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Baby Brianna Lopez Briana Andrew Walters SUPREME COURT OF NEW MEXICO

This document summarizes the New Mexico Supreme Court case State v. Walters from 2007. The case involved the conviction of Andrew Walters for various crimes related to the death of his 5-month-old daughter. On appeal, Walters argued his right to confrontation was violated by the admission of statements made by his co-defendants at their joint trial. The Supreme Court found this to be a violation but ruled it was harmless error for most convictions. It remanded the conspiracy conviction for a separate trial due to the violation not being harmless for that charge.

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75% found this document useful (4 votes)
19K views20 pages

Baby Brianna Lopez Briana Andrew Walters SUPREME COURT OF NEW MEXICO

This document summarizes the New Mexico Supreme Court case State v. Walters from 2007. The case involved the conviction of Andrew Walters for various crimes related to the death of his 5-month-old daughter. On appeal, Walters argued his right to confrontation was violated by the admission of statements made by his co-defendants at their joint trial. The Supreme Court found this to be a violation but ruled it was harmless error for most convictions. It remanded the conspiracy conviction for a separate trial due to the violation not being harmless for that charge.

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Baby Brianna
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You are on page 1/ 20

STATE V. WALTERS, 2007-NMSC-050, 142 N.M. 644, 168 P.

3d 1068

STATE OF NEW MEXICO,


Plaintiff-Petitioner,
v.
ANDREW WALTERS, SR.,
Defendant-Respondent.

Docket No. 29,806

SUPREME COURT OF NEW MEXICO

2007-NMSC-050, 142 N.M. 644, 168 P.3d 1068

August 28, 2007, Filed

ORIGINAL PROCEEDING ON CERTIORARI, Stephen Bridgforth, District Judge

Released for publication September 26, 2007

COUNSEL

Gary K. King, Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, NM, for
Petitioner

Law Offices of Nancy L. Simmons, P.C., Nancy L. Simmons, Albuquerque, NM, for
Respondent

JUDGES
PETRA JIMENEZ MAES, Justice. WE CONCUR: EDWARD L. CHÁVEZ , Chief Justice, PATRICIO M.
SERNA, Justice, RICHARD C. BOSSON, Justice, PAMELA B. MINZNER, Justice (not participating)

AUTHOR: PETRA JIMENEZ


MAES

OPINION

MAES,
Justice.

{1} As a result of the death of Defendant's five-month-old daughter, Baby Briana, a jury
convicted Defendant, Andrew Walters, of intentional child abuse resulting in death or great
bodily harm, contrary to NMSA 1978, § 30-6-1 (2001); conspiracy to commit intentional child
abuse resulting in death or great bodily harm, contrary to NMSA 1978, § 30-28-2 (1979) and
Section 30-6-1; criminal sexual penetration of a child under thirteen in the first degree,
contrary to NMSA 1978, § 30-9-11(A), (C)(1) (2001); intentional child abuse not resulting in
death or great bodily harm, contrary to Section 30-6-1; and negligently permitting child abuse,
contrary to Section 30-6-1. Defendant was tried with four codefendants who faced various
charges related to Baby Briana's death. Previously, this Court examined the appeal of
Defendant's codefendant, Baby Briana's mother, Stephanie Lopez (Mother). See State v.
Lopez, 2007-NMSC-037, ___ N.M. ___, ___ P.3d ___. Like Mother, Defendant appealed his
convictions to the Court of Appeals, asserting that his right to confrontation was violated when
the statements of his codefendants were admitted as evidence at his joint trial. The Court of
Appeals held that the admission of the codefendants' statements resulted in a violation of
Defendant's Sixth Amendment right to confrontation and that this constitutional error was not
harmless. State v. Walters, 2006-NMCA-071, ¶ 1, 139 N.M. 705, 137 P.3d 645. The Court of
Appeals reversed Defendant's conviction and remanded his case with the instruction that
Defendant be tried separately. Id. The State petitioned this Court to review the Court of
Appeals' Opinion. We granted certiorari on the State's petition and hold that the introduction
of the codefendants' statements violated Defendant's Sixth Amendment right to confrontation.
However, we hold that this error was harmless as to Defendant's convictions for intentional
child abuse resulting in death or great bodily harm, criminal sexual penetration of a child
under thirteen years of age, intentional child abuse not resulting in death or great bodily harm,
and negligently permitting child abuse, and we affirm each of these convictions. With regard
to Defendant's conviction for conspiracy to commit intentional child abuse, we hold the
violation of Defendant's right to confrontation was not harmless, and we affirm the Court of
Appeals' decision to reverse Defendant's conspiracy conviction.

BACKGROUN
D

{2} Baby Briana died on July 19, 2002. At the time of Baby Briana's death, Defendant lived
in the mobile home of his mother, Patricia Walters (Grandmother), along with Mother. Lopez,
2007-NMSC-037, ¶ 2. Defendant and Mother shared one bedroom of the mobile home with
Baby Briana, the couple's eighteen-month-old son, Andy Jr., and Mother's twin brother, Steven
Lopez (Uncle). Id. Also living in the home was Defendant's brother, Robert Walters (Second
Uncle), as well as Grandmother's partner. Id. ¶ 3.

