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                                                          New Mexico Compilation
                                                        Commission, Santa Fe, NM
                                                       '00'05- 16:46:40 2013.02.28
Certiorari Denied, February 7, 2013, No. 33,983

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-027

Filing Date: December 12, 2012

Docket No. 31,577

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

HARLA WEBB,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
Karen L. Parsons, District Judge

Gary K. King, Attorney General
Olga Serafimova, Assistant Attorney General
Santa Fe, NM
Sri Mullis, Assistant Attorney General
Albuquerque, NM

for Appellee

Jacqueline L. Cooper, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                       OPINION

GARCIA, Judge.

{1}    Defendant Harla Webb signed the written consent form to allow a piercing to occur
on a minor without obtaining authorization or permission from the minor’s parent or legal
guardian. Though the piercing was successful, the minor sustained serious injuries as a

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result of an accidental fall in the tattoo parlor. Defendant appeals her convictions for child
abuse by endangerment without great bodily harm and contributing to the delinquency of a
minor. We affirm Defendant’s conviction for contributing to the delinquency of a minor but
reverse her conviction for child abuse by endangerment because the State did not present
sufficient evidence from which the jury could find that Defendant’s conduct created a
substantial and foreseeable risk of harm.

BACKGROUND

{2}     On May 20, 2009, Defendant picked up her daughter, Steffanie, and two of her
daughter’s friends, including fifteen-year-old Nicole, from Ruidoso Middle School.
Defendant and Nicole were not related and had never previously met. Steffanie and Nicole
had arranged for Nicole to be picked up by Defendant because Steffanie was going to get her
belly button pierced and Nicole wanted to get her tongue pierced.

{3}     Defendant drove the girls to Tre’s Tattoo Studio in Ruidoso. Nicole told Defendant
that her mother, Jennifer “Michelle” Pino, had given her permission to have her tongue
pierced, but this was not true. Nicole had sufficient cash to pay for the piercing, which
Defendant believed meant that Nicole’s mother had given her permission. Defendant did
not contact Nicole’s mother.

{4}    When they arrived at Tre’s Tattoo Studio, the owner, Joe “Tre” Garcia, provided
Steffanie and Nicole with a piercing record and release form (Release Form). Nicole
completed the top portion of the Release Form, providing her name, contact information,
age, and date of birth. She indicated that she did not have any allergies, history of bleeding,
or blood borne irregularities. In accordance with New Mexico law, 16.36.5.11 NMAC
(5/16/2008), the Release Form required a parent or legal guardian to consent to a minor’s
piercing. The Release Form states:

       A person may not perform a piercing on a minor without the consent of the
       minor’s parent or legal guardian, and an establishment may not perform a
       piercing on a minor under the age of 18 unless the minor is accompanied by
       a (Parent or Legal Guardian). I authorize the piercing described to be
       performed on my child.

Defendant printed her name and signed as Nicole’s parent or legal guardian.

{5}     There was conflicting testimony surrounding Defendant’s act of signing Nicole’s
Release Form. Garcia testified that he asked Defendant whether Steffanie and Nicole were
her daughters and Defendant answered, “Yes.” He said that if Defendant had told him that
she was not related to Nicole, he would not have performed the piercing. Defendant testified
that she did not present herself as Nicole’s mother or guardian. She said she signed the
Release Form because Garcia told her to sign it and she “didn’t think it was that big of a
deal.”

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{6}    Nicole received a tongue piercing without complications. She then sat on a chair to
watch Steffanie receive her piercing. Before Steffanie received her piercing, Nicole passed
out and hit the tile floor face first. She was unconscious for approximately ten to fifteen
seconds. When she woke up, she looked in the mirror and saw blood “gushing everywhere.”
She noticed one of her teeth was missing and two were damaged. She had bruising on her
face and body and was “in a lot of pain.”

