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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                            NO. 33,241

 5 MICHAEL TERRAZAS,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 John A. Dean, Jr., District Judge

 9 Hector H. Balderas, Attorney General
10 M. Anne Kelly, Assistant Attorney General
11 Albuquerque, NM

12 for Appellee

13 Jorge A. Alvarado, Chief Public Defender
14 Tania Shahani, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 HANISEE, Judge.
 1   {1}   Defendant appeals from his felony conviction for child abuse by endangerment

 2 (negligently caused, no death or great bodily harm) of his two-month-old infant son

 3 (T.T.), for which he received an enhanced sentence as a habitual offender. We affirm.

 4 BACKGROUND

 5   {2}   Defendant’s conviction arose from an altercation between Defendant and

 6 Mother while she was holding T.T. Mother’s minor daughter (A.C.) was also present

 7 and witnessed the conflict. As a result of the altercation, Defendant was charged with:

 8 Count 1, negligent child abuse of A.C., contrary to NMSA 1978, § 30-6-1(D) (2009)1,

 9 Count 2, negligent child abuse of T.T., also contrary to Section 30-6-1(D); and Count

10 3, battery against Mother, a household member, contrary to NMSA 1978, § 30-3-15

11 (2008).

12   {3}   At trial, Mother testified that while she and Defendant were engaged in an

13 argument outside her residence, she was cradling T.T., who was two months old and

14 weighed six pounds, in her arms. Mother explained that Defendant became angry and

15 started “coming towards [her].” She detailed how she began “backing up with

16 [T.T] . . . when [Defendant] just headbutted [her] with [T.T.] in [her] arms.” Mother


           1
17          During the pendency of this case, our Supreme Court held that “criminally
18   negligent child abuse” shall be re-labeled as “reckless child abuse.” State v. Consaul,
19   2014-NMSC-030, ¶ 37, 332 P.3d 850 (internal quotation marks and citation omitted).
20   Consistent with Consaul, we refer to Defendant’s conviction of “negligently caused”
21   child abuse as “reckless child abuse.” Id.

                                               2
 1 clarified that Defendant “hit [her] with his head on [her] head.” Mother recounted: “I

 2 just held on to [T.T.] really tight in hopes that I wouldn’t drop him. I lost my balance,

 3 and I was able to recover.” Although Mother did not fall, she explained that after

 4 being struck, she was “jolted back and lost [her] balance.” Mother explained that she

 5 then ran from Defendant, who pursued her into her residence. A.C., who was watching

 6 the altercation from a kitchen window, testified that while she did not actually

 7 see “anything like a headbutt,” she saw Defendant “push[] his chest out and . . . [stick]

 8 his forehead against [Mother’s] . . . [making] her walk backwards” while she was

 9 holding T.T.

10   {4}   At the conclusion of trial, the jury acquitted Defendant of Counts 1 and 3, but

11 convicted him of Count 2. As a habitual offender, Defendant was sentenced to a four-

12 year term of imprisonment; however, the district court suspended all but eighteen

13 months, followed by a two-and-a-half-year period of probation. Defendant appeals,

14 arguing that: (1) he did not receive a fair trial as the jury instructions for Count 2

15 contained not only the elements of reckless child abuse but also intentional child

16 abuse, a crime for which he was never charged; (2) there was insufficient evidence of

17 reckless child abuse as to T.T.; (3) Defendant’s conviction is inconsistent with his

18 having been acquitted of Counts 1 and 3.

19 I.      Count 2 Jury Instructions


                                               3
 1   {5}   The jury was instructed, in relevant part, that in order to find Defendant guilty

 2 of Count 2:

 3         [T]he [S]tate must prove . . . beyond a reasonable doubt each of the
 4         following elements of the crime:

 5         1.   [Defendant] caused [T.T.] to be placed in a situation which
 6         endangered the life or health of [T.T.];

 7         2.    [Defendant] acted intentionally or with reckless disregard and
 8         without justification.

