       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: October 7, 2013

Docket No. 31,429

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

SAMANTHA GARCIA,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Teddy L. Hartley, District Judge

Gary K. King, Attorney General
Santa Fe, NM
M. Anne Kelly, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Acting Chief Public Defender
Tania Shahani, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                         OPINION

GARCIA, Judge.

{1}     Samantha Garcia (Defendant) appeals her conviction for negligent child abuse by
endangerment pursuant to NMSA 1978, Section 30-6-1(D)(1) (2009). She raises three claims
of error, arguing that she was denied a fair and impartial jury when the district court placed
limitations on her questioning of prospective jurors during voir dire, that she was entitled to
a lesser-included offense instruction on abandonment of a child, and that the district court
erred in denying her motion for a directed verdict on the child abuse charge. We address only

                                              1
the motion for directed verdict and conclude that the evidence was insufficient to support
Defendant’s conviction. We reverse.

BACKGROUND

{2}    Based on the following evidence, a jury convicted Defendant of one count of
negligent child abuse by endangerment and one count of possession of drug paraphernalia.
On May 15, 2010, Defendant’s neighbor (Neighbor) found Defendant’s three-year-old boy
(Child) wandering around outside their apartment building at 2:00 a.m. Child was wearing
only a dirty diaper. He was crying and cold. There was no way to tell where Child had
wandered after he left his home, nor was it possible to tell how long Child had been
wandering outside. The apartment building was located in a high-crime area, and there was
a busy parking lot, alley, and street nearby.

{3}     Neighbor asked Child where he lived, and he pointed toward the apartment where
he and Defendant lived. The door to Defendant’s apartment was ajar when Neighbor
returned Child home. Neighbor called inside the apartment, but no one responded. She
entered the apartment, changed the child’s diaper, put him to bed, and called the police.
Defendant’s apartment was filled with empty beer cans, vodka bottles, and other trash, and
there was vomit on the floor. There was a marijuana pipe on the dining room table, along
with a small burnt portion of a marijuana cigarette, and a knife in the bedroom.

{4}     After calling the police, Neighbor found Defendant asleep in another bedroom of the
apartment. Neighbor attempted to rouse Defendant by nudging her repeatedly and telling her
that her baby had been outside. Defendant responded, “It’s ok,” and did not get up. Neighbor
believed that Defendant was intoxicated. When the police arrived, Defendant admitted that
she had gotten high and drunk.

{5}      Defendant did not testify and called no witnesses on her behalf. After the close of the
State’s evidence, Defendant moved for a directed verdict on the charge of negligent abuse
by endangerment. Defendant argued that State v. Chavez, 2009-NMSC-035, 146 N.M. 434,
211 P.3d 891, required the State to prove beyond a reasonable doubt that the risk to Child
was foreseeable and that it was probable to cause serious harm to Child. Defendant argued
that the State failed to meet this burden of proof because it produced no evidence to show
that Child had been in a direct line of harm or otherwise exposed to anything more than a
mere possibility, rather than a probability, of danger. Defendant further noted that nothing
in the State’s evidence indicated that Defendant’s intoxication contributed to Child’s episode
of wandering outside the apartment. The district court denied Defendant’s motion. Defendant
timely raised her appeal with this Court.

STANDARD OF REVIEW

{6}    To review a district court’s denial of a motion for directed verdict, we must
determine whether sufficient evidence was adduced to support the underlying charge. State

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v. Sena, 2008-NMSC-053, ¶ 10, 144 N.M. 821, 192 P.3d 1198.

        The test for sufficiency of the evidence is whether substantial evidence of
        either a direct or circumstantial nature exists to support a verdict of guilt
        beyond a reasonable doubt with respect to every element essential to a
        conviction. When considering the sufficiency of the evidence, this Court
        does not evaluate the evidence to determine whether some hypothesis could
        be designed which is consistent with a finding of innocence. Instead, we
        view the evidence as a whole and indulge all reasonable inferences in favor
        of the jury’s verdict while at the same time asking whether any rational trier
        of fact could have found the essential elements of the crime beyond a
        reasonable doubt.

Id. (emphasis, alteration, internal quotation marks, and citations omitted).

DISCUSSION

{7}     The district court determined that the State had presented a prima facie case of child
abuse by endangerment and submitted this theory to the jury, denying Defendant’s motion
for directed verdict. Child abuse by endangerment, a third degree felony, occurs when an
adult knowingly, intentionally, or negligently places a child “in a situation that may
endanger the child’s life or health.” Section 30-6-1(D)-(E). Defendant argues on appeal that
the evidence was insufficient to support her conviction because the State failed to prove that
the risk to Child was foreseeable and probable.