{7}    Nicole testified that Defendant did not offer to call 911 or take her to the hospital.
Garcia testified that Defendant did not try to help Nicole in any way and told Garcia that it
was a good thing she was taking Nicole to the dentist the next day. Defendant testified that
she wanted to call 911 or take Nicole to the hospital but Nicole said she was okay.
Defendant testified that Nicole appeared to have “a couple chipped teeth” but “seemed fine.”

{8}     Defendant left the tattoo parlor with the children and drove Nicole home. When they
arrived at Nicole’s house, Steffanie walked Nicole to her front door but did not go inside.
Defendant did not exit the car and did not inform anyone about the piercing or the accident.
Nicole told her mother’s boyfriend that she fell down. When Nicole’s mother arrived home
from work, she observed bruises on Nicole’s face and damage to Nicole’s mouth and teeth.
Nicole told her mother she had passed out after school. Nicole’s mother made an emergency
dental appointment for the next morning. Later that night, Nicole told her mother the truth
about her fall and the piercing. Nicole’s mother called Steffanie’s cell phone and asked to
speak to Defendant. Defendant did not come to the phone and did not return the phone call.

{9}      On May 21, Nicole’s mother took Nicole to a dentist in Alamogordo. The damage
to Nicole’s teeth was more extensive than anyone suspected. As of October 2011, Nicole
had received three root canals and four sets of temporary teeth and still needed additional
treatment. She received penicillin during the course of her treatment and discovered, for the
first time, that she was allergic to the drug. Because she missed so many days of school,
Nicole was forced to drop out and, at the time of the trial, was working to obtain her GED.
She testified her mouth was “always in pain.”

{10} Garcia was the only witness who testified about the risks of tongue piercing. He
testified as follows:

       Q:      Now, are there any risks involved?

       A:      Not really. It’s rare that . . . you hear a lot of . . . people . . . say that
               you’ll hit a vein. You won’t. Your veins run on the side of your
               tongue. In the rare occasion, every one in 100, one in 150, has that
               vein in the middle and you can’t do it.

       Q:      Okay. What about for infections and things of that nature? Is there
               a risk?


                                                3
       A:      We tell you how to take care of it . . . . If you don’t take care of it,
               it’s gonna get infected, like anything else.

       Q:      So, . . . so you’re saying, there is a risk?

       A:      Oh, yes, ma’am. There’s a risk with anything, with an ear piercing,
               a tattoo, . . . eyebrow piercing, a tongue piercing, all of it.

       Q:      Okay. Alright, so are there any other types of risk involved?

       A:      Just infection. Infection is the main risk.

He testified that in his approximately twenty years of doing piercings, he had never seen
someone faint from a piercing before Nicole.

{11} Defendant was charged by way of criminal information with three counts: (1)
abandonment of a child resulting in great bodily harm; (2) forgery; and (3) contributing to
the delinquency of a minor (CDM). The State filed a nolle prosequi on the forgery count
prior to trial. A jury trial was held on November 18, 2010. Defense counsel moved for a
directed verdict at the close of the State’s case. The district court denied the motion.
Defense counsel renewed the motion at the close of the evidence and the court again denied
the motion.

{12} The jury was instructed on child abuse with and without great bodily harm. To find
Defendant guilty of child abuse without great bodily harm, the State had to prove beyond a
reasonable doubt, inter alia:

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

       2.      [D]efendant acted with reckless disregard and without justification.
       To find that [Defendant] acted with reckless disregard, you must find that .
       . . [D]efendant 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 Nicole [.]

{13} The jury was instructed that, to find Defendant guilty of CDM, the State had to prove
beyond a reasonable doubt, inter alia:

       1.     [D]efendant took the child to have a piercing and signed the consent
       for the procedure without conferring with [Nicole’s] parent and/or . . .
       [D]efendant did not seek medical treatment for the child and/or notify
       [Nicole’s] parent of [Nicole’s] injuries.

                                              4
       2.      This caused and/or encouraged Nicole . . . to refuse to obey the
       reasonable and lawful commands or directions of her parent a person who
       had lawful authority over Nicole . . . [OR] conduct herself in a manner
       injurious to her morals and/or health and/or welfare of Nicole.