 9                To find that [Defendant] acted with reckless disregard, you must
10         find that [Defendant] knew or should have known [Defendant’s] conduct
11         created a substantial and foreseeable risk, [Defendant] disregarded that
12         risk and [Defendant] was wholly indifferent to the consequences of the
13         conduct and to the welfare and safety of [T.T.]2

14   {6}   On appeal, the State concedes that the essential-elements jury instruction was

15 erroneous because it incorporated both reckless and intentional child abuse despite

16 Defendant having been accused only of the former offense. See State v. Davis, 2009-

17 NMCA-067, ¶¶ 8-9, 146 N.M. 550, 212 P.3d 438 (holding that the district court erred

18 in instructing the jury on intentional child abuse and what is now reckless child abuse

19 when the defendant was only charged with intentional child abuse and that a defendant



           2
20           At the time of Defendant’s conviction, UJI 14-604 NMRA (2012) was the
21   governing jury instruction for intentionally or negligently caused child abuse not
22   resulting in death or great bodily harm. The Supreme Court has since withdrawn this
23   instruction and adopted UJI 14-612 NMRA in its stead. This change affects our
24   analysis only as explained herein.

                                               4
 1 is entitled to be on notice of the crimes with which he is charged and “to be tried

 2 solely on those charges”), abrogated on other grounds by State v. Montoya, 2015-

 3 NMSC-010, 345 P.3d 1056. However, the State argues that we should nevertheless

 4 affirm.

 5   {7}   The parties agree that the issue was not preserved in district court. Given

 6 Defendant’s failure to timely object, he asks that we conclude that the instructional

 7 error was fundamental, pursuant to Rule 12-216(B)(2) NMRA (permitting appellate

 8 review, in the court’s discretion, of unpreserved issues in cases involving fundamental

 9 error). When the issue presented on appeal has not been preserved in district court, we

10 review only for fundamental error. Id. In the context of an erroneous “essential-

11 elements jury instruction,” we must determine whether the flawed instruction

12 “create[d] confusion in the jury that would undermine the reliability of the verdict and

13 the integrity of our judicial system.” State v. Barber, 2004-NMSC-019, ¶ 32, 135

14 N.M. 621, 92 P.3d 633. Reversible fundamental error also occurs “when a jury

15 instruction fails to include an essential element of an offense or a defense to a charge,

16 leaving the question of guilt so doubtful that it would shock the conscience to permit

17 the verdict to stand.” State v. Sosa, 1997-NMSC-032, ¶ 24, 123 N.M. 564, 943 P.2d

18 1017; see Barber, 2004-NMSC-019, ¶ 17 (stating that fundamental error occurs in

19 cases with “defendants who are indisputably innocent” or in which “a mistake in the


                                               5
 1 process makes a conviction fundamentally unfair notwithstanding the apparent guilt

 2 of the accused”). Once error is established, our obligation is “to review the entire

 3 record, placing the jury instructions in the context of the individual facts and

 4 circumstances of the case, to determine whether the [d]efendant’s conviction was the

 5 result of a plain miscarriage of justice.” Barber, 2004-NMSC-019, ¶ 19 quoting State

 6 v. Benally, 2001-NMSC-033, ¶ 24 131 N.M. 258, 34 P.3d 1134 (Baca, J., dissenting)).

 7   {8}   Defendant contends that fundamental error occurred because: (1) the instruction

 8 confused the jury; (2) the instruction required Defendant to defend against a charge

 9 of intentional child abuse for which he was never notified, rendering his conviction

10 for reckless child abuse a miscarriage of justice; and (3) the instruction rendered the

11 jury’s verdict non-unanimous. The State argues that the error was not fundamental

12 because Defendant is neither indisputably innocent nor was the conviction

13 fundamentally unfair. The State points out that Defendant offered no evidence

14 contradicting the testimony of either Mother or A.C., and “[t]here is no question that

15 Defendant [was in] . . . a heated argument with [Mother], and that she was holding

16 T.T.[,]” resulting in the jury’s conclusion that T.T. had been endangered by

17 Defendant. Further, the State posits that the conviction was not fundamentally unfair

18 as the penalty is the same for either intentional or reckless child abuse and there was

19 only one theory of liability that arose from Defendant’s aggressive physical contact


                                              6
 1 with Mother while she was holding T.T.

