{ "id": 1558862, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Kenneth YARBOROUGH, Defendant-Appellant", "name_abbreviation": "State v. Yarborough", "decision_date": "1995-09-13", "docket_number": "No. 15794", "first_page": "669", "last_page": "676", "citations": [ { "type": "official", "cite": "120 N.M. 669" }, { "type": "parallel", "cite": "905 P.2d 209" } ], "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": "82 N.M. 235", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5334686 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0235-01" ] }, { "cite": "284 U.S. 299", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5719289 ], "weight": 5, "year": 1932, "pin_cites": [ { "page": "304" }, { "page": "182" }, { "page": "304" }, { "page": "182" } ], "opinion_index": 0, "case_paths": [ "/us/284/0299-01" ] }, { "cite": "102 N.M. 274", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580050 ], "weight": 8, "year": 1985, "pin_cites": [ { "page": "277" }, { "page": "925" }, { "page": "277" }, { "page": "925" }, { "page": "278" }, { "page": "926", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/102/0274-01" ] }, { "cite": "40 N.M. 367", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842073 ], "weight": 8, "year": 1936, "pin_cites": [ { "page": "368, 370" }, { "page": "209, 210" }, { "page": "369" }, { "page": "210" }, { "page": "369" }, { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/nm/40/0367-01" ] }, { "cite": "116 N.M. 83", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727670 ], "weight": 9, "pin_cites": [ { "page": "85" }, { "page": "215" }, { "page": "85" }, { "page": "215" }, { "page": "85" }, { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0083-01" ] }, { "cite": "416 N.E.2d 502", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "pin_cites": [ { "page": "507", "parenthetical": "declining to hold that vehicular homicide is a lesser-ineluded offense of manslaughter" } ], "opinion_index": 0 }, { "cite": "382 Mass. 387", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 339620 ], "year": 1981, "pin_cites": [ { "parenthetical": "declining to hold that vehicular homicide is a lesser-ineluded offense of manslaughter" } ], "opinion_index": 0, "case_paths": [ "/mass/382/0387-01" ] }, { "cite": "115 N.M. 93", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725477 ], "weight": 4, "pin_cites": [ { "page": "96" }, { "page": "330" }, { "page": "96" }, { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0093-01" ] }, { "cite": "116 N.M. 565", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727640 ], "weight": 4, "pin_cites": [ { "page": "573" }, { "page": "1217" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0565-01" ] }, { "cite": "588 P.2d 554", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1978, "opinion_index": 0 }, { "cite": "92 N.M. 353", "category": "reporters:state", "reporter": "N.M.", "year": 1978, "opinion_index": 0 }, { "cite": "92 N.M. 320", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557154 ], "weight": 2, "pin_cites": [ { "page": "321" }, { "page": "974" } ], "opinion_index": 0, "case_paths": [ "/nm/92/0320-01" ] }, { "cite": "794 P.2d 734", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1990, "opinion_index": 0 }, { "cite": "110 N.M. 260", "category": "reporters:state", "reporter": "N.M.", "year": 1990, "opinion_index": 0 }, { "cite": "110 N.M. 412", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716970 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/110/0412-01" ] }, { "cite": "87 N.M. 239", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2832712, 2836866, 2835228 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/87/0239-01", "/nm/87/0239-03", "/nm/87/0239-02" ] }, { "cite": "87 N.M. 242", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2832191 ], "weight": 2, "pin_cites": [ { "page": "244" }, { "page": "1217" } ], "opinion_index": 0, "case_paths": [ "/nm/87/0242-01" ] }, { "cite": "98 N.M. 204", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582561 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "206", "parenthetical": "holding that because there is a compelling public interest in preventing harm to children, child abuse is a strict liability crime and criminal intent is not required" }, { "page": "408", "parenthetical": "holding that because there is a compelling public interest in preventing harm to children, child abuse is a strict liability crime and criminal intent is not required" } ], "opinion_index": 0, "case_paths": [ "/nm/98/0204-01" ] }, { "cite": "85 N.M. 365", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2774825 ], "weight": 