The jury found Defendant guilty of child abuse without great bodily harm and CDM.

DISCUSSION

{14} On appeal, Defendant challenges the sufficiency of the evidence to support her
conviction. “[O]ur review for sufficiency of the evidence is deferential to the jury’s
findings.” State v. Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057. We review
direct and circumstantial 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.” Id. (internal quotation marks and citation omitted). We must, however, scrutinize
“the evidence and supervision of the jury’s fact-finding function to ensure that, indeed, a
rational jury could have found beyond a reasonable doubt the essential facts required for a
conviction.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (internal
quotation marks and citation omitted).

A.     Child Abuse by Endangerment

{15} Defendant was convicted of child abuse by endangerment pursuant to NMSA 1978,
Section 30-6-1(D)(1) (2009), which defines the offense as “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[.]” “[T]he legislative purpose that
animates [this] statute [is] to punish conduct that creates a truly significant risk of serious
harm to children[,]” it “would be reserved for the most serious occurrences, not for minor
or theoretical dangers.” State v. Chavez, 2009-NMSC-035, ¶¶ 16, 22, 146 N.M. 434, 211
P.3d 891. Prior to Chavez, we reviewed convictions under this statute to determine whether
the State had proved the defendant’s conduct created a “reasonable probability or
possibility” of endangerment. Id. ¶¶ 16, 17 (internal quotation marks and citation omitted).
In Chavez, the Supreme Court rejected this test and held that, to support a conviction, the
state must prove the defendant’s conduct “created a substantial and foreseeable risk of
harm.” Id. ¶ 22 (emphasis, internal quotation marks, and citation omitted).

{16} Since Chavez, we have upheld a conviction for child abuse by endangerment where
a defendant, while intoxicated, drove a vehicle with his nine-year-old child as a passenger.
See State v. Orquiz, 2012-NMCA-080, ¶ 8, 284 P.3d 418, cert. granted, 2012-NMCERT-
___, ___ P.3d ___, (No. 33,677, Aug. 3, 2012). We have also upheld a conviction for child
abuse by endangerment where a reasonable jury could have found a defendant was aware
that her son was being abused by her boyfriend and continued to leave her son in the
boyfriend’s care, ultimately resulting in her son’s death by abuse. State v. Vasquez, 2010-
NMCA-041, ¶¶ 3, 21, 24, 148 N.M. 202, 232 P.3d 438.

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{17} Defendant contends the State failed to present any evidence that her conduct created
a substantial and foreseeable risk of harm to Nicole. The State argues that Defendant’s
conduct of signing the Release Form created a substantial and foreseeable risk of harm to
Nicole from the piercing itself and from the possibility of an infection. The State also argues
that Defendant’s lack of knowledge about the tongue piercing procedure and about Nicole’s
medical history, in particular her allergy to penicillin, created a substantial and foreseeable
risk of harm to Nicole.

{18} We consider the following factors in analyzing whether a defendant’s conduct
supports criminal liability for child abuse by endangerment: “(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.” State v. Gonzales, 2011-NMCA-081, ¶ 17, 150 N.M. 494,
263 P.3d 271, cert. granted, 2011-NMCERT-008, 268 P.3d 514. While the likelihood that
harm will occur is “no longer a determinative factor . . . it still remains an important
consideration when evaluating the magnitude of the risk.” Id. (internal quotation marks and
citation omitted).

{19} Defendant provided written consent for Nicole to receive a tongue piercing. The
State first argues the piercing itself constituted a substantial and foreseeable risk of harm
from Defendant’s conduct. While it was certainly foreseeable that Nicole would receive a
piercing based on Defendant’s act of signing the Release Form, we are not persuaded by the
evidence presented in this case that piercing is the type of most serious occurrence from
which our Legislature intended to protect children. In reaching this conclusion, we reject
the State’s argument that this case is analogous to the dangers identified in State v. Graham,
2005-NMSC-004, 137 N.M. 197, 109 P.3d 285.

