{ "id": 4244810, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Jonathan DIGGS and Rebecca Miller, Defendants-Appellants", "name_abbreviation": "State v. Diggs", "decision_date": "2009-06-30", "docket_number": "No. 27,812", "first_page": "122", "last_page": "127", "citations": [ { "type": "official", "cite": "147 N.M. 122" }, { "type": "parallel", "cite": "2009-NMCA-099" }, { "type": "parallel", "cite": "217 P.3d 608" } ], "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": "107 N.M. 779", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597228 ], "weight": 2, "pin_cites": [ { "page": "780" }, { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0779-01" ] }, { "cite": "397 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12054849 ], "weight": 4, "year": 1970, "pin_cites": [ { "page": "443" } ], "opinion_index": 0, "case_paths": [ "/us/397/0436-01" ] }, { "cite": "2001-NMCA-058", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 352540 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0687-01" ] }, { "cite": "2002-NMCA-077", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 260728 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0474-01" ] }, { "cite": "2008-NMSC-048", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4001971 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 22" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0663-01" ] }, { "cite": "2003-NMCA-074", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15936 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 19, 22" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0782-01" ] }, { "cite": "2002-NMSC-014", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 260686 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 2" }, { "page": "\u00b6 11" }, { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0187-01" ] }, { "cite": "120 N.M. 619", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559011 ], "weight": 15, "year": 1995, "pin_cites": [ { "page": "626" }, { "page": "1051" }, { "page": "635" }, { "page": "1060" }, { "page": "622-23" }, { "page": "1047-48" }, { "page": "626-28" }, { "page": "1051-53" }, { "page": "633-34" }, { "page": "1058-59" }, { "page": "635" }, { "page": "1060" }, { "page": "626" }, { "page": "1051" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0619-01" ] }, { "cite": "2000-NMSC-013", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1217146 ], "weight": 6, "year": 1999, "pin_cites": [ { "page": "\u00b6 4", "parenthetical": "recognizing a double jeopardy violation based on a civil vehicle forfeiture" }, { "parenthetical": "recognizing a double jeopardy violation based on a civil vehicle forfeiture" }, { "parenthetical": "recognizing a double jeopardy violation based on a civil vehicle forfeiture" }, { "page": "\u00b6\u00b6 55, 59, 94" }, { "page": "\u00b652" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0063-01" ] }, { "cite": "1997-NMCA-051", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 142231 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0372-01" ] } ], "analysis": { "cardinality": 768, "char_count": 16914, "ocr_confidence": 0.684, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14111189494059306 }, "sha256": "4ca312e0da15eb6028d72164e8aed2da60eb1546707e3c9c051dcbe2fb8716fa", "simhash": "1:04493c77f88045f2", "word_count": 2652 }, "last_updated": "2023-07-14T21:21:31.817470+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: JONATHAN B. SUTIN and TIMOTHY L. GARCIA, Judges." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Jonathan DIGGS and Rebecca Miller, Defendants-Appellants." ], "opinions": [ { "text": "OPINION\nWECHSLER, Judge.\n{1} Defendants Jonathan Diggs and Rebecca Miller appeal in advance of their trial from the district court\u2019s denial of their motions to dismiss on double jeopardy grounds. We consider whether the New Mexico Constitution and double jeopardy statute prohibit the State from prosecuting Defendants for child abuse because the Children, Youth and Families Department (CYFD) previously investigated Defendants for child abuse and the Acoma Pueblo tribal court previously held a custody hearing on the same issues. We hold that there was no double jeopardy violation and affirm.\nBACKGROUND\n{2} Defendants\u2019 child was treated at Presbyterian Hospital for bruises and broken bones in different stages of healing, including rib fractures, clavicle fracture, radius fracture, humerus fracture, and femur fracture over the course of several months. As a result of these injuries, CYFD representatives contacted Defendants and informed them that they could avoid placing the child in foster care if they agreed to give the child\u2019s paternal grandparents guardianship. Defendants agreed to temporary guardianship. CYFD found the allegations of child abuse to be unsubstantiated. However, the child was not returned to Defendants because the child\u2019s paternal grandmother, a member of Acoma Pueblo, sought permanent guardianship in the Acoma Pueblo tribal court. The tribal court ultimately returned the child to Defendants.\n{3} Several months later, the State charged Defendants with five counts of child abuse. Defendants filed motions to dismiss on double jeopardy grounds. The district court denied Defendants\u2019 motions to dismiss and then approved the certification of the issue for appellate review. Defendants filed for immediate appeal pursuant to State v. Apodaca, 1997-NMCA-051, \u00b6 17, 123 N.M. 372, 940 P.2d 478.