{3} The events of July 19, 2002, as well as Baby Briana's extensive injuries, were detailed
by this Court in Lopez.

On the morning of July 19, 2002, Defendant made a 911 call to report that Baby Briana
had stopped breathing. Defendant and [Mother] administered C.P.R. on Baby Briana
until paramedics arrived and transported her to the hospital. When Baby Briana arrived
in the emergency room she had bruises and bite marks on her body and head, and she
appeared lifeless. After unsuccessful attempts to resuscitate her, Baby Briana was
pronounced dead . . . . The autopsy of Baby Briana revealed that she died from cranial
cerebral injuries. She had bruising and scraping injuries throughout her head, as well as
on her upper forehead. She had numerous human bite marks all over her body and head,
fifteen in total. There were extensive injuries to Baby Briana's head and fatal injuries to
her brain. She had bleeding within the membranes around the brain as well as around
the nerves of her eyes. The autopsy revealed that Baby Briana's skull was fractured in
two places, on two different bones, and that the fractures were 5-7 days old. An
examination of the membranes around the brain showed the presence of both old and
new blood, indicating that Baby Briana had received a separate brain injury in the past.
Baby Briana's optical nerves were filled with both fresh and old blood which meant that
she had been violently shaken on at least two occasions. Baby Briana suffered two rib
fractures on the right side of her chest several weeks before her death. She also had
bucket handle fractures on both her right and left thigh bones as well as a fracture
through the top of her left arm. These injuries were the result of her limbs being forced,
twisted, or yanked . . . . Baby Briana's death was characterized as a homicide.

Id. ¶¶ 3-
4.

{4} Additionally, Baby Briana's anus and vagina were injured. Walters, 2006-NMCA-071,
¶ 5. She had a significant abrasion on her buttocks, which went into the buttocks and was
consistent with sexual assault. Id. The attending emergency room nurse observed that her
anus gaped open with no muscle tone. Id. Baby Briana's autopsy revealed that her anal
opening was dilated to a full inch, and the internal examination showed a half-inch to an inch
injury inside the anal opening as well as vaginal injuries inside Baby Briana's labia minora,
including three small injuries to her hymen. Id. DNA testing showed the near certain presence
of Baby Briana's blood on Defendant's underwear, near the fly.

Statements of Defendant and his


Codefendants

{5} On the day of Baby Briana's death, Defendant was transported by police investigators to
the Sheriff's Department where he was interviewed. Defendant's interview lasted several hours
and was taped. In the first portion of his interview, Defendant described the events of the
previous night. Defendant told police that he went home after he got off work and was
drinking beer and playing video games with Mother, Uncle, and Second Uncle until he went to
bed between 12:30 and 1:00 a.m. He said that he woke up sometime after 3:00 a.m. and
noticed Baby Briana on the floor, so he put her in her bouncer chair and went to bed. He
changed her diaper at approximately 7:00 a.m. and went back to sleep. Defendant said that at
10:00 a.m., he and Mother discovered that Baby Briana was not breathing, and they called
911. In this portion of the interview, Defendant stated that Baby Briana had fallen off her bed
during the night. He also admitted he caused two bite marks on Baby Briana's ribs, after
initially claiming that his 18-month-old son made the bite marks.

{6} After a break, the police continued interrogating Defendant and informed him that Baby
Briana was dead. Defendant then admitted to throwing Baby Briana into the air and said that
she hit her head on the ceiling four days before she died. Defendant admitted to bruising Baby
Briana, stating "I didn't mean for it to leave a bruise like that. Like I left her a bruise like that
before, just from messing with her. [Mother] gets mad." Defendant admitted that on the night
of July 18, 2002, he and Uncle were "playing a little rough" with Baby Briana. Defendant said
he threw Baby Briana into the air so that she hit the ceiling, and allowed her to drop to the
floor when he "missed" her. Defendant identified a particular bruise on a photo as being
caused when Baby Briana hit the ceiling and another when she landed on the floor. Defendant
acknowledged that he threw Baby Briana into the air, and on three occasions her head hit the
ceiling, and he allowed her to fall to the floor two or three times. Defendant said Baby Briana
cried when she was dropped onto the floor, and when he was asked what he did to calm her
down, he answered, "I just kept throwing her in the air." Defendant also identified various bite
marks that he acknowledged he made.

{7} Defendant was shown a photo of Baby Briana's anus. Defendant became very upset and
profane, saying to police that they were "not going to find any semen." Defendant told police
he cleaned Baby Briana's butt with a baby wipe, wrapped the baby wipe around his left index
finger, and put the wrapped finger into Baby Briana's anus up to the second knuckle at the
middle of his finger. When he took his finger out, "[t]here was a little bit of blood on there."

{8} Defendant told police that Mother would sometimes get mad at Baby Briana and would
pinch Baby Briana's ears and throw Baby Briana into her bouncer chair from a distance of
about two feet. Defendant also stated that Mother questioned him about the bruises on Baby
Briana, and he informed her that he had been playing rough with her.