{20} In Graham, our New Mexico Supreme Court held there was sufficient evidence to
support the defendant’s conviction for child abuse by endangerment where, during a lawful
search of a house in which two infants were present, police officers found a marijuana roach
on the living room floor and a marijuana bud in a crib. Id. ¶¶ 2, 15 (applying the less
stringent test utilized before the standard was changed in the Chavez decision). The Graham
Court explained: “Given the illegality of the [marijuana] and the Legislature’s determination
that the substance is particularly dangerous to minors, we believe it is within the jurors’
experience to decide whether the amount of accessible marijuana endangered the health of
[the young children].” Id. ¶ 12. Unlike marijuana, body piercing is not illegal. The State
directs us to Subsection (C)(7) of Regulation 16.36.5.11 of the Administrative Code, which
requires body art establishments to maintain written proof of the presence and consent of a
parent or legal guardian for procedures performed on clients who are minors. This suggests,
at most, that body piercing is an adult activity unless consent is provided. It does not suggest
that piercing, in and of itself, is illegal or presents a foreseeable risk of serious harm to
children. As such, Graham is inapposite and applied a standard for foreseeable
endangerment that is no longer utilized by our courts.

{21}   The State next argues that infection was a substantial and foreseeable risk of harm

                                               6
from Defendant’s conduct. While the State may have attempted to establish that infection
constituted a substantial risk, it failed to do so based upon the evidence presented in this
case. The only witness who testified regarding the risk of infection was Garcia, the owner
of the tattoo parlor. Garcia testified that “[i]nfection is the main risk” of tongue piercing but
he did not quantify the risk in any way and, in fact, seemed to minimize it. Even assuming
that the level of risk from post-piercing infection could be established with empirical or
scientific evidence, there was no such evidence here.

{22} The State also argues that Defendant’s conduct supports criminal liability because
Defendant lacked knowledge about tongue piercing and about Nicole’s medical history, in
particular, her allergy to penicillin. We are not persuaded. Defendant did not perform the
piercing; rather, she signed the consent form allowing Nicole to be pierced by Garcia.
Whether Defendant’s actions endangered Nicole’s life or health within the meaning of the
statute does not depend on Defendant’s knowledge of tongue piercing. The evidence
established that Garcia had sufficient knowledge and experience to perform this type of
piercing. As for the allergy, at the time Nicole received the piercing, neither Nicole nor her
mother knew that Nicole was allergic to penicillin. The child endangerment statute “evinces
a legislative intent to use the concept of criminal negligence . . . as the standard for negligent
child abuse.” State v. Schoonmaker, 2008-NMSC-010, ¶ 44, 143 N.M. 373, 176 P.3d 1105.
In order to be criminally negligent, a defendant need not be subjectively aware of a risk, but
the risk must be one of which “‘he should be aware.’” Id. ¶ 43 (emphasis omitted) (quoting
Model Penal Code § 2.02(c) (Official Draft and Revised Comments 1962)). “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.” Id. (emphasis omitted). No one could have foreseen that Nicole would have or
develop an allergy to penicillin, which would complicate her treatment. Defendant cannot
be convicted for child abuse for failing to perceive a risk to Nicole of which nobody was
aware.

{23} The State did not present sufficient evidence from which a jury could find that
Defendant’s conduct created a substantial and foreseeable risk of serious harm to Nicole.
As we explained in Gonzales, “it is the endangerment and not the resulting injury that
constitutes the offense[.]” 2011-NMCA-081, ¶ 20. Thus, to support liability, “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.” Id. There was no such foreseeability of serious
injury established in this case. Accordingly, we reverse Defendant’s conviction for child
abuse by endangerment.