10, "pin_cites": [ { "page": "366" }, { "page": "694" }, { "page": "366" }, { "page": "694" }, { "page": "367" }, { "page": "695" }, { "page": "368" }, { "page": "696" } ], "opinion_index": 0, "case_paths": [ "/nm/85/0365-01" ] }, { "cite": "58 N.M. 56", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587645 ], "weight": 2, "year": 1954, "pin_cites": [ { "page": "60", "parenthetical": "showing of wanton and reckless operation of an automobile required to convict defendant of involuntary manslaughter" }, { "page": "672", "parenthetical": "showing of wanton and reckless operation of an automobile required to convict defendant of involuntary manslaughter" } ], "opinion_index": 0, "case_paths": [ "/nm/58/0056-01" ] }, { "cite": "66 N.M. 175", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2845991 ], "weight": 2, "year": 1959, "pin_cites": [ { "parenthetical": "upholding involuntary manslaughter conviction where there was sufficient evidence that defendant was driving in an unsafe manner and under the influence of intoxicating liquor" }, { "parenthetical": "upholding involuntary manslaughter conviction where there was sufficient evidence that defendant was driving in an unsafe manner and under the influence of intoxicating liquor" } ], "opinion_index": 0, "case_paths": [ "/nm/66/0175-01" ] }, { "cite": "77 N.M. 225", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2806435 ], "weight": 2, "year": 1966, "pin_cites": [ { "parenthetical": "holding that neither high speed alone nor speed accompanied by other negligent acts are sufficient to sustain involuntary manslaughter conviction" }, { "parenthetical": "holding that neither high speed alone nor speed accompanied by other negligent acts are sufficient to sustain involuntary manslaughter conviction" } ], "opinion_index": 0, "case_paths": [ "/nm/77/0225-01" ] }, { "cite": "52 N.M. 363", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1579513 ], "weight": 3, "year": 1948, "pin_cites": [ { "page": "365" }, { "page": "987" } ], "opinion_index": 0, "case_paths": [ "/nm/52/0363-01" ] }, { "cite": "42 N.M. 500", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1569812 ], "weight": 6, "year": 1938, "pin_cites": [ { "page": "511" }, { "page": "281" }, { "page": "513" }, { "page": "281", "parenthetical": "Zinn, J., concurring" } ], "opinion_index": 0, "case_paths": [ "/nm/42/0500-01" ] }, { "cite": "151 N.E. 676", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1926, "pin_cites": [ { "page": "679" } ], "opinion_index": 0 }, { "cite": "321 Ill. 11", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5168444 ], "year": 1926, "opinion_index": 0, "case_paths": [ "/ill/321/0011-01" ] }, { "cite": "41 N.M. 426", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571467 ], "weight": 4, "year": 1937, "pin_cites": [ { "page": "428" }, { "page": "758" } ], "opinion_index": 0, "case_paths": [ "/nm/41/0426-01" ] }, { "cite": "115 N.M. 215", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725427 ], "weight": 21, "year": 1993, "pin_cites": [ { "page": "222" }, { "page": "365" }, { "page": "220" }, { "page": "363" }, { "page": "222" }, { "page": "365" }, { "page": "222" }, { "page": "365" }, { "page": "222" }, { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0215-01" ] } ], "analysis": { "cardinality": 1130, "char_count": 28153, "ocr_confidence": 0.705, "pagerank": { "raw": 9.137618005383785e-08, "percentile": 0.5075201295519546 }, "sha256": "23be25fec2a419feef43c4590f1349e6da3ab92b0e46f8dde7777b7bef7bba99", "simhash": "1:9326ff4618a9bda4", "word_count": 4496 }, "last_updated": "2023-07-14T17:50:53.788074+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "APODACA, C.J., and DONNELLY, J., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Kenneth YARBOROUGH, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nFLORES, Judge.\n1.Defendant appeals his conviction for involuntary manslaughter by careless driving. We consolidate the issues raised by Defendant on appeal and address them as follows: (1) whether a showing of criminal negligence is required for a felony involuntary manslaughter conviction and (2) whether the specific homicide by vehicle statute preempts the prosecution of vehicular killings under the general involuntary manslaughter statute. We reverse.