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LESLIE LINTHICUM
Albuquerque Journal





Is speeding and rolling through a stop sign with kids in your car, then resisting arrest, serious enough to warrant seven years in prison?

The state attorney general is asking the state Supreme Court to side with district court jurors who thought so.

The state Court of Appeals disagrees.

Alonzo Clemons, who is at the center of the case, was driving in Farmington with three children in his car on a January evening four years ago.

He was speeding, and the Farmington police officer who clocked him going between 68 and 72 mph in a 35 mph zone turned on his lights to pull Clemons over.

Clemons didn't stop, though. He kept driving, but at the speed limit, for several blocks.

Farmington police called it a slow-speed chase, banged Clemons on the head with the butt of a gun after they stopped him and he ran from them, charged him with DWI after he refused to take a breath test and also charged him with felony child endangerment for acting recklessly with children in his car.

At his trial, his defense lawyer said Clemons wasn't in a chase at all, just lawfully driving the speed limit without knowing police were in pursuit. He properly went through six intersections, the lawyer said, stopping at a red light and stop signs, although he failed to use his turn signal at one stop sign and rolled through without coming to a complete stop.

With no proof Clemons had been drinking, a jury in San Juan County found him not guilty of drunken driving but convicted him of four misdemeanors: speeding, failing to use a turn signal, failure to obey a stop sign and resisting a police officer.

The jurors also decided that all added up to felony child abuse, and Clemons was sentenced to seven years in prison.

The New Mexico Court of Appeals earlier this month ruled on Clemons' appeal and the court threw out his conviction for child abuse.

In a decision written by Judge Ira Robinson, the court said four little wrongs don't add up to a big one - that the jury shouldn't have relied on a series of misdemeanor traffic violations to support a conviction for felony child abuse. The children, the court said, weren't injured and were not exposed to risk due to Clemons' series of misdemeanor traffic offenses.

Robinson wrote that "the mere possibility of harm is not enough to sustain a conviction of felony child abuse." In this case, he said, "the children were not in the direct line of any danger."

The New Mexico Attorney General's Office has asked the New Mexico Supreme Court to review the lower court's opinion.

In her petition for review, Assistant Attorney General Katherine Zinn said the appellate court should not have second-guessed jurors who sat through the trial and should have stuck to the issues on appeal rather than taking on the question of sufficient evidence on its own.

"Seemingly inconsistent jury verdicts do not supply a basis to conclude that insufficient evidence supports a jury's determination of guilt," Zinn wrote.

She also argues that the appellate court ignored evidence that was not in Clemons' favor, such as his weaving within his traffic lane, swerving at one point and not completely stopping his car before fleeing.

On the issue of the appellate court weighing the sufficiency of the evidence on its own - which Zinn says goes against both precedent and court rules - Zinn argues appellate courts must resist the temptation to go beyond the appeals that are made.

Cordelia Friedman, the assistant appellate defender who represented Clemons on appeal, asked for the court to find that the underlying misdemeanors did not support a felony child abuse conviction, an opening the appellate court took to review the evidence and come to its conclusion that it was insufficient.

While neither lawyer would speak about an ongoing case, New Mexico Attorney General's Office spokeswoman Sam Thompson said the request for Supreme Court review addresses the importance of allowing a jury to do its job "whether or not you agree with their verdict."

And Sheila Lewis, past president of the New Mexico Criminal Defense Lawyers and an appellate defender, said the appellate court got it right in pulling back an unreasonable jury verdict. "Do we want someone to go to jail on felony child abuse because he exceeds the speed limit, fails to use a turn signal or slows but doesn't come to a complete stop at a stop sign?" Lewis said. "We'd all be in jail."

Copyright 2005 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.
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