{9} Defendant's codefendants were also interviewed at the Sheriff's Department by


investigating officers on the day of Baby Briana's Death. Uncle gave an initial statement to
police after being informed of his Miranda rights. Uncle said that on the night of July 18,
2002, he, Mother, and Defendant were in the bedroom playing video games and drinking beer.
Uncle said specifically that Defendant was drinking. In his first statement to police, Uncle said
that nothing unusual happened during the night and that he slept through the night and was
awakened the next morning by Second Uncle. Later in his interview, police asked Uncle if
anybody had ever thrown Baby Briana up in the air and if she had ever hit her head. Uncle
admitted to throwing her up in the air so that her head hit the ceiling. Police subsequently told
Uncle that Baby Briana was dead and asked him, "Who would do that to her?" and he replied,
"Somebody did."

{10} Later in the interview, police confronted Uncle with admissions made by Defendant
regarding the events of July 18, 2002. Uncle told police that Defendant was throwing Baby
Briana up into the air. He said that he saw Baby Briana hit her head on the ceiling twice.
Uncle admitted that he also threw Baby Briana up in the air. He confirmed that both he and
Defendant were throwing Baby Briana up in the air so that she hit her head on the ceiling and
then allowing her to fall to the floor. Uncle was then shown photographs of Baby Briana's
anus. Initially, Uncle denied touching Baby Briana's anus, saying, "Oh, no. I didn't do that. I
didn't do nothing like that." When questioned further, Uncle's response changed to, "I can't
remember. I don't remember." Finally, Uncle proceeded to talk about the number of beers he
had consumed, and he then said he could not remember starting a sex act with Baby Briana,
but he remembered stopping because he realized what he was doing was wrong. Uncle said
that Defendant was not to blame for sexually assaulting Baby Briana.

{11} Mother was also interviewed by investigating officers on the day of Baby Briana's
death. She said that a couple of days before Baby Briana's death, Defendant had thrown Baby
Briana up in the air. Mother stated that she repeatedly told Defendant not to throw Baby
Briana up in the air because he was going to hurt the child. Mother, however, attributed the
bruises on Baby Briana's forehead to instances when the child rolled off the bed.

{12} During the course of her interview, Mother described the events of July 18, 2002. She
said that she had two to three beers and fell asleep at 10:00 p.m. She said that when she fell
asleep, Defendant remained awake along with Uncle and Second Uncle. Mother said that she
was not awake when Defendant went to sleep. When asked to explain Baby Briana's injuries
Mother initially said that she was awakened at 2:00 a.m., and Defendant told her that Baby
Briana had fallen off the bed earlier and that she did not want to wake up, and he was worried.
Later Mother stated that this conversation with Defendant took place at 7:00 a.m. on the
morning of July 19, 2002, and then she said it occurred at 9:45 a.m. Mother then said that at
7:00 a.m., Defendant took Baby Briana into the living room and then brought her back into the
bedroom wrapped in a blanket and placed her under the fan. Mother said that when she finally
woke up at 9:45 a.m., she saw that Baby Briana was pale, and she was not breathing and that
Defendant was awake and worried. They called Grandmother and then called 911.

{13} When asked by police about the bruises on the back of Baby Briana's head, ears, face,
and body, Mother said they had not been there the night before. Mother said that she had
asked Defendant what had happened, and Defendant said "maybe [Uncle] threw the baby up."
She also stated that she had seen Defendant "throw the baby up." However, Mother stated that
she had not seen Defendant throw Baby Briana up in the air on the night of July 18, 2002.
Mother attributed the bruising on Baby Briana's ear to the way the baby sleeps and turns her
head in her bouncer chair. Mother also said that her son, Andy Jr., was responsible for the bite
marks on Baby Briana.

{14} Baby Briana's Second Uncle also gave a taped statement to police on the day of Baby
Briana's death. Second Uncle was asked about Baby Briana being thrown up in the air, and he
said that his mother, Grandmother, had seen Defendant throw Baby Briana in the air in the
past, and Grandmother had told Defendant "If you don't cut that shit out I'm going to take
Briana away from you." Second Uncle said that this had occurred a couple of days before
Baby Briana's death. At another point in the interview, Second Uncle told police that he had
seen Defendant and Uncle throw Baby Briana in the air.

Defendant's
Trial

{15} As a result of these events, Defendant was charged with intentional child abuse
resulting in death, conspiracy to commit intentional child abuse, criminal sexual penetration of
a child under thirteen years of age, intentional child abuse not resulting in death or great bodily
harm, and negligently permitting child abuse. Mother, Uncle, Grandmother, and Second Uncle
also faced various charges as a result of Baby Briana's death. The State filed a Statement of
Joinder, requesting that Defendant be tried together with Mother, Uncle, Grandmother, and
Second Uncle. In response, Defendant filed an Opposition to Statement for Joinder, asserting
that each of the codefendants "may give statements that would be inadmissible against the
other party and therefore a violation of each defendant's right to cross-examine the witnesses
against them." The trial court held a hearing on the issue of joinder at which time Defendant
joined Mother's motion for severance. The trial court denied Defendant's motion to sever and
proceeded with the joint trial. The statements of Defendant, Mother, Uncle, Grandmother, and
Second Uncle were admitted at Defendant's joint trial over his multiple objections that the
admission of these statements would violate his right to confront the witnesses against him.