\nFACTUAL AND PROCEDURAL BACKGROUND\n2. While driving northbound on a southbound lane of Interstate 25, Angelita Castillo struck Gretchen Bright\u2019s vehicle head-on. Castillo\u2019s car ended up in the middle of the two traffic lanes, facing the wrong way, the front side turned slightly to the west. Immediately after the collision, Jill Cornell drove up to the scene and parked her ear on, or partially on, the shoulder of the right traffic lane, near Castillo\u2019s vehicle. At about the same time, John Coriz also pulled up and parked his car on the side of the interstate. Coriz got out of his car and stood in the middle of the interstate talking to Castillo, advising her not to move her car. During this time, Bright was standing partially in the right lane talking to Cornell, who was still in the driver\u2019s side of her car.\n3. Meanwhile, Brenda Kumagai was driving southbound on Interstate 25 with her three sons when she saw headlights in the distance. Kumagai slowly pulled over onto the right shoulder and stopped before reaching the accident scene. She then proceeded slowly toward the accident scene in the right lane and pulled up behind Cornell\u2019s car to see if anyone needed help. Kumagai\u2019s car was partially on the shoulder and partially sticking out into the right lane of the interstate. The rear-end of her car was in the road because there were cars around her, and she was not sure if she could fit completely onto the shoulder. She was about six to eight feet away from Castillo\u2019s car. Kumagai did not have her vehicle\u2019s hazard lights on and did not see any of the other cars\u2019 hazard lights on either. As she was moving out of the space behind Cornell\u2019s car, onto the right lane of the interstate, her car was hit from behind by Defendant.\n4. Defendant, who was driving a van, and his girlfriend, Victoria Bertch, were traveling southbound on Interstate 25 when they came upon the accident scene. Bertch testified that while she was fiddling around with a tape player behind her seat, Defendant said something which caused her to turn around. He said, \u201cI\u2019ll have to go through them.\u201d Bertch saw cars in the road and thought there was enough room to drive between them. She testified that she was not afraid and that driving through the accident scene seemed like the logical thing to do.\n5. Defendant remembered that he turned on the dome light in the van and looked down at the tapes behind the passenger seat while Bertch was trying to play some music. Defendant saw the lights of a car facing the wrong way and angled on the road. Defendant\u2019s reaction was to try to go through the opening between the car parked on the right shoulder at a diagonal position and the car that was obstructing the center of the road. Coriz and the accident reconstructionist testified that Defendant drove the van from the left lane to the right lane before attempting to go through the opening. The reconstructionist characterized this movement as a \u201ccorrective action\u201d and even as an \u201cevasive action\u201d to avoid hitting the vehicle.\n6. At the time of the impact, it was estimated that Defendant was traveling between fifty-four and sixty-two miles per hour. Defendant testified that he did not brake because he thought he would have better control over the vehicle if he did not have the brakes locked. Defendant admitted that he did not see the initial accident scene until he was only a few hundred feet from it and that he did not \u201cattend to everything\u201d while he was driving.\n7. Kumagai remembered Coriz waiving his arms and yelling as he stood between her car and the headlights of Castillo\u2019s car. Castillo testified that she reached in her car to flash her lights as Defendant\u2019s van approached, but does not know if she sueceeded. Coriz pushed Castillo away from the van\u2019s path, and then dodged the van himself.\n8. When the van hit the rear of Kumagai\u2019s car, Bright, who was standing in the road talking with Cornell, was thrown about twenty feet. The van became airborne, spun around clockwise, and landed on the hood of Cornell\u2019s parked ear. Cornell and her passenger were not injured. Kumagai\u2019s son, Steven Kumagai, was killed.\n9. Defendant was indicted for homicide by vehicle for the death of Steven Kumagai and two counts of great bodily harm by vehicle for injuries to Brenda Kumagai and Bright. At trial, the State proffered an instruction for involuntary manslaughter by careless driving as a \u201clesser[-]included\u201d offense of homicide by vehicle. Defendant objected to the State\u2019s requested jury instruction and argued that under Santillanes v. State, 115 N.M. 215, 849 P.2d 358 (1993), a showing of criminal negligence, not civil negligence in the form of careless driving, is necessary for a felony conviction. Defendant further argued that our legislature intended to preempt the involuntary manslaughter statute in motor vehicle cases when it enacted