaches to the witness in each particular case in which he may be called on to testify, and whether or not he may claim it is to be determined without reference to what he said when testifying as a witness on some other trial, or on a former trial of the same case, and without reference to his declarations at some other time or place.\u201d\nId. at 524, 212 P.2d at 431 (quoting 58 Am.Jur. \u00a7 99, at 82 [81 Am.Jur.2d Witnesses \u00a7 65 (1976)]). A more recent decision in another jurisdiction has adopted the same principle in circumstances virtually identical to those here. In Ottomano v. United States, 468 F.2d 269 (1st Cir.1972), cert. denied, 409 U.S. 1128, 93 S.Ct. 948, 35 L.Ed.2d 260, reh\u2019g denied, 410 U.S. 948, 93 S.Ct. 1383, 35 L.Ed.2d 616 (1973), a witness who had been convicted and sentenced after testifying at his own trial was called to testify as a witness at the trial of his alleged co-conspirator. The court upheld the witness\u2019s claim of a fifth amendment privilege.\nPerhaps defendant\u2019s wife could have been asked certain questions that had no potential to elicit incriminating responses; but defendant\u2019s counsel declined the trial court\u2019s offer to ask defendant\u2019s wife questions out of the presence of the jury, so we have no record upon which to make a finding that the claim of privilege was improper in any particular.\nAlthough defendant\u2019s wife had already been tried and convicted, her conviction was being reviewed on appeal. Given the possibility of reversal (which was, in fact, the result of her appeal), courts overwhelmingly hold that the claim of privilege may be raised while a direct appeal is pending. See Ellison v. State, 310 Md. 244, 528 A.2d 1271 (1987) (collecting cases).\nDefendant argues that the trial court should not have been concerned about erroneously compelling his wife to testify, because if the compulsion was improper, the evidence could not be used at any subsequent criminal proceedings against her. See State v. Archunde, 91 N.M. 682, 579 P.2d 808 (Ct.App.1978); SCRA 1986, 11-512. In substance what defendant is arguing is that the trial court was compelled to grant defendant\u2019s wife immunity from use against her of any testimony she gave at his trial. The trial court, however, has no such authority. The grant of immunity to a witness is, absent prosecutorial misconduct in deliberately intending to disrupt the fact-finding process, within the sole control of the prosecution. See State v. Sanchez, 98 N.M. 428, 649 P.2d 496 (Ct.App.1982).\nIn his second appellate contention defendant argues that there was such prosecutorial misconduct and therefore the state had an obligation to grant his wife immunity from use against her of her testimony in his trial. We reject this contention.\nFirst, the record does not compel us to find that the prosecutor\u2019s failure to grant immunity was for improper reasons. On the contrary, the state\u2019s failure to grant immunity does not in itself establish bad faith. Given the obvious difficulties of proving at a later trial of defendant\u2019s wife that the later trial had not been tainted by indirect prosecutorial use of immunized testimony, see 2 P. Robinson, Criminal Law Defenses \u00a7 205(c) (1984), the state\u2019s failure to volunteer to grant immunity is understandable. In addition, the state\u2019s willingness to admit her prior testimony (discussed in the next section of this opinion) indicates that the state was not trying to distort the fact-finding process, particularly since defendant made no suggestion, much less an offer of proof, of what defendant\u2019s wife would testify to that was not contained in her prior testimony.\nMoreover, this appellate contention was waived at trial. Although defendant argues that the state\u2019s failure to grant immunity to the witness was plain error, see SCRA 1986, 11-103(D) or fundamental error, see SCRA 1986, 12-216, this would be a highly inappropriate circumstance in which to apply either doctrine. During argument at trial concerning the claim of privilege by defendant\u2019s wife, defense counsel stated, \u201cI don\u2019t think the State has to offer immunity.\u201d We would only be encouraging sharp practices if we permitted a defendant to waive a claim explicitly, take his chances at trial, and then rely on plain or fundamental error in the event of an adverse verdict.