{16} Defendant was convicted of each of the charges, and he appealed to the Court of
Appeals. The Court of Appeals determined that the admission of each codefendant's
statements made during police interrogation violated Defendant's confrontation rights and that
this error was not harmless. Walters, 2006-NMCA-071, ¶ 1. The State appealed to this Court.

DISCUSSIO
N

Preservati
on
{17} We begin by addressing the State's claim that, at trial, Defendant failed to adequately
preserve his argument that the statements of his codefendants were inadmissible against him
and the admission of those statements violated the Confrontation Clause. While
acknowledging that Defendant made repeated objections to the admission of his codefendants'
statements, the State asserts that Defendant's objections were vague and did not identify with
specificity the statements that were the subject of his objection.

{18} "In order to preserve an issue for appeal, a defendant must make a timely objection that
specifically apprises the trial court of the nature of the claimed error and invokes an intelligent
ruling thereon." Lopez, 2007-NMSC-037, ¶ 15 (citing Rule 12-216 NMRA; State v. Varela,
1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280). Prior to trial, Defendant's Opposition
to Statement for Joinder initially alerted the trial court to his assertion that the admission of his
codefendants' statements would violate his right to cross-examine the witnesses against him.
At the hearing on joinder, Defendant joined in Mother's motion to sever based on the grounds
"that she would be prejudiced if the court admitted the statements of [her codefendants]." Id.
The trial court denied the motion to sever prior to trial and denied it again after Mother
renewed her motion after opening statements were made. Id. At that time, the court stated:

Counsel, all of you have made a renewed motion on the record. I don't know that you
need to do it over and over again, but you certainly all have a motion for severance. I
ruled on it and I intend that be preserved for all of you. I certainly want you to be able
to appeal any matter that you feel you should appeal.

Id. After the motion for severance was denied, Defendant proceeded to object prior to the
admission of the statements of his codefendants. Id. Defendant articulated that his objections
were based on "hearsay, [the] fifth amendment, and Bruton." Id.

{19} We conclude that by filing a Statement Against Joinder, joining Mother's motion to
sever, and making objections during trial, Defendant properly preserved his argument that the
inclusion of his codefendants' statements resulted in a violation of his Sixth Amendment right
to confront witnesses against him. "By including the terms, `Bruton' and `Confrontation
Clause' in [the] objections, Defendant effectively put the court on notice of the specific nature
of [the] objection and the impropriety of allowing a joint trial where the statements of
codefendants would be offered as evidence." Id. ¶ 16.
Sixth Amendment Right to
Confrontation

{20} We now turn to the substantive issue in this case, whether Defendant's Sixth
Amendment right to confront witnesses against him was violated when the statements of his
non-testifying codefendants were admitted at his trial. Whether the trial court violated
Defendant's Sixth Amendment right to confrontation by admitting the statements of his
codefendants, presents a question of law, which we review de novo. See Lilly v. Virginia, 527
U.S. 116, 136-37 (1999); Lopez, 2007-NMSC-037, ¶ 18; State v. Dedman, 2004-NMSC-037, ¶
23, 136 N.M. 561, 102 P.3d 628.

{21} As discussed in Lopez, "[t]he Confrontation Clause of the Sixth Amendment provides
that `[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him.'" 2007-NMSC-037, ¶ 19 (quoting U.S. Const. amend. VI). "The
Confrontation Clause bars the `admission of testimonial statements of a witness who did not
appear at trial unless he was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.'" Id. (quoting Crawford v. Washington, 541 U.S. 36, 53-54
(2004)). In Crawford, the U.S. Supreme Court did not provide a "comprehensive definition of
testimonial." Crawford, 541 U.S. at 68. The Court, however, explicitly stated that testimonial
statements include "prior testimony at a preliminary hearing, before a grand jury, or at a former
trial; and to police interrogations." Id. (emphasis added).

{22} The State contends that the bar against the admission of testimonial statements
described in Crawford, should not be applied to the statements of Mother, Uncle, and Second
Uncle. This same assertion was made by the State in Lopez, with regard to the statements
Defendant and Uncle gave to police. As we said in that case, "[t]he State is correct in the
assertion that not all police interrogations produce testimony." Lopez, 2007-NMSC-037, ¶ 20.
The U.S. Supreme Court has clarified when police interrogations produce testimony for the
purposes of Crawford. The Court has stated that "police interrogations produce testimony
when `the primary purpose of the interrogation is to establish or prove past events potentially
relevant to later criminal prosecution.'" Id. (quoting ___ U.S. ___, Davis v. Washington, 126
S.Ct. 2266, 2274 (2006)).

