                                                                   I attest to the accuracy and
                                                                    integrity of this document
                                                                      New Mexico Compilation
                                                                    Commission, Santa Fe, NM
                                                                   '00'04- 13:44:17 2011.08.22

Certiorari Granted, August 5, 2011, Docket No. 33,077

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMCA-081

Filing Date: May 19, 2011

Docket No. 28,700

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

ALICIA VICTORIA GONZALES,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Neil C. Candelaria, District Judge

Gary K. King, Attorney General
Anita Carlson, Assistant Attorney General
Santa Fe, NM

for Appellee

Jane B. Yohalem
Santa Fe, NM

for Appellant

                                         OPINION

KENNEDY, Judge.

{1}     This case raises an issue of first impression as to whether a case that might otherwise
be regarded as vehicular manslaughter is punishable under our child abuse statute simply
because the person killed or injured by Defendant’s criminal negligence was a child. Here,
we distinguish between criminal negligence that endangers the public at large and results in
injury or death to a member of the public, who happens to be a child, and criminally
negligent conduct that creates a discernable risk of danger to a particular child or particular

                                              1
children. We hold that a discernable risk of danger to a particular child or particular children
is required to support a conviction for negligent child abuse by endangerment under NMSA
1978, Section 30-6-1(D)(1) (2004) (amended 2009). We further hold that for a defendant
to be criminally liable for child abuse by endangerment, he or she must be aware of a
particular danger to the identifiable child or children when engaging in the conduct that
creates the risk of harm.

{2}     In this case, Defendant contends that the district court erred in failing to grant her
motion for dismissal and her motion for directed verdict on the child abuse by endangerment
charges on the basis that she was unaware that her conduct posed a particular and
foreseeable risk of likely injury to the children injured by her actions. The district court
similarly denied Defendant’s proposed jury instructions requiring child abuse by
endangerment to include an element of awareness. We conclude that the district court erred.
Accordingly, we reverse Defendant’s convictions for negligent child abuse by
endangerment, as she was not proven to be aware of the danger to the particular children
who were the victims of her drunk driving.

{3}     Defendant argues that the State is barred from retrying her for vehicular homicide
and intentional child abuse. We agree and hold that double jeopardy bars retrial of
Defendant for vehicular homicide. We remand for vacation of the child abuse convictions
and discharge of Defendant and the amendment of the judgment and sentence to reflect those
charges on which Defendant’s convictions remain unaffected by this Opinion.

I.     BACKGROUND

{4}     Defendant drove on the interstate while severely drunk, sideswiped one car, and
ploughed into the rear of another car, in which two minors, Manuel and Deandre, were riding
in the back seat. Manuel was pronounced dead at the scene; Deandre received minor
injuries. As a result, the grand jury indicted Defendant for two counts of negligent child
abuse by endangerment, including one count of endangerment resulting in death.1 Defendant
was also charged and convicted of aggravated driving while intoxicated and leaving the
scene of an accident. Defendant does not contest those convictions, and they are not a part
of this appeal.

{5}     Prior to trial, Defendant filed a motion to dismiss the charges of child abuse, arguing
that child abuse cannot be charged when the children injured were “not in the vehicle of the
accused and the accused [was] not aware of their presence on the roadway.” (Emphasis
omitted.) Defendant argued that the State sought to criminalize as child abuse any negligent
behavior undertaken on the road when a child might be present in another car without
consideration of whether Defendant’s conduct specifically put a child at risk. The State did


       1
        Defendant was alternatively indicted for intentional and negligent child abuse in
each count. She was convicted of negligent child abuse.

                                               2
not disagree with this characterization, stating that any conduct undertaken in reckless
disregard of the “welfare and safety of everyone on the road” was sufficient to prove child
abuse. The State stated:

                Criminal negligence does not require a showing that [D]efendant had
        specific knowledge of her victims. It only requires a reckless disregard of the
        danger that she is putting her potential victims in. . . . It was foreseeable that
        her conduct could endanger the lives of not only adults, but also children.
        Children are a part of the general public, a more vulnerable part.

{6}      During the hearing on the motion to dismiss, the district court inquired of the State
why child abuse had not been charged in the alternative with vehicular homicide. Counsel
for the State initially did not know, but later stated that its decision to charge Defendant only
with child abuse and not vehicular homicide was intentionally undertaken as an exercise of
its discretion. The State thus did not pursue vehicular homicide charges at any time.