 2   {9}    Regarding his first and second contentions, Defendant relies on Davis and State

 3 v. Cabezuela, 2011-NMSC-041, ¶ 21, 150 N.M. 654, 265 P.3d 705, to argue that by

 4 erroneously instructing the jury as to both crimes, the district court misled and

 5 confused the jury and simultaneously deprived him of notice of the need to defend

 6 against the crime of intentional child abuse. He also cites our Supreme Court’s recent

 7 opinion Consaul, 2014-NMSC-030, to assert that the element instruction failed to

 8 “require[] the State to prove the requisite mens rea for the specific type of child abuse

 9 charged.”

10   {10}   We begin with Consaul, which clarified the inapplicability of a merely

11 negligent act to conduct proscribed by Section 30-6-1. Consaul, 2014-NMSC-030, ¶

12 37. In defining the heightened recklessness mens rea as that required to support

13 conviction for non-intentional child abuse, Consaul stated that a defendant must

14 “consciously disregard a substantial and unjustifiable risk of such a nature and degree

15 that its disregard involves a gross deviation from the standard of conduct that a law-

16 abiding person would observe.” Id. Defendant maintains that, while Consaul did not

17 specifically address the level of culpability the State must prove for an intentional

18 child abuse conviction, “a defendant should have to, at the very least, intend a

19 substantial and unjustifiable risk of harm to the child.” He correctly asserts that


                                               7
 1 because the State failed to prove “conscious wrongdoing[,]” the jury should not have

 2 been permitted to consider intentional child abuse.

 3   {11}   Although correct that our Supreme Court clarified the element of intent

 4 necessary to convict a defendant of non-intentional child abuse in Consaul, 2014-

 5 NMSC-030, ¶¶ 37-38, Defendant fails to address notable legal and factual differences

 6 between Consaul and this case. In Consaul, the state charged the defendant with both

 7 intentional and reckless child abuse and proceeded on two separate theories of how

 8 an infant’s death occurred, one intentional and one reckless. 2014-NMSC-030, ¶¶ 1,

 9 13-14. The jury then issued a general verdict, not specifying whether it found the

10 defendant guilty of intentional or reckless child abuse, yet the district court “sentenced

11 [the defendant] to the basic term of [eighteen] years imprisonment” based on its

12 classification of the crime as a “serious violent offense.” Id. ¶ 17. Here, the State

13 proceeded on the single theory of reckless child abuse, the jury was correctly

14 instructed as to the element of recklessness and not negligence, and Defendant was

15 subsequently sentenced for reckless child abuse. Unlike the defendant in Consaul,

16 Defendant could not have been convicted of a lesser offense than that for which he

17 was charged or sentenced nor could he have been convicted based upon a mens rea

18 less than that statutorily required. Consaul does not support Defendant’s contention

19 that the instructional error was fundamental and warrants reversal.


                                               8
 1   {12}   Similarly, the case before us is distinguishable from Davis. Factually, the Davis

 2 “jury was presented with conflicting testimony as to how [the c]hild’s injuries

 3 occurred”: whether they were intentionally caused by the defendant or recklessly

 4 caused when the child was left alone with a dog. 2009-NMCA-067, ¶ 11. Here, there

 5 was but a single theory on which the child abuse charge was based: Defendant’s

 6 recklessly aggressive movement toward and contacting Mother’s head, witnessed by

 7 A.C., and Mother’s testimony to having been struck and forced backward while

 8 holding T.T. Also noteworthy is the fact that while the jury verdict form did not

 9 specify whether Defendant was guilty of intentional or reckless child abuse,

10 Defendant was ultimately sentenced only upon reckless child abuse, the crime

11 carrying lesser penalties and the lesser mens rea requirement. This is unlike Davis,

12 where the jury was allowed to convict the defendant for a crime containing a

13 heightened mens rea pursuant to an instruction requiring only a lesser degree of intent.