{8}    In this case, the State argued that Defendant’s intoxication was criminally negligent
because it left Child without adequate supervision. See State v. Schoonmaker, 2008-NMSC-
010, ¶ 44, 143 N.M. 373, 176 P.3d 1105 (explaining that the child endangerment statute
“evinces a legislative intent to use the concept of criminal negligence . . . as the standard for
negligent child abuse”). A defendant is criminally negligent, if she “knew or should have
known of the danger involved and acted with a reckless disregard for the safety or health of
the child.” Section 30-6-1(A)(3). Thus, the State had the burden to prove beyond a
reasonable doubt that Defendant’s intoxication caused Child to be placed in a situation that
endangered Child’s health or safety, that Defendant knew or should have known of the
danger that would result from her intoxication, and that Defendant nonetheless chose to
disregard the risk and acted with reckless disregard for the safety or health of her child. Id.;
see Chavez, 2009-NMSC-035, ¶ 22 (requiring the prosecution, in order to support a
conviction pursuant to Section 30-6-1(D)(1), to prevent evidence which establishes that a
defendant’s conduct “created a substantial and foreseeable risk of harm” (emphasis, internal
quotation marks, and citation omitted)). The State contends that it met this burden by simply
presenting evidence that Defendant was intoxicated on the night in question and that Child
was found in the middle of the night wandering outside the apartment building on his own.
The State argues that this evidence was sufficient to demonstrate that Defendant was too
intoxicated to adequately supervise Child after “Defendant’s actions . . . placed [Child]

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directly in a zone of danger.”

{9}     On three occasions, this Court has upheld a parent’s conviction for negligent child
abuse based on evidence of inadequate child supervision involving intoxication or substance
abuse. State v. Schaaf, 2013-NMCA-082, ¶ 18, 308 P.3d 160 (holding that the defendant’s
admission to the danger presented by a combination of serious risks apparent in the
children’s living environment along with the defendant’s “compromised state” arising from
ongoing methamphetamine use provided sufficient evidence to prove “an ongoing and
pervasive zone of imminent danger” such that it constituted criminal child endangerment);
State v. Chavez, 2007-NMCA-162, ¶¶ 3, 11, 143 N.M. 126, 173 P.3d 48 (holding that there
was sufficient evidence to find the defendant guilty of child abuse where evidence indicated
that she was high on methamphetamine, “placed [her c]hild in a sleeping arrangement that
was highly and obviously dangerous to an infant and then completely failed to monitor [her
child]”); State v. Watchman, 2005-NMCA-125, ¶ 5, 138 N.M. 488, 122 P.3d 855 (holding
that there was sufficient evidence to find the defendant guilty of child abuse when she drove
drunk to a bar with her child and then left the child in a dangerous parking lot alone). In all
of these cases, the defendants failed to provide supervision of their children after placing
them in dangerous situations where parental supervision was necessary. See Schaaf, 2013-
NMCA-082, ¶ 17 (“[T]he evidence supports a rational inference that [the defendant’s]
judgment was highly impaired in the presence of substantial risks of harm to the children and
that [the d]efendant had not secured and would not secure the substantial risks from the
children.”); Chavez, 2007-NMCA-162, ¶ 11 (“[The d]efendant testified that she knew [her
c]hild could fall off the bed if left alone, and agreed it was important to check on him,
especially since he was sick.”); Watchman, 2005-NMCA-125, ¶ 5 (“The child was placed
in a dangerous situation, which was created by [the d]efendant because the child was in the
cab of an unlocked truck, at approximately 1:30 a.m., in a high traffic area ([the bar’s]
parking lot, with approximately 200-240 people in the bar that night) unprotected and
vulnerable to any passerby.”).

{10} We conclude that these cases are distinguishable because, in all three cases, there was
specific evidence of antecedent conduct by the parent that placed the child in a dangerous
situation and in the direct line of danger. See State v. Gonzales, 2011-NMCA-081, ¶ 20, 150
N.M. 494, 263 P.3d 271 (“[E]ndangerment is something that exists as an antecedent to any
harm that might befall a child.”), aff’d on other grounds, 2013-NMSC-016, 301 P.3d 380.
In the present case, we see no evidence in the record which indicates that Defendant’s act
of falling asleep in her apartment bedroom intoxicated, or any subsequent failure to act,
created a substantial and foreseeable risk of harm directed to Child. Id. ¶ 18 (“[B]y
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.” (internal quotation marks and citation omitted)). “The risk cannot
be merely hypothetical, as the child must be physically close to an inherently dangerous
situation of the defendant’s creation.” Id. ¶ 21 (emphasis added)). The foreseeability of
danger must be “directed toward the child[].” Id. ¶ 20.


                                              4
{11} The evidence presented by the State during trial was only sufficient to establish that
Defendant was intoxicated when she fell asleep in her bedroom on the night in question.
Factually, this particular event of falling asleep did not create a foreseeable risk of danger
directed toward Child. We note that Defendant’s behavior was not admirable. But the record
only establishes that Child wandered outside while Defendant was asleep at 2:00 a.m. It
would be speculation to consider whether Child attempted to rouse Defendant before leaving
the apartment, whether Child opened the door to the apartment himself, or whether any other
action or inaction could be attributed to Defendant as creating a substantial and foreseeable
risk of harm to Child on the night in question. See Schaaf, 2013-NMCA-082, ¶ 12 (“Another
important factor is [the d]efendant’s recognition and admission regarding the serious nature
of the real risks of harm present in the house and the potential injury or death that the
children were exposed to there.”); State v. Hughey, 2007-NMSC-036, ¶ 13, 142 N.M. 83,
163 P.3d 470 (noting that without evidentiary support, the jury would be improperly left to
speculate about the issue presented). “[N]egligent child abuse is no accident” and any such
reference is “a clear misstatement of the law.” Gonzales, 2011-NMCA-081, ¶ 26 (internal
quotation marks and citation omitted). A jury must draw its reasonable conclusions from the
evidence produced at trial, it must not be left to speculate in the absence of such proof. State
v. Trossman, 2009-NMSC-034, ¶ 24, 146 N.M. 462, 212 P.3d 350. Simply falling asleep
intoxicated in a separate bedroom is not enough to establish child endangerment.