{7}      Following extensive argument by the parties, the district court held as a matter of law
that “the current statute as it stands under child abuse does not necessitate or need an
awareness factor . . . all that’s required as far as knowledge is that the defendant knows or
should have known that the defendant’s conduct created the substantial or foreseeable risk.”
The district court further stated its opinion that a “person [can] cause [a child to be placed]
or place a child . . . in a dangerous situation, life or health, . . . and not be aware of it.” The
district court denied Defendant’s motion, and the case proceeded to trial, resulting in
Defendant’s convictions and her appeal. The issue continued to be raised by Defendant
throughout the trial, including a motion for directed verdict, with identical results.

II.     STANDARD OF REVIEW

{8}     We review the interpretation of a statute in the context of a motion to dismiss de
novo with the primary goal of ascertaining and giving effect to the intent of the Legislature.
State v. Smith, 2004-NMSC-032, ¶ 8, 136 N.M. 372, 98 P.3d 1022. Criminal statutes are to
be strictly construed. We take care that criminal statutes are not applied beyond their
intended scope and are “defined with appropriate definiteness.” State v. Chavez,
2009-NMSC-035, ¶ 10, 146 N.M. 434, 211 P.3d 891 (internal quotation marks and citation
omitted); see Smith, 2004-NMSC-032, ¶ 8 (applying a de novo standard of review to
determine whether conduct exists within the intended scope of the child endangerment
statute).

{9}     Double jeopardy arguments cannot be waived. A defendant may raise such
arguments at any time. NMSA 1978, § 30-1-10 (1963); see State v. Jimenez, 2007-NMCA-
005, ¶ 11, 141 N.M. 106, 151 P.3d 67; State v. Vaughn, 2005-NMCA-076, ¶ 8, 137 N.M.
674, 114 P.3d 354. When such arguments arise on appeal, we apply a de novo standard of
review. Jimenez, 2007-NMCA-005, ¶ 11.


                                                3
III.   DISCUSSION


A.     The Current Landscape of Child Abuse By Endangerment

{10} Until now, every child abuse by endangerment case in New Mexico pertaining to a
defendant’s operation of a motor vehicle while intoxicated involved the defendant’s
knowledge or placement of the children in the vehicle prior to the conduct that constituted
the endangerment. See, e.g., State v. Chavez, 2009-NMCA-089, ¶ 14, 146 N.M. 729, 214
P.3d 794 (holding that a defendant who drove drunk with a child in the car was guilty of
child endangerment); State v. Watchman, 2005-NMCA-125, ¶¶ 4-5, 138 N.M. 488, 122 P.3d
855 (holding that the defendant was guilty of child abuse when she drove drunk to a bar with
her child and left the child unattended in a dangerous parking lot); State v. Montoya,
2005-NMCA-078, ¶¶ 2, 4, 137 N.M. 713, 114 P.3d 393 (holding that the defendant’s drunk
driving with unrestrained children in his truck was sufficient to prove child abuse); State v.
Santillanes, 2001-NMSC-018, ¶¶ 2, 38, 130 N.M. 464, 27 P.3d 456 (affirming the
defendant’s child abuse conviction when the defendant’s drunk driving resulted in the death
of the four children in his vehicle); State v. Castañeda, 2001-NMCA-052, ¶¶ 19-22, 130
N.M. 679, 30 P.3d 368 (affirming the defendant’s child abuse conviction when the evidence
showed that the defendant drove on the wrong side of a divided highway with children in her
vehicle who were not in safety seats).

{11} Similarly, in State v. Lujan, the defendant was convicted of child abuse when he
attacked another car with his own vehicle with prior knowledge that the victim’s car was
transporting a child. 103 N.M. 667, 669-70, 712 P.2d 13, 15-16 (Ct. App. 1985). His
awareness of the child’s presence within the car prior to his attack was dispositive. Id. In
each of the above cases, the child was within the circumstantial ambit of foreseeable risk and
likely injury created by the defendant. The defendant’s behavior was directed toward the
child, and the defendant was or should have been aware of the risk to the child of whose
presence he or she knew of at the time.