14 Id. ¶¶ 1, 5. Here, Defendant was charged with and sentenced based upon only the

15 lesser mens rea crime; his conviction therefore fails to qualify as the miscarriage of

16 justice that was the possibility in Davis. See id. ¶ 16. While Defendant correctly

17 identifies instructional error regarding the element of intent, the circumstances of

18 Davis do not contribute to a conclusion that the instructional error was fundamental

19 to a degree that necessitates reversal under the facts of this case. See Cabezuela, 2011-


                                                9
 1 NMSC-041, ¶ 33 (concluding that “the Legislature did not intend to lump within

 2 intentional child abuse other forms of abuse committed with a lesser degree of intent”

 3 (alteration, internal quotation marks, and citation omitted)).

 4   {13}   Lastly, Cabezuela precludes conviction for child abuse by endangerment based

 5 upon mere negligence alone. See id. ¶¶ 36-37. But Defendant has no argument that he

 6 was convicted on grounds of negligence because the jury was instructed only as to

 7 recklessness—the correct mens rea for the non-intentional iteration of the crime with

 8 which Defendant was charged.

 9   {14}   We conclude, in the context of the individual facts and circumstances of this

10 case, that the erroneous essential-elements instruction did not generate jury confusion

11 such that would render Defendant’s conviction a miscarriage of justice. See Barber,

12 2004-NMSC-019, ¶ 32. Nor do the circumstances demonstrate Defendant’s

13 indisputable innocence. See State v. Rodriguez, 1970-NMSC-073, ¶ 10, 81 N.M. 503,

14 469 P.2d 148 (“The doctrine of fundamental error is to be resorted to in criminal cases

15 only for the protection of those whose innocence appears indisputably, or open to such

16 question that it would shock the conscience to permit the conviction to stand.”).

17 Rather,      the   jury   was    properly       provided   the   lesser   mens     rea

18 instruction—recklessness—necessary to sustain a conviction for non-intentional child

19 abuse.


                                              10
 1   {15}   Defendant maintains in this third contention that, as instructed, it is impossible

 2 to know if the jury reached a unanimous verdict as the instruction given did not

 3 require the jurors to agree on the required mens rea. Citing State v. Salazar, 1997-

 4 NMSC-044, ¶ 39, 123 N.M. 778, 945 P.2d 996 (“[Caselaw] clearly demonstrates that

 5 a unanimous verdict on the crime charged is required for conviction in a criminal

 6 case.”), Defendant generally argues that the erroneous provision of two mens rea

 7 elements “effectively permitted jurors to convict [Defendant] without unamity.” In

 8 this regard also, Defendant again compares his case to Davis where the defendant was

 9 charged only with intentional child abuse, but the jury was wrongly instructed on both

10 intentional and what is now reckless child abuse, allowing the possibility that the

11 defendant could have been convicted of intentional abuse with only a reckless mens

12 rea. 2009-NMCA-067, ¶¶ 1, 5-6. But Davis does not address juror unanimity, and

13 Defendant offers no specific authority for the proposition that when an erroneous

14 instruction contains a wrongly heightened mens rea, along with the correct mens rea,

15 that the ensuing conviction cannot stand due to the requirement of unanimity. Where

16 a party cites no authority to support an argument, we may assume no such authority

17 exists. See State v. Godoy, 2012-NMCA-084, ¶ 5, 284 P.3d 410 (noting Defendant’s

18 failure to provide authority in rejecting the proposition that juror unanimity required

19 reliance on the same evidence when evaluating greater and lesser offenses). In any


                                                11
 1 event, Salazar states that “a jury’s general verdict will not be disturbed in such a case

 2 where substantial evidence exists in the record supporting at least one of the theories

 3 of the crime presented to the jury.” 1997-NMSC-044, ¶ 32. See also State v.