B.      Contributing to the Delinquency of a Minor

{24} Defendant was also convicted of CDM pursuant to NMSA 1978, Section 30-6-3
(1990), which defines the offense as “committing any act or omitting the performance of any
duty, which act or omission causes or tends to cause or encourage the delinquency of any
person under the age of eighteen years.” Defendant contends there was insufficient evidence

                                                7
to show that she “cause[d] and/or encourage[d] Nicole to deceive her mother.” We disagree.

{25} In State v. Dietrich, we rejected the defendant’s argument that there was insufficient
evidence to support his conviction for CDM because the minor, an admitted heroin user,
never testified that the defendant encouraged him to use alcohol or drugs. 2009-NMCA-031,
¶¶ 56, 61, 145 N.M. 733, 204 P.3d 748. We held that the minor’s testimony that the
defendant “provided and purchased drugs and alcohol for [the minor] satisfies the element
of causing [the minor] to engage in underage drinking/drug use whether or not [the
d]efendant encouraged such use.” Id. ¶ 61 (alteration, internal quotation marks omitted).
Similarly here, the jury could find that Defendant’s act of transporting Nicole to the tattoo
parlor and signing the Release Form caused or encouraged Nicole to deceive her mother by
obtaining a piercing without permission even though Defendant did not actively encourage
the piercing.

{26} “The purpose of the CDM statute is to protect children from harmful adult conduct.”
State v. Barr, 1999-NMCA-081, ¶ 17, 127 N.M. 504, 984 P.2d 185 (internal quotation marks
and citation omitted); see also State v. Pitts, 103 N.M. 778, 780, 714 P.2d 582, 584 (1986)
(“[T]he intent of the Legislature in enacting Section 30-6-3 . . . was to extend the broadest
possible protection to children, who may be led astray in innumerable ways.”). Our New
Mexico Supreme Court has “consistently rejected narrow constructions of the statute that
would limit its usefulness in protecting children.” Pitts, 103 N.M. at 780, 714 P.2d at 584.
“We always have relied on juries to determine what acts constitute contributing to
delinquency in a particular case.” State v. Trevino, 116 N.M. 528, 531, 865 P.2d 1172, 1175
(1993).

{27} Even though Nicole told Defendant that her mother had given her permission for a
tongue piercing, it was for the jury to determine whether Defendant’s failure to confirm this
with Nicole’s mother or require Nicole’s mother to sign the Release Form was reasonable
under the circumstances. See State v. Romero, 2000-NMCA-029, ¶ 31, 128 N.M. 806, 999
P.2d 1038 (“[W]here the State seeks to convict a defendant of CDM for causing or
encouraging a minor to refuse to obey the reasonable and lawful command or direction of
the minor’s parent . . . the State must prove . . . that the defendant knew or by the exercise
of reasonable care should have known of such command or direction.”). The State
introduced sufficient evidence from which the jury could find that Defendant knew or should
have known that Nicole’s mother had not consented to the piercing. Defendant testified that
she believed Nicole had her mother’s permission because she had sufficient cash to pay for
the piercing, but it was for the jury to determine whether this was reasonable. Defendant did
not contact Nicole’s mother, or any other member of Nicole’s family, even after the accident.
The jury could have inferred from this conduct that Defendant knew she had acted without
permission. Accordingly, we conclude there was sufficient evidence to support Defendant’s
conviction for CDM.

CONCLUSION


                                              8
{28} We affirm Defendant’s conviction for contributing to the delinquency of a minor.
Because we conclude the evidence was insufficient to support Defendant’s conviction for
child abuse by endangerment, we reverse Defendant’s conviction on that count and remand
for further proceedings consistent with this Opinion.

{29}   IT IS SO ORDERED.

                                             ____________________________________
                                             TIMOTHY L. GARCIA, Judge

WE CONCUR:

____________________________________
MICHAEL D. BUSTAMANTE, Judge

____________________________________
MICHAEL E. VIGIL, Judge

Topic Index for State v. Webb, No. 31,577

APPEAL AND ERROR
Substantial or Sufficient Evidence

CRIMINAL LAW
Child Abuse and Neglect
Contributing to the Delinquency of a Minor




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