{12} We have further interpreted Section 30-6-1(D) “to address situations where an
accused’s conduct exposes a child to a significant risk of harm,” irrespective of whether the
child was actually injured. Chavez, 2009-NMSC-035, ¶ 15. Nonetheless, there has been no
appellate case in New Mexico for endangering a child whose presence was not previously
known to the defendant at the time the negligent and dangerous behavior was commenced.
Because our appellate courts have not previously determined whether the Legislature
intended the child endangerment statute to encompass conduct similar to that in the present
case, we turn to the language of the statute for guidance.

B.     Criminal Negligence

{13} According to our rules of statutory construction, the statute’s plain language “is the
primary indicator of legislative intent.” High Ridge Hinkle Joint Venture v. City of

                                              4
Albuquerque, 1998-NMSC-050, ¶ 5, 126 N.M. 413, 970 P.2d 599 (internal quotation marks
and citation omitted). In addition, we are to apply the ordinary meaning of the words in the
statute unless the Legislature indicated otherwise. Id. We now apply these rules in
interpreting the meaning of Section 30-6-1(D)(1).

{14} Section 30-6-1(D)(1) criminalizes abuse of a child by endangerment,2 stating,
“[a]buse of a child consists of a person knowingly, intentionally or negligently, and without
justifiable cause, causing or permitting a child to be . . . placed in a situation that may
endanger the child’s life or health[.]” At issue is whether this statute can be construed to
apply in situations where a defendant neither knows of the presence of the child endangered
by his or her driving, nor specifically endangers that child any more than his or her actions
may endanger the general public. Thus, we must determine the Legislature’s intent when
it required a defendant to, at minimum, “negligently” cause or permit the child to be placed
in a situation that endangered the child’s life.

{15} In Santillanes v. State, our Supreme Court held that in convicting a defendant of
criminally negligent child abuse, the state must prove negligence to a criminal, rather than
civil, standard. 115 N.M. 215, 223, 849 P.2d 358, 366 (1993). The Court specifically
rejected the idea rooted in a civil negligence standard that child abuse “encompassed any and
all harm to a child[.]” Id. at 219, 849 P.2d 362. “What distinguishes civil negligence from
criminal negligence is not whether the person is subjectively aware of a risk of harm; rather,
it is the magnitude of the risk itself.” State v. Schoonmaker, 2008-NMSC-010, ¶ 43, 143
N.M. 373, 176 P.3d 1105. In the context of child abuse, criminal negligence is defined as
something beyond mere civil negligence or accidental conduct because it requires that a
person “knew or should have known of the danger involved and acted with a reckless
disregard for the safety or health of the child.” Garcia v. State, 2010-NMSC-023, ¶ 33, 148
N.M. 414, 237 P.3d 716 (internal quotation marks and citation omitted). In Schoonmaker,
our Supreme Court indicated that the “magnitude of the risk” could act as a way to infer a
person’s subjective knowledge of the risk posed to a child and its likely consequences.
2008-NMSC-010, ¶¶ 43-45. Schoonmaker pointed out that a person could act with the
requisite knowledge should the person violently and intentionally shake a child without a
subjective knowledge of the risk of harm or indifference to the risk of that behavior, simply
because the magnitude of the risk to the child is so high. Id. ¶ 48.

{16} We have held that the child abuse by endangerment statute was “intended to address
conduct with potentially serious consequences to the life or health of a child.” State v.
Trujillo, 2002-NMCA-100, ¶ 21, 132 N.M. 649, 53 P.3d 909. This standard was not
intended by the Legislature to render conduct that creates “a mere possibility, however


       2
          The crime of negligent abuse of a child by endangerment under Section 30-6-
1(D)(1) is predicated on the same elements regardless of the consequence to the child, which
only influences the degree of punishment for the offense. Thus, we apply the same analysis
to both counts of negligent child abuse of which Defendant stands convicted.

                                              5
remote, that harm may result to a child” the basis for criminal liability. State v. Trossman,
2009-NMSC-034, ¶ 20, 146 N.M. 462, 212 P.3d 350 (internal quotation marks and citation
omitted). In Trujillo, we stated that for the purposes of child endangerment, the behavior
“that may cause harm,” must place a child “directly in the line of physical danger.” There,
we reaffirmed that “that mere proximity to a dangerous situation was insufficient to support
a conviction for child abuse by endangerment.” 2002-NMCA-100, ¶¶ 17-18 (internal
quotation marks and citations omitted). By casting a net to include the endangerment of the
general public of which children are a part, the State’s argument ignores that the statute only
criminalizes endangering children.