\nB. Admissibility of Testimony from Prior Trial\nAfter the trial court upheld the claim of privilege by defendant\u2019s wife, the state played for the jury portions of a tape recording of her testimony at her own trial. As the state pointed out in offering the testimony, the testimony was not admissible under any recognized exception to the hearsay rule. Because defendant\u2019s counsel had not had an opportunity to cross-examine defendant\u2019s wife at her trial, the requirements for admission of former testimony were not satisfied. See SCRA 1986, 11-804(B)(1). Defendant now includes among his appellate issues the contentions that: (1) the taped testimony was inadmissible because his wife\u2019s testimony at her own trial was coerced; and (2) the use of her testimony violated his right of confrontation.\nWe need not consider these appellate contentions, however, because they were waived below. See R. 11-103(A)(1). Defense counsel made quite clear to the trial court that if defendant\u2019s wife was permitted to invoke her privilege against testifying at his trial, he wished the tape recording of her testimony at her own trial to be played to the jury. At a hearing on the day of trial, defense counsel stated:\nI propose to put [defendant\u2019s wife] on the stand; and if she refuses to answer any questions, I do have the tapes from the last trial, your Honor. I propose to ask that the court allow her prior testimony as prior recorded testimony as an exception to that rule, the hearsay rule, or any rule of self-incrimination.\nLater that day, after the trial court ruled on the claim of privilege, defense counsel stated:\nIn light of the court\u2019s ruling that [defendant\u2019s wife] will be taking the fifth and using her constitutional privilege, we are going to play the tapes of her prior recorded testimony, which I per se am not objecting to. However, at this time Judge, just for the record, I would like to make a motion for a continuance at this time, that I feel I am being denied my effective right of cross-examination of the defendant [sic] and that if she\u2019s an absent defendant [sic], then my client is losing his constitutional right of confrontation against the witnesses against him and of his own witnesses, for that fact, Judge, just for the record, I do make a motion for a continuance at this time.\nThere is no question that defense counsel failed to raise any claim relating to the involuntariness of the testimony from the prior trial. As for the claim of denial of confrontation, defendant\u2019s brief-in-chief acknowledges that the request for a continuance was apparently to await the determination of the appeal of defendant\u2019s wife, since affirmance of her conviction would eliminate the possibility of future incrimination by her testimony. Thus, counsel\u2019s reference to the right of cross-examination and right of confrontation presumably relate to a claim that the trial should be continued with the hope that at a later time he would be able to cross-examine defendant\u2019s wife in the absence of any claim of privilege. The comments of defense counsel cannot reasonably be construed as objecting to the use of the tape recording if defendant\u2019s wife was not going to testify. If defendant had wished to object to use of the tape recording on grounds of violation of the right to confrontation or of hearsay rules, it would have been easy for him to do so. Only a few minutes earlier the prosecutor had stated:\nWe take the position that even though the requirements of the rule on prior sworn testimony are not met in this case, by a long shot, that if the court were to give the jury a cautionary instruction as to the nature of this testimony, that we can deal with that subject.\nRather than referring to that clearly winning argument against use of the taped testimony, defense counsel stated, and we repeat, \u201cwe are going to play the tapes of her prior recorded testimony, which I per se am not objecting to.\u201d\nIn short, we have no doubt that defense counsel made the tactical decision that, in the absence of live testimony by defendant\u2019s wife, the prior testimony of his wife would be advantageous to defendant. In that circumstance, we will not find plain error or fundamental error, even though the evidence would have been inadmissible if either party had objected. See 1 D. Louisell & C. Mueller, Federal Evidence \u00a7 21, at 127 (1979) (\u201cIf the record clearly reflects or even just smacks of a strategic decision of trial counsel not to object, reversal for plain error is unlikely.\u201d).\nC. Questioning Defendant\u2019s Wife Before Jury and Advising Jury of Her Prior Conviction\nIn an effort to deflect blame onto his wife, defendant sought (1) to require her to invoke her privilege against self-incrimination in the presence of the jury and (2) to offer evidence of her prior conviction.