the homicide by vehicle statute and that involuntary manslaughter could therefore not be a lesser included offense of homicide by vehicle. Defendant also proffered his own jury instructions on \u201ccivil proximate cause\u201d and \u201cindependent intervening cause\u201d which the trial court rejected. The trial court accepted the State\u2019s instruction and instructed the jury on a civil negligence standard based on the careless driving statute. That instruction read as follows:\nFor you to find [Defendant] guilty of Involuntary Manslaughter as a lesser[-]included offense of Homicide by Vehicle, the [S]tate must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:\n1. [Defendant] operated a motor vehicle on a highway in a careless, inattentive, or imprudent manner without due regard for the width, grade, curves, corners, traffic, weather, road conditions^] and all other attendant circumstances;\n2. The act of [Defendant] caused the death of Steven Kumagai;\n3. This happened in New Mexico on or about the 26th day of August, 1990.\n10. Defendant was convicted of the purported lesser-included offense of involuntary manslaughter by careless driving. \u201cInvoluntary manslaughter\u201d is defined as \u201cmanslaughter committed in the commission of an unlawful act not amounting to [a] felony, or in the commission of a lawful act which might produce death in an unlawful manner or without due caution and circumspection.\u201d NMSA 1978, \u00a7 30-2-3(B) (Repl.Pamp.1994). \u201cManslaughter is the unlawful killing of a human being without malice.\u201d Section 30-2-3.\nDISCUSSION\nI. Requirement of Criminal Negligence\n11. We begin with Defendant\u2019s contention that it is reversible error and a denial of due process for careless driving \u2014 which requires a finding of only civil negligence \u2014 to be the basis for a felony involuntary manslaughter conviction. In order to determine whether a showing of criminal negligence is required for a felony involuntary manslaughter conviction, we review the historical treatment of involuntary manslaughter convictions by our appellate courts.\n12. In the past, New Mexico appellate courts required that a defendant\u2019s conduct be criminally negligent, or reckless, wanton, or willful in order to be convicted of involuntary manslaughter, for causing the death of another by motor vehicle. In State v. Harris, 41 N.M. 426, 70 P.2d 757 (1937), where the defendant accidentally struck and killed a pedestrian, our Supreme Court adopted an Illinois Supreme Court rule stating that \u201c \u2018an injury caused by mere negligence, not amounting to a reckless, willful, and wanton disregard of consequences to others, cannot be made the basis of a criminal action.\u2019 \u201d Id. at 428, 70 P.2d at 758 (quoting People v. Allen, 321 Ill. 11, 151 N.E. 676, 679 (1926)). Similarly, in State v. Sisneros, 42 N.M. 500, 82 P.2d 274 (1938), where the defendant struck and killed a man pumping air into the tire of his car on the side of the highway, our Supreme Court reiterated that \u201c[i]t was incumbent upon the state to prove criminal negligence\u201d in order to convict the defendant of involuntary manslaughter. Id. at 511, 82 P.2d at 281.\n13. Thereafter, our Supreme Court adhered to the standard adopted in Harris, stating, in City of Raton v. Rice, 52 N.M. 363, 365, 199 P.2d 986, 987 (1948), that, in the context of involuntary manslaughter by reckless driving, ordinary negligence \u201cnot amounting to wilful or wanton disregard of consequences cannot be made the basis of a criminal action.\u201d The Supreme Court went on to say that \u201c\u2018[m]ere negligence is not sufficient. It may be sufficient to compel the driver to respond in damages. However, when it comes to responding to an accusation of involuntary manslaughter, with the possibility of a penitentiary sentence, a different rule is called into play.\u2019 \u201d Id. (quoting Sisneros, 42 N.M. at 513, 82 P.2d at 281 (Zinn, J., concurring)); see also State v. Hayes, 77 N.M. 225, 421 P.2d 439 (1966) (holding that neither high speed alone nor speed accompanied by other negligent acts are sufficient to sustain involuntary manslaughter conviction); State v. Deming, 66 N.M. 175, 344 P.2d 481 (1959) (upholding involuntary manslaughter conviction where there was sufficient evidence that defendant was driving in an unsafe manner and under the influence of intoxicating liquor); State v. Clarkson, 58 N.M. 56, 60, 265 P.2d 670, 672 (1954) (showing of wanton and reckless operation of an automobile required to convict defendant of involuntary manslaughter).