 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                                   NO. 29,229

10 ANDREW RODRIGUEZ,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
13 Michael E. Vigil, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender
18 Navin H. Jayaram, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 VIGIL, Judge.
 1        Defendant appeals his convictions for child abuse resulting in death and

 2 aggravated battery against a household member. We proposed to affirm in a

 3 calendar notice, and we have received a memorandum in opposition from

 4 Defendant. We are not persuaded by Defendant’s arguments that summary

 5 affirmance is not appropriate in this case. Therefore, we affirm.

 6        Defendant continues to claim that the evidence was insufficient to support

 7 his convictions. We review the sufficiency of the evidence in the light most

 8 favorable to the verdict, resolving all conflicts and indulging all inferences in favor

 9 of the verdict. State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998

10 P.2d 176.

11        Defendant is a “severe” alcoholic. On October 16, Defendant became angry

12 at Christine and struck her several times. The next day, after both Christine and

13 Defendant had consumed several beers, Defendant punched Christine several times

14 in the face. He then cleaned her up and put her to bed. As a result of the beating,

15 Christine’s eyes were practically swollen shut and deeply bruised. She had a

16 number of abrasions on her mouth and lips. A CT scan of Christine’s head showed

17 a subdural hematoma or bleeding between her brain and her cranium.

18        Aggravated battery against a household member consists of “inflicting great

19 bodily harm or doing so with a deadly weapon or doing so in any manner whereby

                                              2
 1 great bodily harm or death can be inflicted.” NMSA 1978, Section 30-3-16(C)

 2 (2008). The evidence showed that Defendant struck Christine with so much force

 3 that she developed a hematoma or bleeding in her brain. In other words, Defendant

 4 committed battery on Christine in such a manner that great bodily harm or death

 5 could be inflicted. Although Defendant points to evidence that subdural

 6 hematomas “sometimes occur spontaneously,” the fact finder was free to reject that

 7 contrary evidence. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971

 8 P.2d 829.

 9        Defendant and his wife slept with their twenty-seven-day-old baby lying on

10 the bed between them. Defendant’s mother had warned the couple that sleeping in

11 this way was dangerous for the baby. As noted above, Defendant had consumed a

12 number of beers. Defendant told the detective that he continued to drink, and at

13 about 4:00 p.m., he passed out on the bed with his wife and the baby. Defendant

14 awoke approximately four hours later to find the baby partially underneath him and

15 not breathing. After discovering the baby underneath him, Defendant made

16 attempts to revive the baby, said some prayers, and then left to go to a restaurant.

17        We note that the memorandum in opposition includes a number of versions

18 of the events, with different time frames. For example, Defendant testified that he

19 drank eight beers between the time he awoke and 11:00 a.m., and he went to sleep

                                              3
 1 at 6:00 p.m. Defendant argues that he presented evidence that, based on that time

 2 frame and his testimony, he was not legally intoxicated when he went to lie on the

 3 bed. However, as discussed above, the fact finder was free to disbelieve

 4 Defendant’s version of the events. See id.

 5        The instructions required that the jury find that Defendant caused the baby to

 6 be placed in a situation, the gravity of which seriously endangered the life or health

 7 of the baby; and Defendant acted with reckless disregard because he knew or

 8 should have known that his conduct created a substantial and foreseeable risk, but

 9 he disregarded the risk and was wholly indifferent to the consequences of his

10 conduct and to the welfare and safety of the baby. The evidence presented showed

11 that Defendant was drinking heavily and passed out on the bed where his newborn

12 baby was sleeping. Defendant had received warnings from his mother about

13 sleeping in the same bed as the newborn baby. The evidence was sufficient to

14 support a finding that Defendant knew or should have known that heavy drinking

15 followed by passing out on a bed next to a newborn baby created a foreseeable risk

16 to the baby, and that Defendant disregarded that risk and was indifferent to the

17 consequences of his conduct and to the safety of the baby.




                                             4
1       For the reasons discussed in this opinion and in our calendar notice, we hold

2 that the evidence presented below was sufficient to support Defendant’s

3 convictions. Accordingly, we affirm Defendant’s convictions.

4       IT IS SO ORDERED.

5
6
7                                       MICHAEL E. VIGIL, Judge
8 WE CONCUR:


 9
10 CYNTHIA A. FRY, Chief Judge


11
12 ROBERT E. ROBLES, Judge




                                           5