\nPRE-TRIAL APPEAL\n{4} We first address the State\u2019s concern that Defendants have no right to a pretrial appeal. The State argues that Defendants\u2019 pre-trial appeal is inappropriate under Apodaca because, unlike the defendant in Apodaca, Defendants in this case have not yet gone through a criminal trial. See id. \u00b6\u00b6 16-17. Apodaca held that a defendant may directly appeal to this Court a denial of the defendant\u2019s motion to dismiss charges based on double jeopardy grounds. Id. \u00b6 17. In its explanation, Apodaca stated that certain interests override the unwanted result of \u201cpiecemeal appeals\u201d and \u201cjustify invocation of the constitutional right to appeal when final judgment has not yet been entered[, but s]uch interests must be of the greatest importance.\u201d Id. \u00b6 16. Apodaca further explained that \u201ca defendant\u2019s right not to be subjected to a second trial for the same offense could not be remedied once the second trial has taken place.\u201d Id. The State argues that Defendants do not need protecturn against being subjected to a second trial for the same offense because they \u201chave not been subjected to trial on the child abuse offenses.\u201d\n{5} The State\u2019s argument is circular in its rationale because it assumes the conclusion that is the very issue underlying the double jeopardy claim in this appeal' \u2014 that Defendants have not previously been placed in jeopardy. If we were to deny Defendants the ability to file a pre-trial appeal on double jeopardy grounds because Defendants may not succeed in the claim, we would undermine the holding in Apodaca. Therefore, although we ultimately hold Defendants\u2019 double jeopardy rights are not violated, we will not disallow Defendants from making the argument. Further, because even civil actions that are punitive in nature can trigger double jeopardy violations, we will not prohibit Defendants from making their double jeopardy argument under Apodaca, even absent a prior criminal trial. See, e.g., State v. Nu\u00f1ez, 2000-NMSC-013, \u00b6 4, 129 N.M. 63, 2 P.3d 264 (1999) (recognizing a double jeopardy violation based on a civil vehicle forfeiture).\nDOUBLE JEOPARDY\n{6} The New Mexico Constitution\u2019s double jeopardy clause states that \u201c[n]o person shall ... be twice put in jeopardy for the same offense.\u201d N.M. Const, art. II, \u00a7 15. Our double jeopardy statute similarly states that \u201c[n]o person shall be twice put in jeopardy for the same crime.\u201d NMSA 1978, \u00a7 30-1-10 (1963). Our Supreme Court provided the basic framework for a double jeopardy analysis in State ex rel. Schwartz v. Kennedy, 120 N.M. 619, 626, 904 P.2d 1044, 1051 (1995): \u201c(1) whether the [s]tate subjected the defendant to separate proceedings; (2) whether the conduct precipitating the separate proceedings consisted of one offense or two offenses; and (3) whether the penalties in each of the proceedings may be considered \u2018punishment\u2019 for the purposes of the Double Jeopardy Clause.\u201d\n{7} The Court later modified the third Schwartz requirement in City of Albuquerque v. One (1) 1984 White Chevy, 2002-NMSC-014, 132 N.M. 187, 46 P.3d 94. To determine whether a sanction is remedial or punitive, White Chevy requires a reviewing court to evaluate the Legislature\u2019s \u201cpurpose in enacting the legislation, rather than evaluating the effect of the sanction on the defendant. Then the court must determine whether the sanction ... was sufficiently punitive in its effect that, on balance, the punitive effects outweigh the remedial effect.\u201d Id. \u00b6 11 (internal quotation marks and citation omitted); see State v. Kirby, 2003-NMCA-074, \u00b6\u00b6 19, 22, 133 N.M. 782, 70 P.3d 772 (utilizing the Schwartz test and the White Chevy modification in a double jeopardy analysis regarding securities violations).\n{8} Relying on N\u00fa\u00f1ez, Schwartz, and White Chevy, Defendants argue that the State prosecuting Defendants for child abuse would be a violation of their double jeopardy protections because the sanction imposed by CYFD and the tribal court \u2014 removal of Child from Defendants for fourteen months during the CYFD investigation and the tribal court proceedings \u2014 was more punitive than remedial, and, thus, Defendants \u201care now being put in jeopardy a second time for the same acts.\u201d We review double jeopardy issues de novo. State v. Saiz, 2008-NMSC-048, \u00b6 22, 144 N.M. 663, 191 P.3d 521.\n{9} Our Supreme Court in Schwartz held that there was no double jeopardy violation because the civil sanction imposed on the defendant was more remedial than punitive. See Schwartz, 120 N.M. at 635, 904 P.2d at 1060. The defendant in Schwartz was subject to an administrative revocation of his driver\u2019s license, followed by prosecution for driving while intoxicated. 