{12} The State failed to connect Child’s ability to wander out of the apartment with
Defendant’s intoxication or otherwise prove that Defendant acted or failed to act with any
resulting foreseeable risk that endangered Child’s life or health. See Gonzales, 2011-NMCA-
081, ¶ 20 (“[P]lacing 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.”). We
recognize that Defendant’s intoxication may have caused some potential or speculative risk
to Child, despite being in the security of their residence for the night. As it turned out, Child
wandered outside in the middle of the night, an unsafe and potentially dangerous situation.
However, this Court does not measure endangerment by the resulting injury, it is measured
by the antecedent foreseeability of the actual risk of substantial harm to the child. State v.
Webb, 2013-NMCA- 027, ¶ 22, 269 P.3d 1247 (“No one could have foreseen that [the child]
would have or develop an allergy to penicillin, which would complicate her treatment. [The
d]efendant cannot be convicted for child abuse for failing to perceive a risk . . . of which
nobody was aware.”), cert. denied, 2013-NMCERT-002, 300 P.3d 132; Gonzales, 2011-
NMCA-081, ¶ 20 (“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 [the d]efendant’s acts.”). The record is
completely devoid of evidence indicating that Defendant’s voluntary intoxication created the
situation in which her unsupervised child would foreseeably leave the apartment at 2:00 a.m.
and be vulnerable to a substantial risk of injury. Webb, 2013-NMCA-027, ¶ 23 (“The
[prosecution] did not present sufficient evidence from which a jury could find that [the
d]efendant’s conduct created a substantial and foreseeable risk of serious harm to [the
child].”); Chavez, 2009-NMSC-035, ¶ 37 (“The problem . . . is the lack of any specific
evidence connecting these conditions to a substantial and foreseeable risk of harm.”).

                                               5
{13} We realize that the evidence established that Defendant was engaged in the use of
alcohol and illegal drugs. Defendant was negligent when she became intoxicated. It is both
imprudent and generally negligent to use drugs and alcohol while being responsible for a
child. But we refuse to hold that a defendant who gets intoxicated and falls asleep in the
same apartment as her child, with nothing more, is criminally negligent. See Webb,
2013-NMCA- 027, ¶ 22 (“The risk must be of such a nature and degree that the actor’s
failure to perceive it, . . . involves a gross deviation from the standard of care that a
reasonable person would observe in the actor’s situation.” (internal quotation marks and
citation omitted)); State v. Massengill, 2003-NMCA-024, ¶ 45, 133 N.M. 263, 62 P.3d 354
(“Our Supreme Court has determined that the child abuse statute contains no indication that
the [L]egislature intended felony punishment to attach to ordinary negligent conduct.”
(internal quotation marks and citation omitted)). We, as a society, cannot punish parents
under a theory of strict liability for every imaginable error in judgment, even if a child is
injured. “[I]f imprudent and possibly negligent conduct were sufficient to expose a care giver
to criminal liability for child endangerment, undoubtedly the majority of parents in this
country would be guilty of child endangering—at least for acts of similar culpability.” Id.
¶ 46.

{14} In this case, the limited evidence merely showed that Defendant did not wake up
when Child awoke and wandered out of their apartment late at night. There was no evidence
that Defendant “acted with reckless disregard, . . . created a substantial and foreseeable risk,
. . . [and] was wholly indifferent . . . to the welfare and safety of [Child].” The State failed
to establish \any connection between Defendant’s intoxication and Child’s act of wandering
out of the apartment on the night in question. We do not condone Defendant’s behavior, but
based on the undeveloped factual circumstances in this specific case, we cannot hold
Defendant criminally negligent. Our review of the record leads us to conclude that
Defendant’s conviction for child abuse by endangerment is not supported by substantial
evidence and must be reversed.

CONCLUSION

{15} For the foregoing reasons, we reverse Defendant’s conviction for child abuse by
endangerment and remand to the district court for proceedings consistent with this Opinion.
We need not address Defendant’s remaining contentions of error.

{16}   IT IS SO ORDERED.

                                               ____________________________________
                                               TIMOTHY L. GARCIA, Judge

JONATHAN B. SUTIN, Judge, (specially concurring)

MICHAEL E. VIGIL, Judge, (dissenting)


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SUTIN, Judge (specially concurring).

{17} Although the facts of this case are disturbing, to conclude that there was sufficient
evidence for jury consideration on the abuse charge expands the scope of Section 30-6-
1(D)(1) beyond what can reasonably have been the Legislature’s intent or any permissible
reach of the statute. To interpret Section 30-6-1(D)(1) as permitting the State under the
circumstances of this case to charge an intoxicated parent who falls asleep and whose three-
year-old child ends up outside at 2:00 a.m., leaves thousands of parents at risk of felony
prosecution based on little, if anything, more than evidence of intoxication, sleep, and an
apparently unsecured door—evidence that, viewed objectively, without more, should not
constitute the level of behavior contemplated by the Legislature in criminalizing, by felony,
negligent child abuse by endangerment.