{17} Our Supreme Court in Chavez provided factors to consider in determining whether
there was a substantial and foreseeable risk of harm to the child, so as to authorize a charge
of criminal child abuse by endangerment. Under Chavez, a court should consider (1) the
gravity of the risk created by the defendant, (2) whether the underlying conduct violates a
statute, and (3) the likelihood of harm to the child. 2009-NMSC-035, ¶¶ 23-25. Moreover,
“[i]t is the gravity of the risk that serves to place an individual on notice that his conduct is
perilous, and potentially criminal[.]” Id. ¶ 23. Although our Supreme Court stated the
likelihood that the harm will occur is no longer a determinative factor in the criminal
negligence analysis, it still “remains an important consideration when evaluating the
magnitude of the risk.” Id. ¶ 26. This is particularly pertinent to endangerment cases “where
the risk of harm is too remote, which may indicate that the harm was not foreseeable.” Id.

{18} Concerned with the breadth of conduct potentially ensnared by the phrase “may
endanger,” our Supreme Court in Chavez limited criminal liability under Section 30-6-
1(D)(1) by excluding liability for risks posed by conduct directed at a child that only
theoretically endangered the life or health of a child. Chavez, 2009-NMSC-035, ¶¶ 18-19
(internal quotation marks and citation omitted). “Taken literally, our endangerment statute
could be read broadly to permit prosecution for any conduct, however remote the risk, that
may endanger [a] child’s life or health. However, by classifying child endangerment as a
third-degree felony, our Legislature anticipated that criminal prosecution would be reserved
for the most serious occurrences, and not for minor or theoretical dangers.” Id. ¶ 16
(alteration in original) (internal quotation marks and citation omitted). Instead, our Supreme
Court stated that the statute required a reasonable probability or likelihood that the child’s
life or health would be endangered by the defendant’s conduct. Id. As such, the risk of harm
posed to the child must be “substantial and foreseeable.” Id. ¶ 22 (internal quotation marks
and citation omitted); UJI 14-604 NMRA. Our Supreme Court noted this to mean that the
defendant must have “place[d] a child within the zone of danger and physically close to an
inherently dangerous situation.” Chavez, 2009-NMSC-035, ¶ 26 (alteration in original)
(internal quotation marks omitted) (quoting State v. Jensen, 2006-NMSC-045, ¶ 10, 140
N.M. 416, 143 P.3d 178); see Trossman, 2009-NMSC-034, ¶ 20 (stating that in creating the
crime of child abuse by endangerment, “the Legislature did not intend to criminalize conduct
creating a mere possibility, however remote, that harm may result to a child” (internal
quotation marks and citation omitted)). Our Supreme Court further commented that a remote
risk of harm may indicate that it was not foreseeable. Chavez, 2009-NMSC-035, ¶ 26.

                                               6
{19} For instance, in State v. Clemonts, we reversed the defendant’s conviction, holding
that the defendant’s speeding and minor traffic violations committed during a slow speed
police chase did not pose a substantial risk to the children in the car because the risk of harm
was too remote. 2006-NMCA-031, ¶¶ 16-17, 139 N.M. 147, 130 P.3d 208. We also
reversed the conviction in Trujillo, holding that the defendant’s actions had not placed a
child in the direct line of danger when a child only witnessed the defendant’s attack on her
mother from another part of the house and therefore did not expose the child to a significant
risk of harm. 2002-NMCA-100, ¶ 7.

{20} From this discussion, we reach two conclusions. First, endangerment is something
that exists as an antecedent to any harm that might befall a child. We reach this conclusion
by observing that all of these cases describe endangerment rooted in criminal negligence as
arising from a danger to the child that is known or capable of being known. The defendant
must have knowledge of potential and likely consequences of the endangering behavior that
results in a palpable and foreseeable danger to a child. This is more than merely a
“possibility, however remote, that harm may result to a child.” Trossman, 2009-NMSC-034,
¶ 20. Where the magnitude of a risk of injury is significant enough to impute knowledge of
the palpable and foreseeable danger to a child, the crime of endangerment strongly supports
an awareness on the part of the defendant that the child is foreseeably within the trajectory
of risk the defendant created. Stated another way, placing a child in a dangerous situation
and in the direct line of danger, however briefly, must precede the injury that is likely to
result from that danger. Since it is the endangerment and not the resulting injury that
constitutes the offense, there must be an actual or imputed foreseeability of danger directed
toward the children who might be injured as a result of Defendant’s acts.