120 N.M. at 622-23, 904 P.2d at 1047-48. The Court held that the administrative proceeding and the criminal prosecution were two separate proceedings and were predicated on the same offense. Id. at 626-28, 904 P.2d at 1051-53. The Court\u2019s analysis therefore rested on whether the sanction was more remedial or punitive. The Court stated that a sanction that serves a remedial purpose, even if it also serves a retributive or deterrent one, is not to be considered punishment for double jeopardy purposes. Id. at 633-34, 904 P.2d at 1058-59. The Court therefore found that the purpose behind the Implied Consent Act, 1978 NMSA, \u00a7\u00a7 66-8-105 to -112 (1978, as amended through 2007), to enforce regulatory compliance and protect the public, was remedial and not punitive, regardless of the deterrent effect on the defendant. Schwartz, 120 N.M. at 635, 904 P.2d at 1060.\n{10} In White Chevy, the Court again held that there was no double jeopardy violation because the civil sanction was more remedial than punitive. See White Chevy, 2002-NMSC-014, \u00b6 2. In that case, the defendants were convicted on criminal driving while intoxicated charges, followed by civil forfeiture actions under a city ordinance. Id. \u00b6 4. The Court held that the purpose of the ordinance at issue was to \u201cprotect the health and safety of the citizens ... by abating motor vehicle nuisances.\u201d Id. \u00b6 6. Because the ordinance was aimed at protecting the public, not punishing a defendant, the Court held that the sanction was remedial and, therefore, there was no double jeopardy violation. Id. \u00b6\u00b6 18-19. The Court reiterated that \u201c[ajlthough a civil penalty may cause a degree of punishment for the defendant, such a subjective effect cannot override the legislation\u2019s primarily remedial purpose.\u201d Id. \u00b6 11.\n{11} Conversely, in Nunez, the Court held that there was a double jeopardy violation after determining that a vehicle forfeiture under the Controlled Substances Act, NMSA 1978, \u00a7\u00a7 30-31-1 to -41 (1972, as amended through 2008), was punitive in nature and, thus, combined with the first two Schwartz requirements, established a double jeopardy violation. Nu\u00f1ez, 2000-NMSC-013, \u00b6\u00b6 55, 59, 94. The Supreme Court explained that, unlike Schwartz, the applicable statutes in Nunez, concerning possession of drugs, \u201cdo not concern a regulated lawful activity, but rather an illegal criminal activity.\u201d Id. \u00b6 52. The Court thus concluded that forfeitures under the Controlled Substances Act were not designed to be and could never be remedial, but, instead, \u201ctheir purposes and intentions are primarily punitive.\u201d Id.\n{12} In the present case, Defendants were subject to CYFD and tribal court proceedings regarding custody of the child, followed by the State prosecuting for criminal child abuse. We need not address the first and second Schwartz requirements because the third is dispositive in this case: whether the alleged penalty, Defendants\u2019 separation from the child during the CYFD and tribal court proceedings, would be deemed remedial or punitive upon evaluation of the Children\u2019s Code\u2019s purpose and effect. See White Chevy, 2002-NMSC-014, \u00b6 11; Schwartz, 120 N.M. at 626, 904 P.2d at 1051.\n{13} We begin by evaluating the Legislature\u2019s purpose as enumerated in the Children\u2019s Code.\nA. first to provide for the care, protection and wholesome mental and physical development of children coming within the provisions of the Children\u2019s Code and then to preserve the unity of the family whenever possible. The child\u2019s health and safety shall be the paramount concern. Permanent separation of the child from the family, however, would especially be considered when the child or another child of the parent has suffered permanent or severe injury or repeated abuse. It is the intent of the [Legislature that, to the maximum extent possible, children in New Mexico shall be reared as members of a family unit;\nB. to provide judicial and other procedures through which the provisions of the Children\u2019s Code are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights are recognized and enforced;\nC. to provide a continuum of services for children and their families, from prevention to treatment, considering whenever possible prevention, diversion and early intervention, particularly in the schools;\nD. to provide children with services that are sensitive to their cultural needs;\nE. to provide for the cooperation and coordination of the civil and criminal systems for investigation, intervention and disposition of cases, to minimize inter-agency conflicts and to enhance the coordinated response of all agencies to achieve the best interests of the child victim; and\nF. to provide continuity for children and families appearing before the children\u2019s court by assuring that, whenever possible, a single judge hears all successive cases or proceedings involving a child or family.