{18} “[C]riminal negligence for purposes of child endangerment is measured
objectively[.]” Chavez, 2009-NMSC-035, ¶ 45. It occurs “when a person should be aware
of a substantial and unjustifiable risk that harm will result from his conduct.” Id. (alteration,
internal quotation marks, and citation omitted). And it requires the risk to be “of such a
nature and degree that the [defendant’s] failure to perceive it, considering the nature . . . of
[the defendant’s] conduct and the circumstances known to [the defendant], involves a gross
deviation from the standard of care.” Id. (internal quotation marks and citation omitted). By
classifying it as a third degree felony, our Legislature anticipated that criminal prosecution
of child abuse by endangerment would be reserved for application to the most dangerous
circumstances and not to “theoretical dangers.” Id. ¶ 16.

{19} Two sources of possible risk of harm to Child existed in this case: (1) the condition
of the apartment, in which vodka bottles, beer cans, an open pocket knife, a partially burned
marijuana cigarette, and a home-made marijuana pipe were found; and (2) Defendant
becoming intoxicated by drinking alcohol and smoking marijuana, then falling asleep, and
the fact that the three-year-old Child left the apartment of his own accord. Neither provided
sufficient evidence for conviction in this case.

The Apartment

{20} In my view, the evidence regarding the condition of the apartment was not sufficient
in any respect to support the charge. Although Officer Mullins testified that he found a small,
burnt portion of a marijuana cigarette in the apartment, he did not specify where it was. He
testified that the alcohol-related bottles and cans that were within Child’s reach were empty,
and he was concerned not that Child would drink from them, but that Child could cut himself
on the cans. The State presented no evidence that any liquid remained in any bottle or can
within Child’s reach. The opened folding pocket knife was on the dresser in Defendant’s
bedroom; and although Officer Mullins, based on a “visual reference” that involved
estimating Child’s height as compared with the height of the dresser, believed that Child was
tall enough to reach the knife, Child would have had to reach over his head to get it. The
marijuana pipe was in the middle of the dining room table; and the pipe appeared to have

                                               7
been recently used, but there was no evidence that there was marijuana in the pipe when
Officer Mullins found it.

{21} In criminalizing child abuse, the Legislature intended the statute to encompass
“conduct that creates a truly significant risk of serious harm to children.” Id. ¶ 22. The
evidence relating to the bottles, cans, and knife was sufficient to establish a risk of harm that
might well have alerted the Children, Youth and Families Department to initiate civil abuse
and neglect proceedings, but, viewed objectively, the evidence was not sufficient to establish
a risk of harm giving rise to a felony charge of criminal child endangerment. See id. ¶¶ 12-16
(recognizing that within the framework of civil and criminal laws aimed at ameliorating
child abuse and neglect, the prosecution has “a broad array of civil remedies” and that
criminal sanctions for child abuse fall on “the far end of [the] spectrum” and are “reserved
for the most serious occurrences”).

{22} Marijuana, of course, can pose a known risk of harm.1 See State v. Graham, 2005-
NMSC-004, ¶¶ 10, 14, 137 N.M. 197, 109 P.3d 285 (upholding a child abuse conviction
where children were in a house in which marijuana was found on the floor, and in an infant’s
crib, and was easily accessible to the children). But in this case there was no evidence that
the burnt marijuana cigarette was within Child’s reach. Nor was there evidence that the
amount of marijuana that remained in the small, burnt portion of the cigarette, or that the
home-made marijuana pipe, presented a risk of “serious harm” to Child. Under these
circumstances, the marijuana-related evidence does not support a negligent endangerment
conviction. See Chavez, 2009-NMSC-035, ¶¶ 37-40 (requiring the prosecution to establish
a connection between the hazards present in the home and a serious risk of harm to the
children).

{23} In sum, the evidence of the condition of Defendant’s apartment, whether parsing the
evidence or considering the totality of the circumstances, was insufficient to prove a “serious
risk” as that term was used by our Legislature in drafting Section 30-6-1(D)(1) and as it has
been interpreted by our Supreme Court as evincing legislative purpose “to punish conduct
that creates a truly significant risk of serious harm to children.” Chavez, 2009-NMSC-035,
¶ 22. Further, the condition cannot be piggy-backed onto a felony abuse charge based on
Defendant’s conditions of intoxication, sleep, and failure to secure the door.

Defendant’s Intoxication and Sleep and Child Outside

{24} Paramount to the State’s argument regarding the sufficiency of the evidence is the
risk of harm that was created by a combination of Defendant’s intoxication and the fact that
Child left the apartment. The evidence at trial left no room for doubt that Defendant was
intoxicated, sound asleep and, apparently, oblivious to the fact that Child had left the


        1
         As can many prescribed medications, including “medical marijuana,” if carelessly
left within a child’s reach.

                                               8
apartment.

{25} Yet, viewing the evidence objectively, as we must, and in terms of legislative intent,
the critical question is whether the evidence at trial of the foreseeability factor was sufficient
for a jury to convict for felony child abuse under Section 30-6-1(D). See Chavez, 2009-
NMSC-035, ¶ 47 (“However, in addition to the gravity of the potential [harm], we must also
consider whether it was foreseeable that an injury would actually occur.”). In other words,
was the possibility of Child leaving the apartment of his own accord an “obvious risk” such
that a reasonable person would have, and Defendant should have, perceived it? See id. ¶¶ 45,
52 (discussing the notion of foreseeability in the context of negligent child endangerment).
The State failed to present any evidence to support a jury determination that Defendant
should have known that Child would leave the apartment by himself and wander outside.