{21} Second, and contrary to the State’s contention at trial, the defendant’s conduct must
create a substantial and foreseeable risk of harm to an identified or identifiable child within
the zone of danger. The risk cannot be merely hypothetical, as the child must be physically
close to an inherently dangerous situation of the defendant’s creation. The extension of the
risk to encompass any unidentified child who might hypothetically be present within the
general population that is endangered by a drunk driver’s conduct is too broad an application
of this statute. The child victim cannot become identified simply by being injured by
Defendant: identification of the child and the risk to that child must precede the injury. We
now discuss the particularity with which the conduct must be directed at a child victim to
constitute child endangerment.

C.     Criminal Negligence Must be Directed Toward a Child

{22} In addition to the requirement that the defendant create a substantial and foreseeable
risk of harm—placing a child in the zone of danger—the defendant must also direct his or
her criminal negligence toward a child specifically and not solely at the general public. The
State argues that it can meet its burden to prove child abuse by endangerment, simply by


                                               7
showing that Defendant put children at risk when she put the public as a whole at risk in
driving drunk.

{23} We agree that the Legislature intended to protect children through this statute
because of their vulnerability. Our Supreme Court has been quite clear to point out that the
child abuse statute is “designed to give greater protection to children than adults because
children are more vulnerable than adults and are under the care and responsibility of adults.
When an adult, without justification, endangers a child’s safety, the adult is more culpable
than when the safety of another adult is jeopardized.” Santillanes, 2001-NMSC-018, ¶ 24
(internal quotation marks and citations omitted). Thus, in protecting this vulnerable group,
the Legislature designated child abuse to be a more egregious crime than other identical
negligent behavior resulting in non-intentional homicide. Negligent child abuse resulting
in death of a child is a first-degree felony. Section 30-6-1(F). Yet, the Legislature has
designated involuntary manslaughter to be a fourth-degree felony and homicide by vehicle
while driving drunk a third-degree felony. NMSA 1978, § 30-2-3(B) (1994) (involuntary
manslaughter); NMSA 1978, § 66-8-101(C) (2004) (homicide by vehicle while driving
drunk). The classification of negligent child abuse by endangerment that consequently
results in death as a more serious felony than vehicular homicide or involuntary
manslaughter is therefore a direct reflection of the severity with which the Legislature views
conduct directed at a child.

{24} However, precedent indicates that to be convicted of child endangerment, the
defendant must act in such a way so as to specifically endanger the child. The defendant
must do more than act in a way that endangers the public as a whole. In Chavez, our
Supreme Court required that the risk created by the defendant create conditions that “present
truly consequential and foreseeable threat of harm to children.” 2009-NMSC-035, ¶ 37
(emphasis added). Chavez also held that no crime was committed when “the [s]tate failed
to present any specific evidence to establish a substantial and foreseeable risk that the
children would suffer serious [injury] as a result” of the defendant’s risk-creating conduct.
Id. ¶ 39.

{25} In this case, Defendant may have acted with criminal negligence in driving drunk,
but she did not act with reckless disregard in relation to the safety or health of the children
specifically. The “should have known standard” of criminal negligence is consistent with
the requirement that the defendant has “disregarded [the] risk and [has been] wholly
indifferent to the consequences.” Schoonmaker, 2008-NMSC-010, ¶ 45 (alterations in
original) (internal quotation marks and citation omitted). Our case law establishes that the
consequences of the defendant’s actions must be specifically directed at children in the case
of child abuse. In Clemonts, we stated that endangerment of children cannot be predicated
on a child’s mere proximity to a dangerous situation, but rather that the defendant’s actions
must place the child who is endangered “in the direct line of any danger” so as to create
more than a “mere possibility of harm.” 2006-NMCA-031, ¶ 16; see Trossman, 2009-
NMSC-034, ¶ 20. In other words, the crime is committed when “a defendant places a child
within the zone of danger and physically close to an inherently dangerous situation.” Id. We

                                              8
conclude that the risk and the consequences of risky conduct are those required to be
directed at or sufficiently close to the alleged victim of the abuse. See id. ¶ 21 (concluding
that precedent requires “the [s]tate to prove the child’s presence in a situation where harm
was both probable and sufficiently grave to justify a criminal sanction”).