\n14. It was not until State v. Grubbs, 85 N.M. 365, 512 P.2d 693 (Ct.App.1973), that the foundation was laid for applying a civil negligence standard to an involuntary manslaughter conviction, although not in the context of a vehicular killing. In Grubbs, the defendant shot and killed the decedent and was convicted of involuntary manslaughter by an unlawful act not amounting to a felony. Id. at 366, 512 P.2d at 694. The unlawful act was the negligent use of a weapon under what is now NMSA 1978, Section 30-7-4(A)(3) (Repl.Pamp.1994). Grubbs, 85 N.M. at 366, 512 P.2d at 694. The Grubbs Court distinguished Clarkson and Hayes on the grounds that neither case discussed the application of the criminal negligence standard to the unlawful act portion of the involuntary manslaughter statute and that those cases involved vehicular killings. Id. at 367, 512 P.2d at 695. The Grubbs Court upheld the defendant\u2019s conviction, holding that the word \u201cnegligent\u201d in the \u201cnegligent use of a deadly weapon\u201d statute was to be given its ordinary meaning because the legislature failed to indicate that it intended a different construction of the term. Id. at 368, 512 P.2d at 696.\n15.After Grubbs, application of the civil negligence standard was extended to child abuse cases, because New Mexico appellate courts interpreted the child abuse statute as a strict liability crime due to the compelling state interest in protecting children. See State v. Lucero, 98 N.M. 204, 206, 647 P.2d 406, 408 (1982) (holding that because there is a compelling public interest in preventing harm to children, child abuse is a strict liability crime and criminal intent is not required); State v. Lucero, 87 N.M. 242, 244, 531 P.2d 1215, 1217 (Ct.App.) (intimating that state has authority to make a negligent act a crime, particularly where there is a strong public interest in protecting children), cert. denied, 87 N.M. 239, 531 P.2d 1212 (1975); see also State v. Crislip, 110 N.M. 412, 796 P.2d 1108 (Ct.App.) (tacitly approving civil negligence standard for child abuse prosecution), cert. denied, 110 N.M. 260, 794 P.2d 734 (1990) and overruled by Santillanes, 115 N.M. at 225 n. 7, 849 P.2d at 368 n. 7; cf. State v. Coe, 92 N.M. 320, 321, 587 P.2d 973, 974 (Ct.App.) (indicating that something more than ordinary negligence required for conviction under child abuse statute but not adopting the criminal negligence standard), cert. denied, 92 N.M. 353, 588 P.2d 554 (1978), and overruled by Santillanes, 115 N.M. at 225 n. 7, 849 P.2d at 368 n. 7.\n16. More recently, our Supreme Court retreated from precedent and held that the element of negligence as used in the child abuse statute requires a showing of criminal negligence and not ordinary civil negligence. Santillanes, 115 N.M. at 222, 849 P.2d at 365. Thus, to satisfy the element of negligence in the child abuse statute, proof is required \u201cthat the defendant knew or should have known of the danger involved and acted with a reckless disregard for the safety or health of the child.\u201d Id.\n17. We believe that the rationale used to adopt a criminal negligence standard for the child abuse statute in Santillanes applies to any crime punishable as a felony. In Santillanes, our Supreme Court repeatedly refers to the distinction that crimes punishable as petty misdemeanors properly require a showing of only ordinary civil negligence, while more serious crimes punishable as felonies should reflect a higher mental state. For example, our Supreme Court stated; \u201cWe can find no clearly articulated basis for the rationale in [City of] Raton v. Rice except for the intuitive notion that a higher standard than tort negligence should be applied when the crime is punishable as a felony.\u201d Id. at 220, 849 P.2d at 363. Thereafter, the Court noted that commentators\u2019 rationale for the application of a criminal negligence standard for felonies, rather than an ordinary civil negligence standard, was reached \u201cby relying on common-sense justifications based upon the traditional application of heightened standards of culpability to crimes punishable with jail sentences.\u201d Id.\n18. The Santillanes Court further distinguished between public welfare, or regulatory crimes, which are strict liability crimes with minimal punishment, and serious nonregulatory crimes which \u201cgenerally proscribe conduct manifesting moral culpability.