 4 Cavanaugh, 1993-NMCA-152, ¶ 14, 116 N.M. 826, 867 P.2d 1208 (stating that “[t]he

 5 fact that a jury instruction is given in the alternative does not mean that a guilty

 6 verdict reached by that jury is non-unanimous” and that “[a] guilty verdict on such an

 7 instruction will be upheld” where a jury is instructed of the requirement regarding and

 8 indicates the unanimity of its verdict).

 9   {16}   Again, however, what authority is provided by Defendant disallows a

10 conclusion of fundamental error. Defendant was charged with reckless child abuse,

11 of which he was convicted unanimously upon evidence offered by the State’s lone

12 theory that he was guilty of reckless child abuse. The instructional error did not

13 generate the possibility of wrongful conviction under any of the cases relied upon by

14 Defendant, as it did not provide the jury with a lesser than required basis for

15 conviction. Rather, had the jury found that Defendant acted intentionally and not

16 recklessly, the State’s burden would have been improperly increased for the crime

17 with which Defendant was charged. While we remain cognizant that intentional and

18 reckless child abuse are separate and distinct crimes, we conclude that the unanimity

19 required for Defendant’s conviction to be valid was not imperilled by the faulty


                                              12
 1 instruction such that the error was fundamental or that his conviction could be deemed

 2 fundamentally unfair or a miscarriage of justice. See Barber, 2004-NMSC-019, ¶ 19.

 3 II.      Sufficiency of the Evidence

 4   {17}   Defendant contends that the State failed to present sufficient evidence at trial

 5 to meet the burden of proving each element of child abuse by endangerment beyond

 6 a reasonable doubt. He maintains that “[w]ithout evidence that [Mother] lost control

 7 of [T.T] at any point, the State never identified any direct harm [T.T.] may have

 8 suffered, and relied instead on the assumption that if [Mother] was battered then [T.T.]

 9 would undoubtedly be harmed as well.” Defendant asserts that a danger that is merely

10 potential is one too remote to sustain a conviction and the “alleged head[]butt was not

11 an act that created a substantial and foreseeable risk of harm as required by New

12 Mexico law.” (Internal quotation marks omitted.)

13   {18}   In reviewing a challenge of sufficiency of the evidence, we apply a substantial

14 evidence standard of review. State v. Chavez, 2009-NMSC-035, ¶ 11, 146 N.M. 434,

15 211 P.3d 891. “Substantial evidence is such relevant evidence as a reasonable mind

16 might accept as adequate to support a conclusion.” State v. Trujillo, 2002-NMCA-100,

17 ¶ 8, 132 N.M. 649, 53 P.3d 909 (internal quotation marks and citation omitted). “The

18 relevant question is whether, after viewing the evidence in the light most favorable to

19 the prosecution, any rational trier of fact could have found the essential elements of


                                               13
 1 the crime beyond a reasonable doubt.” Chavez, 2009-NMSC-035, ¶ 11. (alteration,

 2 internal quotation marks, and citation omitted). We indulge all reasonable inferences

 3 and resolve all conflicts in the evidence to favor the guilty verdict. Id. As long as there

 4 is sufficient evidence supporting the verdict, we do not reweigh the evidence or

 5 substitute our judgment for that of the factfinder. Id.

 6   {19}   “Child abuse by endangerment, as opposed to physical abuse of a child, is a

 7 special classification designed to address situations where an accused’s conduct

 8 exposes a child to a significant risk of harm, even though the child does not suffer a

 9 physical injury.” Id. ¶ 15 (emphasis, internal quotation marks, and citation omitted).

10 At the time of the incident, the elements of child abuse by endangerment consisted of:

11 (1) causing a child to be placed in a situation that endangered the life or health of the

12 child, and (2) acting intentionally or with reckless disregard and without justification.