{23} In this case, the codefendants' statements elicited by police clearly fall within the
category of "testimony" as described by the U.S. Supreme Court in Davis. Defendant, Mother,
Uncle, and Second Uncle gave statements to police officers who were investigating Baby
Briana's death. The interrogation of the codefendants took place at the police station, hours
after Baby Briana was pronounced dead. During the course of their interrogation, police
attempted to discover the cause of Baby Briana's death and obtain inculpatory statements from
each of the codefendants. The interrogation of the codefendants constituted an effort by the
police to "prove past events potentially relevant to later criminal prosecution." Davis, 126
S.Ct. at 2274. Thus, we hold that the statements of the codefendants, products of a police
investigation, are testimonial for the purposes of Crawford. See id at 2273-74.

{24} At trial, the interrogating police officers testified as to the content of the testimonial
statements made by Mother, Uncle, and Second Uncle. None of the codefendants testified at
Defendant's joint trial, and it is undisputed that Defendant did not have a prior opportunity to
cross-examine Mother, Uncle, or Second Uncle. Therefore, the admission of the testimonial
statements of the codefendants was clearly contrary to the Supreme Court's holding in
Crawford. The admission of Mother's, Uncle's, and Second Uncle's statements constituted a
"per se" violation of Defendant's Sixth Amendment right to confront the witnesses against
him. See Lopez, 2007-NMSC-037, ¶ 21 (citing Johnson, 2004-NMSC-029, ¶ 7 ("[U]nder
Crawford, because Defendant did not have an opportunity to cross-examine [the witness], the
admission of [his] statement constituted a per se violation of Defendant's Sixth Amendment
right of confrontation.")).

Harmless-Error
Analysis

{25} Violations of the Confrontation Clause are subject to harmless error analysis. Id. ¶ 22.
An error is harmless if the State can establish that the constitutional error was "`harmless
beyond a reasonable doubt.'" State v. Alvarez-Lopez, 2004-NMSC-030, ¶ 25, 136 N.M. 309,
98 P.3d 699 (quoting Brecht v. Abrahamson, 507 U.S. 619, 630 (1993)). A constitutional error
regarding erroneously admitted evidence may be deemed harmless when there is no
"`reasonable possibility that the evidence complained of might have contributed to the
[defendant's] conviction.'" Johnson, 2004-NMSC-029, ¶ 9 (quoting Chapman v. California,
386 U.S. 18, 23 (1967)).

{26} As we described in Johnson, when reviewing whether erroneously admitted testimony


may be deemed harmless, this Court examines several factors:
These factors include the importance of the witness' testimony in the prosecution's case,
whether the testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on material points, the
extent of cross-examination otherwise permitted, and, of course, the overall strength of
the prosecution's case.

2004-NMSC-029, ¶ 11 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).We
further "emphasize[d] that constitutional error must not be deemed harmless solely based on
overwhelming evidence of the defendant's guilt; the overall strength of the prosecution's case is
but one factor in our harmless-error analysis." Id.

{27} In light of the principles outlined in Johnson, we must examine the trial record in order
to determine whether the erroneous admission of codefendants' testimony was harmless
beyond a reasonable doubt with respect to each of Defendant's convictions. See Johnson,
2004-NMSC-029, ¶ 31. "`Because our harmless-error analysis instructs that error may be
prejudicial with respect to one conviction, but harmless with respect to another, we review the
effect of [codefendant's] statement with respect to each conviction separately.'" Lopez, 2007-
NMSC-037, ¶ 24 (quoting Johnson, 2004-NMSC-029, ¶ 31).

I. Intentional Child Abuse Resulting in Death or Great Bodily


Harm

{28} The charge of intentional child abuse resulting in death or great bodily harm pertains to
the injuries inflicted on Baby Briana in the last two days of her life. "Abuse of a child consists
of a person knowingly, intentionally or negligently, and without justifiable cause, causing or
permitting a child to be: (1) placed in a situation that may endanger the child's life or health;
(2) tortured, cruelly confined or cruelly punished . . . . " Section 30-6-1(D). In order to obtain
a conviction under the theory of intentional child abuse, the State was required to prove
beyond a reasonable doubt that (1) Defendant caused Baby Briana to be placed in a situtation
which endangered her life or health, or tortured or cruelly confined or punished Baby Briana;
(2) Defendant acted intentionally; and (3) Defendant's actions resulted in the death of or great
bodily harm to Baby Briana. See UJI 14-602 NMRA (defining the elements of intentional
child abuse resulting in great bodily harm).
{29} The statements of the codefendants regarding Defendant's actions during the last two
days of Baby Briana's life must be examined to determine if the admission of those statements
may be characterized as harmless. The relevant statements are as follows. Mother said that
Defendant and Uncle remained awake after she fell asleep on the night of July 18, 2002.
Mother described the actions Defendant took to care for Baby Briana that night. Mother said
that she did not witness Defendant or Uncle doing anything to harm Baby Briana; however,
Mother stated that when she asked Defendant the next morning how Baby Briana was injured,
Defendant said he threw her up in the air once, and maybe Uncle threw her in the air once.