\u201d Id. at 222, 849 P.2d at 365. In doing so, the Court analogizes to other New Mexico statutes which also contain \u201cnegligence\u201d as an element without defining the term. Id. The Court cites, for example, the negligent use of a deadly weapon statute, \u00a7 30-7-4, for the purpose of illustrating that crimes punishable as petty misdemeanors properly require a showing of only ordinary civil negligence. Santillanes, 115 N.M. at 222, 849 P.2d at 365. Conversely, crimes punishable as a felony with the possibility of a jail sentence, should require something beyond mere civil negligence. \u201cIn other words, when moral condemnation and social opprobrium attach to the conviction of a crime, the crime should typically reflect a mental state warranting such contempt.\u201d Id. The Court stated in sum, \u201cwe find this concept firmly rooted in our jurisprudence: When a crime is punishable as a felony, civil negligence ordinarily is an inappropriate predicate by which to define such criminal conduct.\u201d Id.\n19. Hence, although Santillanes specifically dealt with the child abuse statute, we interpret that case as requiring a showing of criminal negligence for violation of any statute punishable as a felony. Here, Defendant was convicted under the \u201cunlawful act\u201d portion of the involuntary manslaughter statute. Conviction under the \u201cunlawful act\u201d portion of the statute requires proof of a predicate offense which \u201cprobably includes any act punishable as a crime, including misdemeanors and ordinance violations.\u201d SCRA 1986, 14-230, Committee Commentary. We interpret Santillanes as requiring a standard of negligence which coincides with the punishment. In other words, a petty misdemeanor, such as negligent use of a deadly weapon, properly requires a showing of only ordinary civil negligence. However, when used as the basis for involuntary manslaughter, a petty misdemeanor is elevated to a felony and as such requires a showing of criminal negligence. Consequently, we interpret Santillanes as implicitly overruling Grubbs. To the extent that Judge Bivins\u2019 special concurrence in State v. Franklin, 116 N.M. 565, 865 P.2d 1209 (Ct.App.1993), interprets Santillanes as requiring a showing of only civil negligence for involuntary manslaughter by negligent use of a firearm, id. at 573, 865 P.2d at 1217 (construing Santillanes, 115 N.M. at 222, 849 P.2d at 365), we disagree and hold otherwise.\n20. Moreover, the \u201clawful act\u201d portion of the involuntary manslaughter statute, \u00a7 30-2-3(B), includes \u201c[t]he statutory phrase \u201cwithout due caution and circumspection\u2019 [which] involves the concept of \u2018criminal negligence.\u2019 Criminal negligence includes conduct which is reckless, wanton, or willful.\u201d State v. Arias, 115 N.M. 93, 96, 847 P.2d 327, 330 (Ct.App.1993) (citation omitted). Therefore, we hold that a showing of criminal negligence is required for conviction of involuntary manslaughter, whether based on the \u201cunlawful act\u201d or \u201clawful act\u201d portion of the statute, and irrespective of the underlying statutory basis for the conviction. It follows that involuntary manslaughter cannot be based upon violation of the careless driving statute, which requires a showing of only civil negligence. See \u00a7 66-8-114(B). Consequently, the State\u2019s contention that involuntary manslaughter by careless driving is a lesser-ineluded offense of homicide by vehicle under the posture of this case, must fail. The Supreme Court of Massachusetts reached a similar result in construing its state statutes. See Commonwealth v. Jones, 382 Mass. 387, 416 N.E.2d 502, 507 (1981) (declining to hold that vehicular homicide is a lesser-ineluded offense of manslaughter).\n21. In addition, we do not interpret State v. Yazzie, 116 N.M. 83, 860 P.2d 213 (Ct.App.1993), as being inconsistent with our holding. We reject the State\u2019s contention that Yazzie stands for the proposition that careless driving can be the basis for an involuntary manslaughter conviction. In Yazzie, the issue was whether the defendant could be convicted of homicide by vehicle, based upon the misdemeanor of careless driving. We determined that the homicide by vehicle statute set out only four specific circumstances under which an individual can be convicted and careless driving is not one of them. Id. at 85, 860 P.2d at 215. Accordingly, we held that \u201cthere is no such crime as homicide by vehicle by careless driving.\u201d Id. The alternative charge in Yazzie was involuntary manslaughter by careless driving, a felony, which Yazzie did not challenge, and which we therefore upheld. Yazzie did not argue, as Defendant does here, that involuntary manslaughter cannot be based on careless driving and that the homicide by vehicle statute preempted the field. Therefore, we never addressed the issue of whether a defendant can be convicted of involuntary manslaughter by careless driving. For this reason, Yazzie should be narrowly construed to the precise question decided therein.