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


 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellant,

 4 v.                                                                            NO. 34,793

 5 NEIL FREEDMAN,

 6          Defendant-Appellee.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Christina P. Argyres, District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   Kenneth H. Stalter, Assistant Attorney General
12   Albuquerque, NM

13 for Appellant

14 Jorge A. Alvarado, Chief Appellate Defender
15 Santa Fe, NM

16 for Appellee

17                                 MEMORANDUM OPINION

18 KENNEDY, Judge.
 1   {1}   The State appeals the district court’s dismissal of criminal charges brought

 2 against Defendant. We issued a notice proposing to summarily affirm, and the State

 3 has filed a memorandum opposing such affirmance. We have carefully considered the

 4 arguments raised in the memorandum, but we continue to believe the district court’s

 5 decision was correct, as we discuss below.

 6   {2}   Defendant was charged with negligently causing or permitting his daughter to

 7 sexually abuse her own children, Defendant’s grandchildren, in violation of NMSA

 8 1978, Section 30-6-1(D) (2009). Defendant stipulated to a number of facts, including

 9 additional facts proposed by the State after Defendant filed his motion, and moved to

10 dismiss the charges under the authority of State v. Foulenfont, 1995-NMCA-028, ¶¶

11 5-6, 119 N.M. 788, 895 P.2d 1329 (holding that a pretrial motion to dismiss charges

12 may be made under Rule 5-601 NMRA on the basis of stipulated facts). The State did

13 not indicate that it believed it could discover additional facts beyond those that were

14 stipulated to, and the district court made its decision on the basis of those stipulated

15 facts. See id. ¶ 6 (noting that the State declined the district court’s invitation to

16 propose additional facts for inclusion in the record). The district court held that as a

17 matter of law the stipulated facts did not sufficiently allege a violation of Section 30-

18 6-1(D), and the State appeals that determination.

19   {3}   The stipulated facts are as follows: (1) Defendant is the grandfather of the two

20 child victims (Children); (2) prior to the events in question in this case, a court order

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 1 had granted supervised visitation with Children to Children’s mother (Mother), with

 2 the visitation to be supervised by Children’s maternal grandmother (Grandmother) or

 3 their paternal grandparents; (3) on the day of the alleged incident, Defendant

 4 transported Children from their residence to Grandmother’s house, so they could

 5 attend a birthday party being held at the residence; (4) Mother was also in attendance

 6 at the birthday party, and Grandmother was present; (5) Defendant thought he saw

 7 Mother take Children into a bathroom at some point during the party; (6) Mother

 8 allegedly sexually assaulted both Children in the bathroom; and (7) Mother had a

 9 violent criminal history of which Defendant should have been aware, including acts

10 of domestic violence against Grandmother as well as a four-year-old incident in which

11 she rammed her vehicle into a vehicle carrying both her boyfriend and Children. [DS

12 3; RP 83-86]

13   {4}   The standard to be applied to the above facts has recently been explained by our

14 Supreme Court as one of recklessness rather than mere negligence. State v. Consaul,

15 2014-NMSC-030, ¶¶ 37-40, 332 P.3d 850. The State must prove that Defendant acted

16 with “reckless disregard,” meaning that Defendant “consciously disregard[ed] a

17 substantial and unjustifiable risk of such a nature and degree that its disregard

18 involves a gross deviation from the standard of conduct that a law-abiding person

19 would observe in the actor’s situation.” Id. ¶ 37. In the notice of proposed summary

20 disposition we proposed to agree with the district court and to find that the stipulated

                                               3
 1 facts fall far short of the showing that would be required to meet the reckless-

 2 disregard standard.

 3   {5}   The State has responded to our notice with two main arguments. First, the State

 4 contends that the question of reckless disregard is based on the community’s moral

 5 and normative values and is not a pure question of law. In addition, the definition

 6 depends on what a law-abiding person would do in the actor’s situation, and is

 7 therefore “explicitly contextual.” [MIO 4] As such, argues the State, determinations

 8 of reckless disregard require the application of a jury’s common sense and common

 9 experience, as well as its consideration of community behavioral norms, and this case

10 should therefore have been allowed to go to trial. We agree with the State that in the

11 vast majority of cases, the issue of whether a defendant acted with reckless disregard

12 should be left to a jury. However, where the evidence in the case is so lacking that no