{26} Nothing was presented to show whether the door was left open or opened by Child,
to show whether the door was locked by a particular locking mechanism and Child had
learned from observation how to work the lock, or to show that Child had a propensity to
wake up at night and wander around, much less outside. No evidence was presented
regarding Child’s night-time habits, including whether he ever left his bed after midnight,
or whether he tended to wake Defendant up or get her attention after she went to bed. Nor
did the State present evidence regarding the extent, if any, to which Child knew how to
operate the door, or whether he had ever, before the night of this incident, attempted to leave
or had ever left Defendant’s apartment by himself. See id. ¶¶ 52-53 (reversing a child abuse
by endangerment conviction where the conviction was “supported primarily by speculation
and surmise”). Nor was there evidence whether Defendant had secured the door (as she may
always have done), and her boyfriend had opened the door and failed to secure it afterward.
In sum, what we have in this case is the State’s failure to present sufficient evidence to prove
that Defendant should have been concerned about a risk of Child going outside that night.
In other words, the State did not establish that the risk of Child leaving the apartment in the
middle of the night to wander around outside was an obvious one that a reasonable person
would have perceived and of which Defendant should have been aware. See id. ¶¶ 45, 47,
52. The jury was thus left to speculate as to the foreseeability of the risk.

{27} Thus, in the absence of evidence other than intoxication, sleep, and the fact that Child
was outside, the State did not establish foreseeability. Defendant’s intoxication and sleep
status did not, objectively speaking, create more than a mere possibility that Child might
wander outside around 2:00 a.m. by himself. The State cannot defend its failure of evidence
by arguing that the factors of foreseeability can come only from Defendant testifying. We
are left in the dark whether witnesses existed who could testify regarding factors such as
those we have identified relating to foreseeability, including, possibly, the boyfriend who
was at Defendant’s apartment overnight, or relatives, friends, and neighbors, who may have
been familiar with Child’s propensities and capabilities and with Defendant’s knowledge.

{28} The facts of this case unquestionably induce a visceral or emotional reaction that
stems from the circumstance of a three-year-old child being found outside at 2:00 a.m., in

                                                9
the cold and alone, while his mother lay inside her apartment, intoxicated and asleep. One’s
immediate reaction is to conclude that any parent who voluntarily drinks too much and to
a point of falling into a heavy sleep and who, presumably, fails to first assure that the
apartment’s doors are secure deserves to be charged and convicted for felony child abuse and
to risk imprisonment. Viewed objectively, however, the facts established nothing more than
that Defendant became intoxicated in her own home and fell asleep, and Child was found
outside. That Defendant responded with what appeared to be an “I-could-not-care-less”
attitude to the neighbor’s arousing her to an awakened state says nothing about
foreseeability, especially given that Defendant was awakened from what was apparently a
deep sleep and intoxicated condition. The fact of the matter stands: no evidence was
presented to support the jury’s finding, beyond a reasonable doubt, that Defendant could or
should have foreseen that Child would leave the apartment in the middle of the night of his
own accord and wander outside.

{29} Even were one to assume that Defendant fell asleep without first locking the door in
a failsafe manner to prevent Child from leaving, to uphold Defendant’s conviction in this
case is to set a very worrisome, if not dangerous precedent—one paramount to saying that
any parent of a child who becomes intoxicated in his or her own home, or even one who
takes sleep-inducing drugs such as sleeping pills, muscle relaxants, or cold medication and
then falls into a heavy or deep sleep forgetting to first secure all doors leading outside, is
chargeable for a third degree felony should his or her child go outside with exposure to
possible harm. This cannot have been the intent of the Legislature in drafting Section 30-6-
1(D). See Chavez, 2009-NMSC-035, ¶ 10 (“A criminal statute may not be applied beyond
its intended scope, and it is a fundamental rule of constitutional law that crimes must be
defined with appropriate definiteness.” (internal quotation marks and citation omitted)); id.
¶ 16 (explaining that “our endangerment statute [taken literally] could be read broadly to
permit prosecution for any conduct, however remote the risk, that may endanger a child’s
life or health”; thus, courts must take “a more restrictive view of the endangerment statute”
and apply it only to the most serious occurrences of child endangerment (alteration and
internal quotation marks omitted)).

{30} To summarize, the bare facts of this case—intoxication to some unknown degree
resulting in some degree of heavy sleep and Child having left the apartment—are little
different from, and could well constitute, the unastonishing circumstances that regularly exist
for thousands of parents throughout New Mexico who drink alcoholic beverages, take
prescribed or over-the-counter sleep-inducing drugs, and fall asleep, even including parents
who forget to assure that the front door is secure. Without greater objective proof
establishing foreseeability, upholding Defendant’s conviction leaves far too wide a
prosecutorial universe than what I believe the Legislature could reasonably have intended.
As the facts stand in this case, Defendant’s conduct should have been handled, if at all,
pursuant to the Legislature’s civil abuse and neglect laws.