\n22. Finally, because we conclude that involuntary manslaughter cannot be based upon a violation of the careless driving statute, we also hold that the trial court erred in giving such an instruction and reverse Defendant\u2019s conviction. Accordingly, we need not address Defendant\u2019s alternative argument that the trial court erred in refusing his proffered instructions.\nII. Preemption by the Homicide by Vehicle Statute\n23. Because we reverse Defendant\u2019s conviction, we must next determine whether Defendant can be retried for involuntary manslaughter under a criminal negligence standard. To make that determination, we discuss whether the specific homicide by vehicle statute, NMSA 1978, \u00a7 66-8-101 (Repl. Pamp.1994), preempts the conviction of death by motor vehicle cases under the general involuntary manslaughter statute, \u00a7 30-2-3.\n24. Prior to the enactment of the first homicide by vehicle statute in 1978, the sole statute dealing with vehicular killings was the general involuntary manslaughter statute. The present homicide by vehicle statute sets forth only four predicate offenses for conviction as third degree felonies. See \u00a7 66-8-101(0, (F); Yazzie, 116 N.M. at 85, 860 P.2d at 215. In Yazzie, we determined those four predicate offenses to be:\n(1) driving under the influence of intoxicating liquor, (2) driving under the influence of any drug, (3) violating NMSA 1978, Section 66-8-113 (Repl.Pamp.1987) (reckless driving), or (4) violating NMSA 1978, Section 30-22-1(0) (Repl.Pamp.1984) (willfully refusing to come to a stop when so directed by a uniformed officer in a marked police vehicle).\nYazzie, 116 N.M. at 85, 860 P.2d at 215. Each of these predicate offenses requires a showing of something beyond mere civil negligence. See SCRA 1986, 14-241; SCRA 1986, 14r-240, -243 (Cum.Supp.1994).\n25. Because New Mexico courts have consistently construed the involuntary manslaughter statute as requiring a degree of culpability beyond mere civil negligence, the enactment of the homicide by vehicle statute, in essence, codified the restrictions from our case law to the extent that a violation of the Motor Vehicle Code in a negligent manner, but not rising to the level of criminal negligence or recklessness, cannot be a felony in the event of death. Consequently, it should be of no surprise that the homicide by vehicle statute excludes careless driving and the violation of the speeding laws as predicate offenses because neither requires criminal negligence. In fact, the statute specifically states that \u201cviolation of speeding laws set forth in the Motor Vehicle Code ... shall not per se be a basis for violation of Section 66-8-113 NMSA 1978 [reckless driving].\u201d Section 66-8-101(0.\n26. For this reason, we believe that by codifying decades of judicial case law and incorporating it into the homicide by vehicle statute, our legislature declared an intent to require that prosecutions for unintentional homicide by operation of a motor vehicle be brought only under the homicide by vehicle statute. To this end, the official commentary to our Uniform Jury Instructions states that: \u201cAccidental homicide by vehicle is now a specific crime and must be charged rather than manslaughter.\u201d See SCRA 14-230, Committee Commentary. We construe the more specific and recent homicide by vehicle statute to govern prosecutions for death by motor vehicle cases.\n27. The general/specific statute rule further supports the conclusion that prosecutions for unintentional vehicular killings should be brought under the homicide by vehicle statute. That rule as articulated in State v. Blevins, 40 N.M. 367, 60 P.2d 208 (1936), and reaffirmed in State v. Ibn Omar-Muhammad, 102 N.M. 274, 694 P.2d 922 (1985), states:\nIt is a fundamental rule that where the general statute, if standing alone, would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute, whether it was passed before or after such general enactment____\n... [T]he State had no alternative in the matter but to prosecute the appellant under the special statute.\nBlevins, 40 N.M. at 368, 370, 60 P.2d at 209, 210; Ibn Omar-Muhammad, 102 N.M. at 277, 694 P.2d at 925. Defendant argues that since the involuntary manslaughter statute, as applied to a vehicular killing, and the homicide by vehicle statute both require the same act and culpability, he should have been charged with the more specific crime of vehicular homicide. We agree.