\nNMSA 1978, \u00a7 32A-1-3 (1999) (amended 2009); 2009 N.M. Laws, ch. 239. The Legislature sought to provide for the care, protection, and development of children and to ensure that procedures were in place to effectuate that goal. See id. The Legislature couched each aspect of the purpose in terms of benefits to and protection of children. In short, the Legislature clearly established that the purpose of the Children\u2019s Code is to ensure that the best interests of children are met. See In re Christobal V., 2002-NMCA-077, \u00b6 15, 132 N.M. 474, 50 P.3d 569 (recognizing that \u201cthe legislative purpose of the Children\u2019s Code is to provide judicial and other procedures through which the provisions of the Children\u2019s Code are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights are recognized and enforced\u201d (internal quotation marks and citation omitted)); In re Jade G., 2001-NMCA-058, \u00b6 19, 130 N.M. 687, 30 P.3d 376 (stating that the purpose section \u201cis an instruction to interpret the [Children\u2019s] Code to provide procedures for fair hearings and enforcement of rights\u201d). Nowhere in Section 32A-1-3 does it mention punishment against the parents or guardians.\n{14} We next consider whether, under the White Chevy test, \u201cthe sanction established by the legislation was sufficiently punitive in its effect that, on balance, the punitive effects outweigh the remedial effect.\u201d 2002-NMSC-014, \u00b6 11. Defendants claim that their separation from the child for the fourteen months during which the CYFD and tribal court proceedings occurred constituted a sanction in which the punitive effect outweighed any remedial effect. Defendants were indeed separated from the child; however, the separation occurred because Defendant Miller, the primary caretaker at the time, agreed to temporary guardianship based on the child\u2019s injuries documented at the hospital.\n{15} Further, unlike the Controlled Substances Act in Nunez, the Children\u2019s Code contemplates regulated lawful activity. See Nu\u00f1ez, 2000-NMSC-013, \u00b652. The Children\u2019s Code does not address sanctions at all, but instead seeks to protect the best interest of children, more akin to the purpose of protecting the public as stated in Schwartz and White Chevy. See \u00a7 32A-1-3. As discussed, the Legislature intended for the Children\u2019s Code \u201cto provide for the care, protection and wholesome mental and physical development of children coming within the provisions of the Children\u2019s Code and then to preserve the unity of the family whenever possible. The child\u2019s health and safety shall be the paramount concern.\u201d Section 32A-1-3(A). While the Legislature made clear its intention that the unity of the family be preserved when possible, it also made clear that the child\u2019s \u201chealth and safety [is] the paramount concern.\u201d Id.\n{16} In this case, CYFD initiated its investigation because of the child\u2019s injuries and recommendations from hospital personnel. The CYFD proceedings furthered the Legislature\u2019s purpose of providing for the care and protection of the child and ensured that the child\u2019s health and safety were the paramount concern. Nothing in the record indicates that the CYFD investigation or the ensuing temporary guardianship were triggered out of a desire or intent to punish Defendants. Moreover, although the tribal court held a hearing on the paternal grandmother\u2019s motion for permanent guardianship that resulted in longer separation of Defendants from the child, as discussed, Defendant Miller agreed to the temporary guardianship and, ultimately, regained custody of the child. We decline to hold that Defendants were punished by the occurrence of the CYFD and tribal court proceedings.\n{17} Finally, Defendants argue that, pursuant to Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), their prosecutions violate the collateral estoppel aspect of double jeopardy because \u201cboth CYFD and [the tribal court] found the abuse allegations to be unsubstantiated,\u201d CYFD and the State worked together on the CYFD investigation, and, therefore, the prosecution for child abuse cannot be litigated between these same parties. Ashe held that \u201cwhen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.\u201d Id. Defendants have not referenced a final judgment that determined an issue of ultimate fact in the criminal prosecutions. Without any record to support Defendants\u2019 argument, we will not review their claim. State v. Jim, 107 N.M. 779, 780, 765 P.2d 195, 196 (Ct.App.1988) (\u201cIt is [the] defendant\u2019s burden to bring up a record sufficient for review of the issues he raises on appeal.\u201d). As such, Defendants have failed to establish double jeopardy based upon the theory of collateral estoppel.\nCONCLUSION\n{18} We affirm the district court\u2019s denial of Defendants\u2019 motions to dismiss on double jeopardy grounds.\n{19} IT IS SO ORDERED.\nWE CONCUR: JONATHAN B. SUTIN and TIMOTHY L. GARCIA, Judges.", "type": "majority", "author": "WECHSLER, Judge." } ], "attorneys": [ "Gary K. King, Attorney General, Ann M. Harvey, Assistant Attorney General, Santa Fe, NM, for Appellee.", "Hugh W. Dangler, Chief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellants." ], "corrections": "", "head_matter": "2009-NMCA-099\n217 P.3d 608\nSTATE of New Mexico, Plaintiff-Appellee, v. Jonathan DIGGS and Rebecca Miller, Defendants-Appellants.\nNo. 27,812.\nCourt of Appeals of New Mexico.\nJune 30, 2009.\nCertiorari Denied, No. 31,825, July 30, 2009.\nGary K. King, Attorney General, Ann M. Harvey, Assistant Attorney General, Santa Fe, NM, for Appellee.\nHugh W. Dangler, Chief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellants." }, "file_name": "0122-01", "first_page_order": 158, "last_page_order": 163 }