                                               __________________________________
                                               JONATHAN B. SUTIN, Judge

                                              10
VIGIL, Judge (dissenting).

{31} My colleagues conclude in separate opinions that the evidence in this case is
insufficient to satisfy the elements of negligent child abuse by endangerment. Close scrutiny
of those opinions demonstrates that what my colleagues have done is weigh the evidence,
contrary to our standard of review. I respectfully submit that viewing the evidence as we are
called to on appeal, the evidence is sufficient. Therefore, I dissent.

{32} Because my colleagues conclude that the evidence is not sufficient to support the
conviction for negligent child abuse, they do not address Defendant’s argument that
Defendant was entitled to have the jury consider abandonment of a child as a lesser-included
offense. On this point, I agree with Defendant. Since the district court denied Defendant’s
request for the lesser-included instruction, I would reverse and remand for a new trial.

SUFFICIENCY OF THE EVIDENCE

{33} At trial, a neighbor testified that while she was getting ready for work at
approximately 2:00 a.m., she heard Child crying outside. It had just finished raining, and it
was cold. She went outside and found the three-year-old Child wandering around the parking
lot wearing only a dirty diaper, and crying for his mother. A police officer who later arrived
at the scene testified that the apartment and parking lot was in a high-crime area, that there
was lots of traffic in the parking lot and adjoining streets, and that there was a reasonable
probability that Child could have walked into traffic.

{34} The neighbor asked Child where he lived and he pointed to the open door of an
apartment in the complex. She called inside the apartment three or four times, but no one
answered. She then went into the apartment, changed Child’s diaper, put him to bed, and
gave him something to drink, before calling the police.

{35} Going into the other bedroom of the apartment, the neighbor found Defendant
sleeping on a bed. She repeatedly tried to awaken Defendant by nudging her and telling her
that her baby had been outside. Defendant’s response was to open her eyes, close them, and
say, “It’s ok.” She did not seem at all concerned and did not get up. Thinking that perhaps
Defendant did not understand English, the neighbor asked a friend to speak to her in Spanish,
and Defendant still did not respond, other than to look at them dazed and unresponsive.
Defendant appeared to be very intoxicated.

{36} When the police officer arrived at the apartment, Child looked terrified—he was
shaken and disturbed. The apartment was filled with empty beer cans, vodka bottles, and
other trash, and there was vomit on the floor in the dining area. There was also a small burnt
portion of a marijuana cigarette and a marijuana pipe made from tin foil on the dining room
table, which were within reach of Child. There was evidence that someone placed clothing
around a smoke detector, as if to prevent it from alerting to the presence of smoke. There
was also an open pocket knife on a table in Defendant’s bedroom, which was also in reach

                                             11
of Child.

{37} The officer saw Defendant sitting up in bed “zoned out.” Clothes, trash, and vomit
were also on the floor in the bedroom. Besides Defendant, there was also a man in the
bedroom, lying on the floor between the bed and wall, face down in a dirty diaper. The man
(who was not Child’s father) was taken outside, and Defendant was taken to the living room.
After receiving her Miranda rights, Defendant was asked if she knew what was going on,
and she responded that she had gotten drunk, was drunk, and had smoked marijuana from
the marijuana pipe.

{38} Defendant asserts that her motion for a directed verdict should have been granted
notwithstanding the foregoing evidence. In reviewing the denial of a motion for a directed
verdict, our task is to determine whether the underlying charge was proven by sufficient
evidence. Sena, 2008-NMSC-053, ¶ 10. Recently, our Supreme Court reiterated:

       The test for sufficiency of the evidence is whether substantial evidence of
       either a direct or circumstantial nature exists to support a verdict of guilty
       beyond a reasonable doubt with respect to every element essential to a
       conviction. The reviewing court views the evidence in the light most
       favorable to the guilty verdict, indulging all reasonable inferences and
       resolving all conflicts in the evidence in favor of the verdict. The question
       before us as a reviewing court is not whether we would have had a
       reasonable doubt about guilt but whether it would have been impermissibly
       unreasonable for a jury to have concluded otherwise.

State v. Torrez, 2013-NMSC-034, ¶ 40, 305 P.3d 944 (alterations, internal quotation marks
and citations omitted).

{39} Precedent already exists in which a parent was convicted of negligent child abuse by
endangerment based on evidence that the parent became intoxicated and left the child
unsupervised. In Watchman, 2005-NMCA-125, ¶ 4, a mother was convicted of negligent
child abuse by endangerment when she left her twenty-one-month-old child alone and asleep
on the seat of her unlocked truck. Id. ¶¶ 4-5. The truck was parked in the parking lot of a bar
where there were frequent fights, vandalism, and loitering. Id. ¶ 4. It was 1:30 a.m. when the
police found the child, and the mother was intoxicated. Id. Although no actual harm came
to the child, we concluded that there was sufficient evidence to support a finding that the
child was negligently endangered. This evidence included the fact that the child was left
alone in an unlocked vehicle, “unprotected and vulnerable to any passerby.” Id. ¶ 5. It was
also “reasonably foreseeable that the child could have climbed out of the truck and wandered
about the busy parking lot endangering himself by encountering an unsuspecting driver or
rowdy patrons.” Id. There was also evidence to support a finding that the mother had been
intoxicated when she drove her child to the bar’s parking lot. Id. Finally, we stated that the
fact that there were open containers of alcohol further supported the conviction, because
there was “a substantial and foreseeable risk of the consumption of such easily accessible

                                              12
toxic spirits.” Id. ¶¶ 4, 8.