{30} Uncle also described Defendant's behavior the night before Baby Briana's death.
Uncle stated that Defendant was drinking beer and that he and Defendant were playing video
games in the bedroom. Uncle told police that Defendant was throwing Baby Briana into the air
and that she hit her head on the ceiling twice. Uncle confirmed that both he and Defendant
were throwing Baby Briana into the air so that she hit her head on the ceiling and fell to the
floor.

{31} Defendant's own statement to police is consistent with the testimonial statements of his
codefendants. Defendant told police that on the night of July 18, 2002, he threw Baby Briana
in the air such that her head hit the ceiling three times. Defendant also admitted that on the
night before Baby Briana's death, he and Uncle were "playing rough" with her. Defendant
again admitted to throwing her into the air so that she hit the ceiling and then allowed her to
drop to the floor when he "missed" her. Defendant identified particular bruises on a
photograph of Baby Briana as being caused by her hitting the ceiling, and other bruises that
were a result of instances when she landed on the floor. Defendant told police that Baby
Briana cried when she was dropped on the floor, and when he was asked what he did to calm
her down, Defendant answered, "I just kept throwing her in the air." Additionally, Defendant
identified various bite marks on Baby Briana's body that he acknowledged he made.

{32} Applying the first of the harmless-error factors articulated in Johnson, the importance
of the statements in the prosecution's case, to the codefendants' statements, it is clear that in
many cases eyewitness testimony describing a defendant's participation in child abuse would
be tremendously important to the prosecution's case. However, in this case, the testimonial
statements of Mother and Uncle are redundant in light of Defendant's confession. In his own
statement to police, Defendant established each of the elements of intentional child abuse.
Defendant confessed to torturing Baby Briana on the night of July 18, 2002, by repeatedly
throwing her into the air so that her head hit the ceiling and allowing her to fall to the floor.
Defendant also identified injuries that were caused by his repeated act of throwing Baby Briana
to the ceiling and her landing on the floor. Defendant's statement to police describing his own
behavior was more complete and detailed than either of his codefendants' statements. Because
Mother's and Uncle's statements did not provide any additional factual information that was not
already contained within Defendant's own statement, we conclude that the statements were
cumulative, the second factor listed in Johnson. See Johnson, 2004-NMSC-029, ¶ 38 (stating
"[c]umulative evidence is additional evidence of the same kind tending to prove the same point
as other evidence already given"). Additionally, considering the third Johnson factor, the
presence or absence of evidence corroborating or contradicting the testimony of the witnesses
on material points, the physical evidence of Baby Briana's injuries serves to corroborate
Defendant's statements as well as the statements of Mother and Uncle. With regard to the
fourth Johnson factor, the extent of other cross-examination, it is undisputed that Defendant
had no opportunity to cross-examine his codefendants. However, the overall strength of the
prosecution's case cannot be ignored. Defendant made a detailed confession to police which
was fully corroborated by the evidence of injuries. Upon weighing all of the Johnson factors,
we hold that the trial court's admission of Mother's and Uncle's statements was harmless
beyond a reasonable doubt with regard to Defendant's conviction of intentional child abuse
resulting in death or great bodily harm.

II. Criminal Sexual Penetration of a


Child
Under Thirteen in the First Degree

{33} "Criminal sexual penetration is the unlawful and intentional causing of a person to
engage in sexual intercourse, cunnilingus, fellatio or anal intercourse or the causing of
penetration, to any extent and with any object, of the genital or anal openings of another,
whether or not there is any emission." Section 30-9-11(A). All sexual penetration perpetrated
on a child under thirteen years of age is criminal sexual penetration in the first degree. Section
30-9-11(C). The State was required to prove, in relevant part, that (1) Defendant caused the
insertion, to any extent, of his finger into the anus of Baby Briana; (2) Baby Briana was twelve
years of age or younger; and (3) Defendant's act was unlawful. See UJI 14-957 NMRA
(defining the elements of criminal sexual penetrarion of a child under thirteen years of age).

{34} The codefendants' statements are silent as to any conduct of Defendant that would have
amounted to criminal sexual penetration. Aside from Defendant, the only person to remark
about the injuries to Baby Briana's anus was Uncle. In his interview with police, Uncle was
asked if Defendant sexually assaulted Baby Briana. Uncle said no, that Defendant was not
responsible for her injury, and then Uncle proceeded to admit that he sexually penetrated Baby
Briana. Defendant himself admitted to sexually penetrating Baby Briana. In his statement to
police, Defendant stated that he inserted his index finger into Baby Briana's anus up to the
second knuckle.
{35} Applying the Johnson factors to the codefendants' testimony relating to this charge, the
codefendants' statements did not impute Defendant with regard to the charge of criminal sexual
penetration and would not have aided the prosecution. Uncle stated explicitly that Defendant
did not sexually assault Baby Briana, and Uncle claimed responsibility for her injury.
Additionally, there was overwhelming evidence of Defendant's guilt in the form of his own
confession and the DNA evidence linking Baby Briana's blood to Defendant. When this
evidence is balanced against the negligible impact of the codefendants' statements, it is clear
that the erroneous admission of the statements was harmless beyond a reasonable doubt with
respect to this conviction. See Johnson, 2004-NMSC-029, ¶ 53 (holding that the erroneous
admission of a testimonial statement was harmless beyond a reasonable doubt because the
"statement did not serve to strengthen or corroborate the other evidence of guilt" when the
statement was silent with respect to the elements of a particular charge).