{26} The fact that the behavior creating a risk results in the injury of a child is not
dispositive to the analysis. As our Supreme Court observed in Schoonmaker, it is almost
impossible to be indifferent to or disregard a risk of which one is not aware.
2008-NMSC-010, ¶ 45. As such, negligent child abuse is no accident. Garcia,
2010-NMSC-023, ¶ 35 (explaining that referring to an act of negligent child abuse as an
“accident” is “a clear misstatement of the law” (internal quotation marks and citation
omitted)). The incidental injury of a child caused by criminally negligent behavior toward
the public at large was not contemplated by the Legislature to be criminalized by this statute.
Yet, the State has staked out the contrary position that the resulting injury determines the
crime and not the antecedent conduct.

{27} In this case, the facts establish the accidental nature of the harm to the children.
Defendant’s reckless behavior endangered all persons on the road, but nothing about the
situation gives rise to evidence that the children were subjected to any particular danger not
shared by all fellow motorists and their passengers. Defendant did not specifically act in a
criminally negligent manner with regard to endangering these particular children. Rather,
she acted that way toward people of all ages on the road that night.

{28} The State acknowledges the nature of endangerment as proceeding the harm when
it points out that Defendant did not know if she would crash into another vehicle, injure
another person, or cause no injury at all. The State stated, “Defendant did not know what
penalty she was facing until the results were seen.” This is an incorrect standard to apply.
Under the State’s logic, the occurrence of child abuse depends completely upon the
incidental age of the injured party and not upon any culpable state of mind of the defendant.
Such logic imposes criminal liability irrespective of how remote the risk of injury is to a
child. To adopt this view does not allow consideration of whether Defendant can assess the
potential occurrence of “a substantial and foreseeable risk” of harm to the children. Chavez,
2009-NMSC-035, ¶ 22 (emphasis omitted) (internal quotation marks and citation omitted);
see UJI 14-604 NMRA. Rather, it concentrates on the ultimate consequence of the behavior,
which is uncertain at the time as to the result the risk may produce.

{29} More specifically, to operate under the State’s view offends the requirement that a
defendant be cognizant that his or her behavior creates a specific danger to a particular child.
This approach creates a strict liability crime based on the victim’s age and the resultant
injury, not the defendant’s culpability in creating antecedent and child-directed danger. Such
an application of the statute is improper. Conviction of a defendant for negligent child abuse
by endangerment requires a demonstration of some risk to a child specifically, as opposed
to a general risk to the public with an accidental harm resulting to a child.


                                               9
{30} “Typically, criminal liability is premised upon a defendant’s culpable conduct, the
actus reus, coupled with a defendant’s culpable mental state, the mens rea.” State v. Padilla,
2008-NMSC-006, ¶ 12, 143 N.M. 310, 176 P.3d 299. Even if Defendant commits an act that
endangers a child, the State cannot prove child abuse by endangerment unless Defendant’s
culpable mental state coincided with the act. Defendant must be criminally negligent in
placing the child in the direct line of, or at least close to, the danger by recklessly
disregarding the substantial and unjustifiable risk to the child’s life and health. As stated
above, this mental state requires that Defendant know, or at least should know, that her
conduct is endangering a child. The fact that a child was incidentally affected by
Defendant’s conduct, even if she knew, or should have known, that she was endangering the
public, is insufficient to prove the mens rea for negligent child abuse.

{31} Where the risk of an injury is apparent or of a great magnitude, the statute requires
that we ask to what extent the circumstances are a particular risk to children. Consequently,
we hold that for a person to be guilty of child abuse by endangerment, it must be shown that
he or she engaged in conduct that directs the risk at a child in a manner that is foreseeable
and is likely to produce endangerment to the particular child. We interpret the plain meaning
of “negligence” in Section 30-6-1(D)(1) to require the State to prove that Defendant knew,
or should have known, of the foreseeable risk created by her behavior that threatens a child’s
life or health. Because a drunk driver creates the possibility of a risk to all persons on the
road, it is insufficient for the State to prove a substantial and foreseeable risk by simply
establishing that the possibility exists that a hypothetical child will be injured thereby, or that
a child was actually injured as a result of the defendant’s acts, even though that child was
not known to be endangered at the time. The risk of harm to the child must be perceived
separately from a risk to the public as a whole, so that the defendant actively disregarded the
likelihood of injury to a child.