{40} Although it is difficult to assess the likelihood that a child might get out of a car and
be harmed by drivers or rowdy patrons, our conclusion that injury to the child was
foreseeable due to a lack of supervision is significant here. It is also significant that there
was evidence to support a conclusion that the failure to supervise resulted, at least in part,
from voluntary intoxication. The rule I take from Watchman is that when a jury finds that
circumstances are present which require parental supervision to prevent danger to a child’s
life or health, and a parent unjustifiably chooses to incapacitate herself from providing that
supervision by intoxication, the jury may properly find that the parent has negligently
endangered the child and therefore committed negligent child abuse. Admittedly,
intoxication alone is not sufficient, but I submit that voluntary intoxication rendering one
unable to provide supervision that is otherwise required under the circumstances is
sufficient.

{41} Negligent abuse of a child that does not result in death or great bodily harm in
violation of Section 30-6-1(D)(1) consists of “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.” The crime requires criminal negligence, which “means 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.” Section 30-6-1(A)(3). Consistent with the statutory elements, the jury
was instructed that in order to find Defendant guilty, it was required to find each of the
following elements to have been proven beyond a reasonable doubt:

               1.    [Defendant] permitted [Child] to be placed in a situation
        which endangered the life or health of [Child];

                2.     [D]efendant acted with reckless disregard. To find that
        [Defendant] acted with reckless disregard, you must find that [Defendant]
        knew or should have known [D]efendant’s conduct created a substantial and
        foreseeable risk, [D]efendant disregarded that risk and [D]efendant was
        wholly indifferent to the consequences of the conduct and to the welfare and
        safety of [Child].

Applying Watchman, I conclude, under our standard of review, that each of these elements
was proven.

{42} There was sufficient evidence to support a finding by the jury that Defendant placed
her three-year-old child in danger when she became so intoxicated that she rendered herself
unconscious or semi-conscious such that she was unable to properly supervise him. There
was evidence that Defendant was so intoxicated that it was difficult to rouse her, and that
once roused, she seemed to lack comprehension or concern about what was going on around
her. In fact, when Defendant’s neighbor first tried to wake her and told her that Child had
been wandering around outside, Defendant said, “It’s ok” and did not get up. This evidence

                                              13
supported a conclusion that had she noticed that her child was missing, or had Child been
harmed and cried out, she would not have been able to react appropriately. There was
evidence that there were dangers in the house, such as a knife on a low table that was within
Child’s reach, and a small, burnt portion of a marijuana cigarette on the dining room table.
A knife is clearly a foreseeable danger to a child, and our Supreme Court has specifically
stated that marijuana also constitutes a foreseeable danger to a child. Graham, 2005-NMSC-
004, ¶ 12; see also Watchman, 2005-NMCA-125, ¶ 8 (concluding that it was foreseeable that
a child would be harmed by ingesting intoxicants that were in the child’s reach). There was
also evidence that someone had placed clothing around a smoke detector, as if to prevent it
from alerting to the presence of smoke. This intentional act endangered the child since if
there had been a fire, the detector might not have sounded an alarm in order to alert Garcia,
her companion, or the neighbors.

{43} A door does not open itself, and the front door of the apartment was open. This
supports a finding that either the intoxicated adults left the door open, allowing Child to get
outside, or Child was able to open the door and get outside on his own. Either of these
findings permitted the jury to conclude that it was foreseeable that Child could get outside.
Once outside, there were innumerable dangers to a three-year-old child wandering alone at
2:00 a.m. in a parking lot with lots of traffic in the parking lot and adjoining streets, wearing
only a soiled diaper in cold weather. There was also evidence that the neighborhood was a
dangerous one in which crimes were often committed. As in Watchman, once the child was
outside alone, he was “unprotected and vulnerable to any passerby.” 2005-NMCA-125, ¶
5.

{44} Child was not actually harmed. However, as our Supreme Court has explained, “[b]y
including endangerment in Section 30-6-1, the Legislature expressed its intent to extend the
crime of child abuse to certain conduct even if the child has not suffered physical harm.”
Graham, 2005-NMSC-004, ¶ 9. See Chavez, 2009-NMSC-035, ¶ 15 (“[C]hild abuse by
endangerment occurs when an adult knowingly, intentionally, or negligently places a child
‘in a situation that may endanger the child’s life or health.’” (citation omitted)). The fact that
Child was not harmed does not diminish the dangers Child was exposed to because of
Defendant’s negligence in this case. The evidence in my view supports the jury’s finding that
Defendant committed negligent child abuse by endangerment. Since the majority disagrees,
I dissent.

Denial of an Instruction on Abandonment

{45} Defendant contends reversible error resulted when the district court denied her
request that the jury be instructed on abandonment of a child as a lesser-included offense to
negligent child abuse by endangerment. I agree and would reverse and remand for a new trial
on this basis.