III. Intentional Child Abuse Not


Resulting
in Death or Great Bodily Harm

{36} The charge of intentional child abuse not resulting in death or great bodily harm
pertains to the injuries inflicted on Baby Briana prior to those injuries inflicted during the last
days of Baby Briana's life which caused her death. "Abuse of a child consists of a person
knowingly, intentionally or negligently, and without justifiable cause, causing or permitting a
child to be: (1) placed in a situation that may endanger the child's life or health; (2) tortured,
cruelly confined or cruelly punished . . . . " Section 30-6-1(D). Thus, the State was required to
prove, in relevant part, that: (1) Defendant caused Baby Briana to be placed in a situation
which endangered the life or health of Baby Briana or caused Baby Briana to be tortured or
cruelly confined or cruelly punished; (2) Defendant acted intentionally; (3) Baby Briana was
under the age of eighteen. See UJI 14-604 NMRA (defining the elements of intentional child
abuse not resulting in great bodily harm).

{37} Both Mother's and Second Uncle's statements to police described Defendant's behavior
prior to the last days of Baby Briana's life. Mother said that a couple of days before July 19,
2002, Defendant threw Baby Briana up in the air and that "she came down." Later during her
custodial interview, Mother said that Defendant threw Baby Briana up in the air and that her
head hit the ceiling. Mother said that in the month prior to Baby Briana's death, she told
Defendant two or three times to stop throwing the baby. Additionally, Second Uncle
implicated Defendant in his statement to police. Second Uncle said that a couple of days prior
to Baby Briana's death, Grandmother had seen Defendant throw Baby Briana in the air and told
him to stop. However, Defendant implicated himself with regard to the charge of child abuse
not resulting in death or great bodily harm. Defendant told police that four days prior to Baby
Briana's death, he threw her in the air and allowed her head to hit the ceiling. He also admitted
that he was responsible for some of the bite marks on Baby Briana's body.

{38} In many cases, statements such as those made by Mother and Second Uncle would be
extremely important to the prosecution's case. However, in this case, the codefendants'
testimonial statements were merely cumulative of Defendant's confession. Defendant's
confession provided sufficient evidence to establish each element of intentional child abuse not
resulting in great bodily harm. See Johnson, 2004-NMSC-029, ¶ 39 (stating "cumulative
evidence merely augments or tends to establish a point already proved by other evidence").
Additionally, the autopsy of Baby Briana revealed overwhelming evidence of injury that
occurred prior to those injuries causing her death. Baby Briana suffered skull fractures five to
seven days before her death. The membranes around her brain showed the presence of old
blood, indicating that Baby Briana had received a brain injury in the past. Baby Briana's
optical nerves contained old blood, meaning that she had been violently shaken in the past, and
Baby Briana suffered two rib fractures on the right side of her chest several weeks before her
death. While this physical evidence was consistent with the statements of Mother and Second
Uncle, it also confirmed Defendant's confession. In light of this overwhelming physical
evidence supporting Defendant's confession, and the fact that Mother and Second Uncle's
statements were cumulative, we determine that the admission of these statements was
harmless.

IV. Negligently Permitting Child Abuse


Not
Resulting in Death or Great Bodily Harm

{39} The charge of negligently permitting child abuse not resulting in death or great bodily
harm pertains to the injuries inflicted on Baby Briana prior to her death. "Abuse of a child
consists of a person knowingly, intentionally or negligently, and without justifiable cause,
causing or permitting a child to be: (1) placed in a situation that may endanger the child's life
or health; (2) tortured, cruelly confined or cruelly punished. . . . " Section 30-6-1(D). Under
this theory, the State was required to prove, in relevant part, that (1) Defendant caused Baby
Briana to be placed in a situation which endangered the life or health of Baby Briana, or caused
Baby Briana to be tortured or cruelly confined, or cruelly punished; (2) Defendant acted with
reckless disregard; (3) Baby Briana was under the age of eighteen. See UJI 14-604 NMRA
(defining the elements of negligently permitting child abuse not resulting in death or great
bodily harm).

{40} The only statement made by a codefendant relating to this charge was made by Uncle.
In his statement to police, Uncle said that sometimes he and Defendant would throw Baby
Briana into the air. Defendant himself told police that sometimes Mother would get mad, and
she would pinch Baby Briana's ears and throw her into her bouncer chair from a distance of
about two feet.

{41} As with the previous charge, Defendant's statement to police established the elements
of negligently permitting child abuse not resulting in death or great bodily harm. Again, in
light of the overwhelming physical evidence of abuse in this case, we find that Uncle's
statement was harmless beyond a reasonable doubt with regard to this charge.