{32} The State failed to prove that Defendant’s behavior endangered a particular child that
was foreseeable at the time of the accident. As a result, Defendant’s conviction must be
reversed. In addition, the jury hung and did not return a verdict on the intentional child
abuse charges. Based on the facts of this case and this Court’s reversal of the conviction for
the lesser-included offenses of negligent child abuse, the evidence is also insufficient to
convict Defendant on the more severe charge of intentional child abuse. Intentional child
abuse also requires that the facts demonstrate that Defendant endangered a particular child
that was foreseeable at the time of the accident. Absent such facts, as conceded by the State
in this case, the charge of intentional child abuse by endangerment must also be dismissed
as insufficient as a matter of law. State v. Reed, 1998-NMSC-030, ¶¶ 18-19, 125 N.M. 552,
964 P.2d 113 (holding that the defendant’s cocaine possession charge must be dismissed
because there was insufficient evidence to prove he had the requisite knowledge to commit
the crime).

D.      Double Jeopardy



                                               10
{33} As a final matter, Defendant argues that if this Court reverses her conviction, the
doctrine of double jeopardy prohibits the State from prosecuting her for vehicular homicide.
As double jeopardy applies where Defendant challenges her convictions for sufficiency of
the evidence and she has successfully done so with regard to negligent child abuse here, we
now review Defendant’s double jeopardy contentions. See State v. Lynch, 2003-NMSC-020,
¶ 11, 134 N.M. 139, 74 P.3d 73. We hold that double jeopardy precludes the State from
prosecuting Defendant for vehicular homicide.

{34} The Double Jeopardy Clause represents three broad guarantees. First, when a
defendant has been acquitted of an offense, the clause guarantees freedom from subsequent
prosecution for the same offense. Second, the double jeopardy clause guarantees freedom
from prosecution for the same offense after conviction. Third, it guarantees a defendant will
not be punished twice for the same offense. Id. ¶ 9; see U.S. Const. amend. V (“No person
shall be . . . subject for the same offense to be twice put in jeopardy of life or limb[.]”); N.M.
Const. art. II, § 15 (“No person shall be . . . twice put in jeopardy for the same offense[.]”);
§ 30-1-10 (“No person shall be twice put in jeopardy for the same crime [and] he may not
again be tried for a crime or degree of the crime greater than the one of which he was
originally convicted.”). In Lynch, our Supreme Court held:

        [T]he State with all its resources and power should not be allowed to make
        repeated attempts to convict an individual for an alleged offense, thereby
        subjecting him to embarrassment, expense and ordeal and compelling him to
        live in a continuing state of anxiety and insecurity, as well as enhancing the
        possibility that even though innocent he may be found guilty.

2003-NMSC-020, ¶ 9 (internal quotation marks and citation omitted). Where a defendant
successfully challenges his or her conviction on some basis “other than insufficiency of the
evidence[,]” double jeopardy does not apply. Id. ¶ 11. As stated above, because we hold
that the State’s evidence was insufficient to support a conviction for negligent child abuse,
we consider the double jeopardy issue.

{35} For double jeopardy purposes, a greater offense is considered the same offense as any
lesser offenses included therein. See id. ¶ 1 (holding that double jeopardy barred the state
from prosecuting a defendant for first-degree murder after his acquittal for second-degree
murder for the same killing). “The Double Jeopardy Clause prohibits successive
prosecutions for two offenses arising out of the same conduct if either one is a
lesser-included offense within the other.” State v. Meadors, 121 N.M. 38, 41, 908 P.2d 731,
734 (1995). The strict elements test provides the most straightforward answer on whether
a specific offense constitutes a lesser-included offense of another. Id. at 42, 908 P.2d at 735.
Under this approach, courts must determine whether an offense is “sub-set of the statutory
elements of the greater offense such that it would be impossible ever to commit the greater
offense without also committing the lesser offense.” Id. While New Mexico observes this
standard as a baseline, our state also employs a more flexible “cognate” approach, which
provides that a specific offense constitutes a lesser-included offense if “the evidence adduced

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at trial is sufficient to sustain a conviction on the lesser offense[] and . . . the elements that
distinguish the lesser and greater offenses are sufficiently in dispute such that a jury
rationally could acquit on the greater offense and convict on the lesser.” Id. at 44, 908 P.2d
at 737; see State v. Tanton, 88 N.M. 333, 335, 540 P.2d 813, 815 (1975) (describing the
same evidence test); Swafford v. State, 112 N.M. 3, 10, 810 P.2d 1223, 1230 (1991)
(explaining the same evidence test).