\n28. Applying the appropriate test, we determine that here the offenses of involuntary manslaughter and homicide by vehicle are the same. The test, once again articulated in Blevins and reiterated in Ibn Omar-Muhammad, for determining whether two offenses are the same or separate, is:\n\u201c[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one[,] is whether each provision requires proof of an additional fact which the other does not.\u201d\nBlevins, 40 N.M. at 369, 60 P.2d at 210 (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932)); Ibn Omar-Muhammad, 102 N.M. at 277, 694 P.2d at 925 (quoting Blevins, 40 N.M. at 369, 60 P.2d at 210) (quoting Block-burger, 284 U.S. at 304, 52 S.Ct. at 182)). We have determined that the mental state for involuntary manslaughter is criminal negligence, irrespective of the underlying statutory basis for the conviction. Criminal negligence includes reckless, wanton, or willful disregard of the consequences. See Arias, 115 N.M. at 96, 847 P.2d at 330. Similarly, \u201c[t]he mental state required for vehicular homicide is that of conscious wrongdoing. Conscious wrongdoing has been defined as the purposeful doing of an act that the law declares to be a crime.\u201d Ibn Omar-Muhammad, 102 N.M. at 278, 694 P.2d at 926 (citation omitted). Given that the mental states for both crimes are the same, we conclude that the involuntary manslaughter statute does \u201cinclude the same matter\u201d as the homicide by vehicle statute, and the two offenses are the same. The general/specific rule is therefore applicable, and Defendant should have been charged under the homicide by vehicle statute. Therefore, we hold that the legislature did not intend to permit similar prosecutions under the older, more general statute of involuntary manslaughter. See State v. Riley, 82 N.M. 235, 478 P.2d 563 (Ct.App.1970).\n29. Because we conclude that the homicide by vehicle statute preempts the involuntary manslaughter statute in unintentional vehicular homicide cases, Defendant here cannot be retried for involuntary manslaughter using the criminal negligence standard. Defendant cannot be retried for homicide by vehicle and great bodily harm by vehicle since the jury has acquitted him of those charges.\nCONCLUSION\n30. In conclusion, we hold that a showing of criminal negligence is required for conviction of homicide by vehicle or involuntary manslaughter. Consequently, there is no such crime as involuntary manslaughter by careless driving. Further, unintentional vehicular killings can no longer be prosecuted under involuntary manslaughter, but must be charged under the more specific statute of homicide by vehicle. Accordingly, we reverse Defendant\u2019s conviction.\n31. IT IS SO ORDERED.\nAPODACA, C.J., and DONNELLY, J., concur.\n. New Mexico\u2019s careless driving statute states:\nA. Any person operating a vehicle on the highway shall give his full time and entire attention to the operation of the vehicle.\nB. Any person who operates a vehicle in a careless, inattentive or imprudent manner, without due regard for the width, grade, curves, corners, traffic, weather and road conditions and all other attendant circumstances is guilty of a misdemeanor.\nNMSA 1978, \u00a7 66-8-114 (Repl.Pamp.1994).\n. New Mexico\u2019s child abuse statute states, in part:\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's life or health;\n(2) tortured, cruelly confined or cruelly punished; or\n(3)exposed to the inclemency of the weather.\nWhoever commits abuse of a child which does not result in the child\u2019s death or great bodily harm is, for a first offense, guilty of a third degree felony and for second and subsequent offenses is guilty of a second degree felony. If the abuse results in great bodily harm or death to the child, he is guilty of a first degree felony.\nNMSA 1978, \u00a7 30-6-1 (C) (Repl.Pamp.1994).", "type": "majority", "author": "FLORES, Judge." } ], "attorneys": [ "Tom Udall, Attorney General, M. Anne Wood, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.", "Sammy J. Quintana, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, for Defendant-Appellant." ], "corrections": "", "head_matter": "905 P.2d 209\nSTATE of New Mexico, Plaintiff-Appellee, v. Kenneth YARBOROUGH, Defendant-Appellant.\nNo. 15794.\nCourt of Appeals of New Mexico.\nSept. 13, 1995.\nCertiorari Granted Nov. 3, 1995.\nTom Udall, Attorney General, M. Anne Wood, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.\nSammy J. Quintana, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, for Defendant-Appellant." }, "file_name": "0669-01", "first_page_order": 707, "last_page_order": 714 }