V. Conspiracy to Commit Intentional Child


Abuse

{42} "Conspiracy consists of knowingly combining with another for the purpose of
commiting a felony within or without this state." Section 30-28-2. An overt act is not
required, and the crime of conspiracy is complete when the felonious agreement is reached.
Johnson, 2004-NMSC-029, ¶ 49 (citing State v. Davis, 92 N.M. 341, 344, 587 P.2d 1352, 1355
(Ct. App. 1978)). "Such an agreement need not be proven by direct evidence; the agreement
may be in the form of a mutually implied understanding and may be inferred from
circumstantial evidence." Id. To obtain a conviction under the theory of conspiracy, the State
was required to prove beyond a reasonable doubt that (1) Defendant and Uncle by words or
acts agreed together to commit intentional child abuse resulting in death or great bodily harm;
and (2) Defendant and Uncle intended to commit child abuse resulting in death or great bodily
harm. See UJI 14-2810 NMRA (defining the elements of conspiracy).

{43} The statements of Defendant's codefendants did not provide direct evidentiary support
for the State's theory that Defendant "knowingly combin[ed] with another for the purpose of
committing [intentional child abuse resulting in great bodily harm]." Section 30-28-2. None
of the codefendants told police about the existence of an agreement between Defendant and
Uncle. However, the statements of both Mother and Uncle constituted circumstantial evidence
from which the jury could have inferred that Defendant and Uncle agreed to commit
intentional child abuse. In reference to the night of July 18, 2002, Mother said that Defendant
told her "maybe [Uncle] threw the baby up," and Defendant told her that he threw Baby Briana
up in the air once. In his statement, Uncle admitted that, on the night of July 18, 2002, he had
thrown Baby Briana in the air so that she hit her head on the ceiling and that Defendant threw
her in the air so she hit her head on the ceiling twice. Uncle later confirmed that Baby Briana
hit her head on the ceiling and fell to the floor. As we discussed above, Defendant conveyed
this same information in his statement to police. Defendant told police that he and Uncle threw
Baby Briana into the air.
{44} We conclude that the statements of Mother and Uncle were important to the
prosecution's conspiracy case. Mother's statement that Defendant told her "maybe [Uncle]
threw the baby up," indicates that Defendant was aware of Uncle's actions and that they may
have been working together. Additionally, Uncle's statement confirmed that Defendant and
Uncle were acting in conjunction with one another. While Defendant also told police that
Uncle was throwing Baby Briana in the air, the statements of Mother and Uncle are relevant
because there is no direct evidence of conspiracy. Neither Defendant nor Uncle acknowledged
that they had entered an agreement to commit child abuse, and conspiracy must be implied
from the fact that both Defendant and Uncle participated in abusing Baby Briana. Thus, the
admission of testimony from Defendant's alleged coconspirator was particularly damaging to
Defendant. The prosecution's theory of conspiracy is not supported by physical evidence, and
there is no other properly admitted corroborating testimony. Thus, in light of the factors listed
in Johnson, we hold the admission of Mother's and Uncle's testimony was not harmless beyond
a reasonable doubt and his conviction as to this charge is reversed.

CONCLUSIO
N

{45} With regard to Defendant's convictions for intentional child abuse resulting in death or
great bodily harm, criminal sexual penetration of a child under thirteen years of age in the first
degree, intentional child abuse not resulting in death or great bodily harm, and negligently
permitting child abuse not resulting in death or great bodily harm, we affirm Defendant's
convictions, and we reverse the Court of Appeals' decision to overturn Defendant's convictions
and remand for a separate trial. However, with regard to Defendant's conviction for conspiracy
to commit intentional child abuse resulting in death or great bodily harm, we affirm the Court
of Appeals' decision to reverse Defendant's conviction. Accordingly, we vacate the
Defendant's conspiracy conviction and remand for a new trial in which Defendant may be
retried on that count.

{46} IT IS SO
ORDERED.

PETRA JIMENEZ MAES,


Justice
WE
CONCUR:

EDWARD L. CHÁVEZ , Chief


Justice

PATRICIO M. SERNA,
Justice

RICHARD C. BOSSON,
Justice

PAMELA B. MINZNER, Justice (not


participating)

Topic Index for State v. Walters, No. 29,806

AE APPEAL AND
ERROR

AE-SR Standard of
Review
AE-HE Harmless
Error

AE-PA Preservation of Issue for


Appeal

CT CONSTITUTIONAL
LAW

CT-CF
Confession

CT-CT
Confrontation

CL CRIMINAL
LAW

CL-CN Child Abuse or


Neglect

CL-MH Motor Vehicle


Violations

CA CRIMINAL
PROCEDURE
CA-CF
Confession

CA-CX Cross-
Examination

CA-RT Right to
Confrontation

CA-SV
Severance

EV
EVIDENCE

EV-AE Admissibility of
Evidence

EV-CU Cumulative
Evidence

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