{36} Applying the cognate approach announced in Meadors, we hold that, under the
unique facts of this case, any subsequent prosecution of Defendant for vehicular homicide
would be prohibited as a lesser-included offense under double jeopardy. 121 N.M. at 44,
908 P.2d at 737. Defendant was convicted of negligent child abuse resulting in death in
violation of Section 30-6-1(D)(1), which prohibits negligently causing a child to be placed
in a situation that may endanger that child’s life or health. The offense of vehicular
homicide, of which the State chose not to charge Defendant, prohibits killing or seriously
injuring another person with a vehicle while under the influence of intoxicating liquor.
Section 66-8-101. These two statutes clearly describe separate offenses under the strict
elements test. See Meadors, 121 N.M. at 42, 908 P.2d at 735. Yet, under the cognate
approach, vehicular homicide constitutes a lesser-included offense of negligent child abuse
on these facts. See Santillanes, 2001-NMSC-018, ¶ 37 (holding “that vehicular homicide
is a lesser offense than child abuse resulting in death . . . [b]ecause the Legislature did not
intend to create separately punishable offenses” under those statutes for the same death).

{37} As stated above, during trial, the State presented evidence that Defendant drank to
intoxication and drove her vehicle in such a manner that she negligently caused the death of
one child and injured another. The crux of the parties’ dispute at trial, and indeed this
appeal, was whether such evidence was sufficient to convict Defendant of negligent child
abuse, particularly in light of the fact that the State presented little evidence suggesting
Defendant appreciated any risk that her actions posed any harm to a specific child victim.
Had the jury been instructed on vehicular homicide, it could have reasonably concluded that
Defendant was guilty of that offense instead of negligent child abuse. Moreover,
Defendant’s awareness that her actions imperiled a specific child was sufficiently in dispute,
so as to reasonably lead to acquittal on the negligent child abuse charge, had the jury
received a vehicular homicide instruction.

{38} Accordingly, we hold that any subsequent prosecution for vehicular homicide in this
case would violate double jeopardy. The State chose an “all or nothing” strategy that
excluded vehicular homicide. See State v. Villa, 2004-NMSC-031, ¶ 14, 136 N.M. 367, 98
P.3d 1017 (discussing the consequences of an “all-or-nothing” trial strategy). As our courts
have stated many times, the parties “should be liable for the risks of their respective trial
strategies.” Id. To do otherwise would be to violate the very essence of fairness at the core
of the Double Jeopardy Clause.

IV.     CONCLUSION


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{39} For Defendant to be convicted of child abuse, the State must show that she
specifically directed her criminally negligent conduct toward children, particularly toward
Manuel and Deandre, in such a way that is distinguishable from the danger she posed to the
public at large. Furthermore, double jeopardy bars retrial of Defendant for vehicular
homicide. Thus, we reverse and remand for vacation of the child abuse convictions, for
amendment of the judgment and sentence to reflect those charges on which Defendant’s
convictions remain unaffected by this opinion, and for discharge of Defendant.

{40}    IT IS SO ORDERED.

                                             ____________________________________
                                             RODERICK T. KENNEDY, Judge


WE CONCUR:

____________________________________
JAMES J. WECHSLER, Judge

____________________________________
TIMOTHY L. GARCIA, Judge

Topic Index for State v. Gonzales, Docket No. 28,700

AE                    APPEAL AND ERROR
AE-SR                 Standard of Review

CT                    CONSTITUTIONAL LAW
CT-DJ                 Double Jeopardy

CL                    CRIMINAL LAW
CL-CN                 Child Abuse and Neglect
CL-CM                 Criminal Negligence
CL-DG                 Driving While Intoxicated
CL-VH                 Vehicular Homicide




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