13 UJI 14-604 (2012). In order to find that a defendant acted with reckless disregard, a

14 jury must find that the defendant “knew or should have known [his or her] conduct

15 created a substantial and foreseeable risk, the defendant disregarded that risk and the

16 defendant was wholly indifferent to the consequences of the conduct and to the

17 welfare and safety of” the child. UJI 14-604(2) (2012). A substantial and foreseeable

18 risk is a situation in which the defendant “placed a child within the zone of danger and

19 physically close to an inherently dangerous situation.” Chavez, 2009-NMSC-035, ¶


                                               14
 1 26 (alteration, internal quotation marks, and citation omitted); State v. Gonzales,

 2 2011-NMCA-081, ¶ 18, 150 N.M. 494, 263 P.3d 271.

 3   {20}   In Consaul, our Supreme Court expressed doubt “about the continued vitality

 4 of the ‘knew or should have known’ ” portion of the definition of negligently in

 5 Section 30-6-1(A)(3), as “the Legislature appeared to capture two standards of mens

 6 rea in one sentence when it defined ‘negligently’ as meaning that ‘a person knew or

 7 should have known the danger involved and acted with a reckless disregard of the

 8 safety or health of the child.’ ” Consaul, 2014-NMSC-030, ¶¶ 39-40 (emphasis

 9 omitted). As a result, the reckless child abuse jury instruction has since been modified.

10 See UJI 14-612. However, in addressing the reckless child abuse instruction as it was

11 written, containing the questionable “knew or should have known” language as was

12 present here, the Supreme Court instructed that remand for a new trial depends on

13 whether the evidence at trial was sufficient to support the conviction. Consaul, 2014-

14 NMSC-030, ¶ 41. We therefore examine the evidence presented by the State at trial.

15   {21}   In this case, both Mother and A.C. testified to an altercation between Mother

16 and Defendant. While the facts surrounding the purported headbutt differed within the

17 testimony of the two witnesses, both agreed that Mother was holding T.T., Defendant

18 became angry, and he made head-to-head contact with Mother to a degree that

19 effectuated her forced backward movement. Defendant compares his conduct to that


                                              15
 1 in Trujillo, wherein the defendant was charged with child abuse under the theory of

 2 endangerment based on an incident in which the defendant beat the child’s mother

 3 while the child was merely present and where the defendant ordered the child to leave

 4 the room. 2002-NMCA-100, ¶¶ 4, 5, 7. This Court determined that based on those

 5 circumstances there was insufficient evidence to support the child abuse conviction.

 6 Id. ¶ 20. In our view, Defendant’s conduct here and that of the defendant in Trujillo

 7 are not similar because T.T. was directly endangered by, and was not in a separate

 8 location apart from, the actions of Defendant.

 9   {22}   This case is more analogous to State v. Ungarten, 1993-NMCA-073, 115 N.M.

10 607, 856 P.2d 569, and State v. McGruder, 1997-NMSC-023, 123 N.M. 302, 940 P.2d

11 150, both which were abrogated on other grounds by State v. Chavez, 2009-NMSC-

12 035, 146 N.M. 434, 211 P.3d 891. In Ungarten, the defendant was convicted of child

13 abuse after an altercation with a child and the child’s family where the defendant

14 waved and thrust a knife in their direction. 1993-NMCA-073, ¶¶ 5, 12. This Court

15 concluded in Ungarten that the defendant’s claim that there was not substantial

16 evidence to support the child abuse charge was without merit. Id. ¶ 13. Similarly, in

17 McGruder, the defendant was charged with child abuse by endangerment after fatally

18 shooting the mother’s boyfriend and threatening to shoot the mother while the child

19 was standing behind her. 1997-NMSC-023, ¶¶ 5-7, 37-38. The Supreme Court


                                            16
 1 determined that based on this conduct, there was substantial evidence to support the

 2 child abuse conviction. Id. ¶¶ 38-39.