\nHe contends that his right to due process was violated by the trial court\u2019s refusal of his request to call his wife as a witness and question her before the jury, even though she intended to invoke the privilege against self-incrimination. The sole purpose of such a procedure, however, would be to enable the jury to draw an inference of defendant\u2019s innocence from the claim of self-incrimination by his wife. Such inferences are not permissible. See SCRA 1986, 11-513(A). For that reason, the rules provide that claims of privilege should be made outside the presence of the jury, to the extent practicable. R. 11-513(B). The trial court correctly denied defendant\u2019s request.\nDefendant also complains that he was precluded from introducing the fact of her prior conviction. On appeal he contends that evidence of the prior conviction would have been admissible to impeach her credibility. At trial, however, defendant sought admission of the prior conviction solely for the purpose of establishing that his wife was guilty of the crime with which he was charged. The trial court properly ruled that her conviction was not relevant for that purpose. See, e.g., Bridge v. Lynaugh, 838 F.2d 770 (5th Cir.1988); State v. Corrales, 131 Ariz. 471, 641 P.2d 1315 (Ct.App.1982). Because defendant did not argue at trial that the conviction was admissible for impeachment purposes (perhaps because he wanted the jury to believe the testimony), we will not consider that issue on appeal. See State v. Doran, 105 N.M. 300, 731 P.2d 1344 (Ct.App.1986).\nII. INSTRUCTIONS\nThe pertinent statutory language reads:\nC. Abuse of a child consists of a person knowingly, intentionally or negligently, and without justifiable cause, causing or permitting a child to be:\n(1) placed in a situation that may endanger the child\u2019s life or health; or\n(2) tortured, cruelly confined or cruelly punished;\n(3) exposed to the inclemency of the weather.\n\u00a7 30-6-l(C).\nThe trial court submitted a definitional instruction stating:\n\u201cPermit\u201d as used in these instructions means:\nvt 1: to consent to expressly or formally\n2: to give leave: AUTHORIZE\n3: to make possible vi: to give an opportunity\n(We assume that \u201cvt\u201d means \u201ctransitive verb\u201d and \u201cvi\u201d means \u201cintransitive verb\u201d; but the instructions do not define the abbreviations.) The trial court rejected defendant\u2019s requested instruction No. 1, which read:\nThe term, \u201cpermit\u201d, as used in these instructions means \u201cto give permission to\u201d; \u201cto authorize\u201d; \u201cto grant by express consent\u201d.\nDefendant makes no claim that he objected to the trial court\u2019s definitional instruction.\nThe trial court's denial of defendant\u2019s requested instruction No. 1 was proper. Defendant\u2019s definition of the term \u201cpermit\u201d is too narrow. It encompasses only affirmative, or active, consent; it does not include passive consent \u2014 permitting through inaction. Yet our cases establish that passive permission is encompassed by the statute.\nIn State v. Adams, 89 N.M. 737, 738, 557 P.2d 586, 587 (Ct.App.1976), we affirmed defendant\u2019s conviction for child abuse resulting in the death of his daughter on the ground that the evidence \u201cpermits the inference that [defendant] did not act as a reasonably prudent person in failing to take action in connection with the abuse [committed by his wife].\u201d The court noted that the defendant, as a parent, had a duty to care for the infant child and knew of the abuse being committed. His testimony showed that he took no action to care for the child; he admitted \u201chaving discussed some of the \u2018marks\u2019 with [his wife], [but] felt that [his wife] was a good mother and attributed most of the bruises and injuries to [the child\u2019s] play with her older brother.\u201d Id.\nIn State v. Leal, 104 N.M. 506, 510, 723 P.2d 977, 981 (Ct.App.1986), in which we reversed a conviction for child abuse resulting in death because of insufficient evidence to sustain the verdict, we nevertheless stated, \u201c \u2018[P]ermit' refers to the proscribed act, the passive act of allowing the abuse to occur.\u201d\nBecause defendant\u2019s requested instruction No. 1 does not encompass passive permission, it was misleading and should not have been given. See State v. Sparks, 102 N.M. 317, 694 P.2d 1382 (Ct.App.1985) (requested instruction properly refused when it sets forth a more exacting requirement than the statute).\nAlthough defendant\u2019s brief-in-chief claims that the trial court\u2019s instruction defining \u201cpermit\u201d is incorrect, he does not refer to any place in the record where he objected to the instruction, other than the implicit objection contained in his submission of his own requested instruction on this subject. We need not decide whether such an implicit objection is sufficient to preserve error. See SCRA 1986, 5-608(D). We reject his claim that defining \u201cpermit\u201d to include \u201cto make possible\u201d or \u201cto give an opportunity\u201d improperly broadens the statutory definition. Adams and Leal support the trial court\u2019s instruction.