{46} The State first argues that Defendant did not adequately preserve this issue for review
on appeal because she did not tender a written instruction on abandonment in the district

                                               14
court. While Rule 5-608(D) NMRA provides that in order to preserve an error for “failure
to instruct on any issue, a correct written instruction must be tendered,” our Supreme Court
has stated that this rule is “subject to flexible enforcement that is consistent with its
underlying rationale.” State v. Skippings, 2011-NMSC-021, ¶ 25, 150 N.M. 216, 258 P.3d
1008. The purpose of the rule requiring a defendant to tender a correct written instruction
is to “alert the trial court to the defendant’s argument.” Id. (internal quotation marks and
citation omitted).

{47} Here, although Defendant did not tender a written instruction, she recited to the
district court the statutory elements of abandonment. Specifically, Defendant informed the
district court that Section 30-6-1(B) provides that abandonment of a child consists of a
parent “intentionally leaving or abandoning the child under circumstances whereby the child
may or does suffer neglect.” Defendant further explained why she believed the facts of the
case entitled her to an instruction on “leaving” but not “abandoning” Child. The district court
was therefore clear about the elements of abandonment on which Defendant wanted the jury
instructed. Further, after the district court ruled that an instruction on abandonment was not
going to be given, Defendant submitted a list of additional instructions she asserted would
have been appropriate to give if her request for the lesser-included instruction on
abandonment had been granted. Under all the foregoing circumstances, the purpose of the
rule was met and Defendant adequately preserved her argument for appellate review.
Compare State v. Badoni, 2003-NMCA-009, ¶ 7, 133 N.M. 257, 62 P.3d 348 (holding that
a defendant had failed to preserve an argument that a jury instruction should have been given
where the defendant “neither tendered a written instruction nor orally dictated one” and the
record did not show that the defendant “informed the trial judge of the specific language he
wanted in a modified instruction”).

{48} On the merits, the denial of a jury instruction presents a mixed question of law and
fact, which we review de novo. State v. Gaitan, 2002-NMSC-007, ¶ 10, 131 N.M. 758, 42
P.3d 1207. A defendant is entitled to a lesser-included instruction, under the cognate
approach adopted by our Supreme Court in State v. Meadors, 1995-NMSC-073, 121 N.M.
38, 908 P.2d 731, when the following conditions are satisfied:

       (1) the defendant could not have committed the greater offense in the manner
       described in the charging document without also committing the lesser
       offense, and therefore notice of the greater offense necessarily incorporates
       notice of the lesser offense; (2) the evidence adduced at trial is sufficient to
       sustain a conviction on the lesser offense; and (3) 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. ¶ 12. See State v. Juan, 2010-NMSC-041, ¶ 23, 148 N.M. 747, 242 P.3d 314 (stating the
tests that are applicable when a defendant makes the request for a lesser-included
instruction). Thus, we examine not only the offense charged, but also the evidence at trial
to determine if an instruction was properly denied. Id. In this regard, we are required to view

                                              15
the evidence in the light most favorable to the giving of the requested instruction. State v.
Boyett, 2008-NMSC-030, ¶ 12, 144 N.M. 184, 185 P.3d 355.

{49} In pertinent part, “abandonment of a child” consists of a parent “intentionally
leaving” a child “under circumstances whereby the child may or does suffer neglect.”
Section 30-6-1(B). Paraphrasing, “neglect” in turn means that because of the parent’s
“neglect or refusal” a child is without parental “care or control necessary for the child’s well-
being.” Section 30-6-1(A)(2). The connotation of the word “leaving” is one of separation.
Thus, “leave” is defined in part to mean, “to take leave of or withdraw oneself from whether
temporarily or permanently: go away or depart from.” Webster’s Third New Int’l Dictionary
1287 (unabridged ed. 2002). The word “leaving” is not limited to a physical, emotional,
psychological, or mental component, nor has our Legislature indicated that the word should
be so limited, when the care and well-being of a child is concerned. In fact, the Legislature
seems to have expressed its intent that all forms of “leaving” a child by a parent are
prohibited when the result is that the child is without parental care or control necessary for
the child’s well-being. When death or great bodily harm does not result from the
abandonment, a parent commits a misdemeanor. Section 30-6-1(B).

{50} The evidence at trial was that Defendant knowingly consumed marijuana and
consumed alcohol to such a degree as to incapacitate herself from being able to provide for
the proper care and control of Child and thereby endangered Child’s life or health. I have
already discussed why this evidence supports a conviction for negligent child abuse by
endangerment. The evidence also supports a conviction for abandonment: her intoxication
caused her to “leave” her child, rendering her unable to provide for the proper care and
control necessary for the well-being of her three-year-old child. Thus, under the evidence
in this case, Defendant could not commit the third degree felony of negligent child abuse by
endangerment without also committing the misdemeanor of abandonment of a child by
leaving Child. The dispute for the jury to determine was whether Defendant’s conduct
resulted in the failure to provide for the well-being of Child or resulted in endangering
Child’s life or health. Under the cognate approach of Meadors reversible error resulted when
the district court refused Defendant’s request that the jury be instructed on the lesser-
included offense of abandonment of a child.

CONCLUSION

{51} For the foregoing reasons, I would reverse Defendant’s conviction for negligent child
abuse by endangerment and remand for a new trial in which the jury is entitled to decide
whether Defendant committed the third degree felony offense of negligent child abuse by
endangerment, or the misdemeanor offense of abandonment of a child. Since the majority
disagrees, I dissent.

                                                __________________________________
                                                MICHAEL E. VIGIL, Judge


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