 3   {23}   We acknowledge that the standard by which our courts measure child abuse by

 4 endangerment has been modified subsequent to both Trujillo and Ungarten, evolving

 5 from a “reasonable probability or possibility that the child will be endangered[,]”

 6 Ungarten, 1993-NMCA-073 ¶ 11 (internal quotation marks and citation omitted), to

 7 a “substantial and foreseeable risk of harm[,]” Chavez. 2009-NMSC-035, ¶ 22

 8 (emphasis omitted), to now a “substantial and unjustifiable risk of serious harm.” UJI

 9 14-612(3); see Consaul, 2014-NMSC-030, ¶ 37. Yet the holdings of these cases are

10 still sound as shown by our Supreme Court’s reliance on them as examples of cases

11 where “the seriousness of the threatened injury has . . . been apparent.” Chavez, 2009-

12 NMSC-035, ¶ 24. We conclude this also to be one such case.

13   {24}   Unlike Trujillo, where the child merely witnessed a portion of an attack on the

14 mother and was absent for the remainder of the attack, here T.T. was not only present

15 for the entirety of the altercation due to his dependence on Mother, but he was situated

16 in the very midst of the aggression, between his parents. See McGruder, 1997-NMSC-

17 023, ¶¶ 38-39 (affirming a child abuse conviction where the child was behind the

18 mother while the defendant threatened the mother). It is clear from this set of

19 circumstances that Defendant caused T.T. to be placed “within the zone of danger and


                                              17
 1 physically close to an inherently dangerous situation.” Gonzales, 2011-NMCA-081,

 2 ¶ 18 (internal quotation marks and citation omitted). Because we view the evidence

 3 in the light most favorable to the verdict, based on the evidence presented, “[t]he jury

 4 was entitled to view such conduct as endangering either the life or health of the child.”

 5 McGruder, 1997-NMSC-023, ¶ 38.

 6 III.     Validity of Child Abuse Conviction

 7   {25}   Finally, Defendant argues that because he was acquitted of having battered

 8 Mother, the charge set forth in Count 3 that arose from the same conduct as the

 9 reckless child abuse charge, his conviction for Count 2 is inconsistent and should be

10 reversed. Defendant cites no authority for this proposition and argues only that by

11 having been determined not to have battered Mother, Defendant could not have

12 recklessly endangered T.T. He maintains the differing verdicts are “so contrary to

13 each other that the basis upon which each was reached cannot be determined[.]”

14 Defendant concedes that this issue was not preserved and asks again that we review

15 for fundamental error pursuant to Rule 12-216(B)(2).

16   {26}   “Inconsistent verdicts are those which are so contrary to each other that the

17 basis upon which each verdict was reached cannot be determined.” Fernandez, 1994-

18 NMCA-056, ¶ 38. However, “we review the verdict of conviction, not the verdict of

19 acquittal.” Id. ¶ 39; see State v. Roper, 2001-NMCA-093, ¶ 24, 131 N.M. 189, 34 P.3d


                                              18
 1 133 (“We have frequently said that our business is to review the verdicts of

 2 conviction, and not concern ourselves with any alleged acquittals, and thus we do not

 3 entertain contentions alleging that the verdicts are irreconcilable.”). Therefore, even

 4 if the acquittal on the battery charge was irreconcilable with the child abuse

 5 conviction, we would not be required to reverse the conviction. See id. And as we

 6 have discussed, there is sufficient evidence to support that conviction. By looking to

 7 the conduct for which Defendant was convicted, and not reaching to incorporate that

 8 for which he was acquitted, our analysis again compels the conclusion that

 9 Defendant’s conviction was not premised upon fundamental error.

10 CONCLUSION

11   {27}   For the forgoing reasons, we affirm Defendant’s conviction for reckless child

12 abuse, as charged in Count 2.

13   {28}   IT IS SO ORDERED.


14                                                 _________________________________
15                                                 J. MILES HANISEE, Judge




                                              19
1 WE CONCUR:



2 _________________________________
3 JONATHAN B. SUTIN, Judge



4 _________________________________
5 LINDA M. VANZI, Judge




                                  20