\nDefendant also complains of the rejection of his requested instruction No. 2, which states, \u201cNormal parental action or inaction is not abuse.\u201d Yet insofar as the requested instruction accurately stated the law, it was already covered by the trial court\u2019s instruction stating the elements of the offense and the instruction defining \u201cintentionally\u201d and \u201cnegligently.\u201d In particular, the trial court instructed the jury that \u201c[a] person acts negligently when he does an act which a reasonably prudent person would foresee as involving an unreasonable risk of injury to another and which such person, in the exercise of ordinary care, would not do.\u201d If the jury had found that defendant had acted as a reasonably prudent parent, it could not have followed the trial court\u2019s instructions and still convicted defendant of the crime. Therefore, defendant\u2019s requested instruction No. 2 was properly rejected by the trial court. See State v. Sparks (court does not err in refusing a requested instruction if the subject matter of the instruction is adequately covered by other instructions).\nIII. ALLEGED IMPROPER QUESTIONING OF DEFENDANT BY PROSECUTOR\nWhile the prosecutor was cross-examining defendant concerning whether he could have diapered the baby with one hand, the trial court sustained an objection to the questioning, stating that \u201cwe\u2019ve gone into that diaper enough.\u201d The prosecutor then asked, \u201cIsn\u2019t that just another lie, Mr. Crislip?\u201d Defense counsel objected and the trial court ruled that there would be no more questions on the subject. The court, however, denied defense counsel\u2019s motion for a mistrial.\nThe trial court has wide discretion to control examination by counsel to prevent harassment of witnesses and inflaming the jury. See SCRA 1986, 11-611(A); State v. Smith, 92 N.M. 533, 591 P.2d 664 (1979); State v. Davis, 92 N.M. 563, 591 P.2d 1160 (Ct.App.1979); 3 D. Louisell & C. Mueller, supra, \u00a7 334. We see no abuse of discretion in this case in the trial court\u2019s warning counsel but not declaring a mistrial. The question had a factual basis. Defendant had previously testified that he had falsely pleaded guilty to another charge in order to get out of jail. It is not error per se to ask a witness if he is lying. Cf. State v. Mitchell, 317 N.C. 661, 667, 346 S.E.2d 458, 462 (1986) (\u201c \u2018Took you a while to dream all that stuff up, too, didn\u2019t it?\u2019 \u201d).\nIV. INEFFECTIVE ASSISTANCE OF COUNSEL\nDefendant claims that if we hold that his trial counsel waived objection to the admissibility of his wife\u2019s prior testimony, then such waiver constituted ineffective assistance of counsel. His counsel\u2019s decision, however, was clearly a tactical one. The record establishes that defense counsel\u2019s decision not to object to the taped testimony was a considered judgment, not an oversight. We have reviewed the summaries of the evidence provided by counsel in their briefs and find that the tactical decision was not so patently inconsistent with competent representation as to constitute ineffective assistance of counsel. See State v. Talley, 103 N.M. 33, 702 P.2d 353 (Ct.App.1985).\nV. CONSTITUTIONALITY OF STATUTE\nDefendant also contends that the statute under which he was convicted is unconstitutional because it imposes lengthy sentences based upon strict liability and because civil, not criminal, negligence standards are applied in determining guilt. As he acknowledges, however, our precedents are to the contrary. See State v. Lucero, 87 N.M. 242, 531 P.2d 1215 (Ct.App.1975). Cf. State v. Coe, 92 N.M. 320, 587 P.2d 973 (Ct.App.1978) (statute is not unconstitutionally vague).\nVI.CONCLUSION\nWe affirm defendant\u2019s conviction.\nIT IS SO ORDERED.\nALARID and APODACA, JJ., concur.", "type": "majority", "author": "HARTZ, Judge." } ], "attorneys": [ "Ellen Bayard, Santa Fe, for defendant-appellant.", "Hal Stratton, Atty. Gen. and William McEuen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "796 P.2d 1108\nSTATE of New Mexico, Plaintiff-Appellee, v. Robert CRISLIP, Defendant-Appellant.\nNo. 11411.\nCourt of Appeals of New Mexico.\nApril 26, 1990.\nCertiorari Denied June 19, 1990.\nEllen Bayard, Santa Fe, for defendant-appellant.\nHal Stratton, Atty. Gen. and William McEuen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0412-01", "first_page_order": 440, "last_page_order": 447 }