13 reasonable jury could find the existence of reckless disregard, the charge of negligent

14 child abuse must be dismissed. Cf., e.g., State v. Chavez, 2009-NMSC-035, ¶¶ 45-52,

15 146 N.M. 434, 211 P.3d 891 (reversing conviction for negligent child abuse due to

16 insufficient evidence that the situation presented a substantial risk of harm to the child

17 victim). Otherwise, the defendant will be subjected to the stress and hardship of trial

18 and a possible conviction, only to have an appellate court subsequently determine the

19 evidence was insufficient to meet the Consaul standard of reckless disregard. See

20 Consaul, 2014-NMSC-030, ¶ 49 (holding that evidence of causation was insufficient

                                               4
 1 to support the defendant’s conviction for negligent child abuse); Chavez, 2009-

 2 NMSC-035, ¶ 52 (holding that evidence of substantial risk of harm was insufficient

 3 to support conviction for same offense). We therefore do not accept the State’s

 4 premise, which is that as a matter of law all negligent child abuse cases must be

 5 submitted to a jury for a determination as to whether the reckless-disregard standard

 6 has been met.

 7   {6}   In addition to arguing that all questions of reckless disregard must be submitted

 8 to a jury, the State focuses on the stipulated facts in this case and contends they do

 9 raise a question of fact as to whether Defendant acted with reckless disregard. The

10 State takes issue with the district court’s statement, with which we proposed to agree:

11 “[h]ow could [Defendant] foresee that his daughter would sexually molest his

12 granddaughters in the bathroom?” [MIO 5] According to the State, this is not the

13 correct inquiry; instead, the stipulated facts must be viewed to determine whether

14 Defendant had a consciousness of a substantial and unjustifiable risk that Mother

15 would harm Children in any way. [MIO 6] The State then points out that Defendant

16 knew Mother had previously rammed her vehicle into another vehicle carrying

17 Children. The State also maintains that Defendant knew Children were not to be left

18 alone with Mother. [MIO 6]

19   {7}   For purposes of this opinion, we will accept the State’s contention that the

20 specific nature of the possible harm need not be foreseeable if the defendant is aware

                                               5
 1 of a substantial and unjustifiable risk that any type of harm could result from the

 2 situation. We disagree, however, with the State’s assertion that a reasonable jury could

 3 find Defendant consciously disregarded such a risk in this case. Although Defendant

 4 knew that four years ago Mother rammed a vehicle containing her boyfriend and

 5 Children, there was no evidence of any more recent violent incidents involving

 6 Mother and Children. In addition, the State’s argument that Defendant knew Children

 7 were never to be left alone with Mother is not supported by the citation the State

 8 provides to the record proper. Specifically, Mother’s visitation with Children was

 9 limited to supervised visitation, with the supervision to be provided by Grandmother

10 or Children’s paternal grandparents. [RP 84-85] There is no indication in the record

11 that this supervised visitation meant Mother could never be left alone with Children

12 even for a few minutes, and there is certainly no indication that Defendant knew about

13 such a restriction if it existed. As we pointed out in the notice of proposed disposition,

14 there is no evidence that on the day of the incident Mother was angry at Children, or

15 was acting strangely toward them or toward anyone else. There is also no evidence

16 that Defendant was aware of any untoward or dangerous incidents occurring in any

17 prior period of supervised visitation involving Mother and Children. We note that

18 subsequent to the four-year-old ramming incident, Mother was allowed supervised

19 visitation with Children, indicating an absence of serious concern for any imminent

20 threat of harm to Children that might arise from contact with Mother. Given the lack

                                               6
 1 of any indication of ill will or ill intent on the part of Mother toward Children other

 2 than one four-year-old incident, no reasonable jury could determine that when

 3 Defendant saw Mother take her own Children into the bathroom at a birthday party

 4 he “consciously disregard[ed]” a “substantial and unjustifiable risk” that Children

 5 would be harmed by Mother, or that his conduct constituted a “gross deviation from

 6 the standard of conduct that a law-abiding person would observe” in Defendant’s

 7 situation. Consaul, 2014-NMSC-030, ¶ 37. We therefore affirm the district court’s

 8 decision dismissing the indictment brought against Defendant.

 9   {8}   IT IS SO ORDERED.



10                                                _______________________________
11                                                RODERICK T. KENNEDY, Judge


12 WE CONCUR:



13 ___________________________________
14 MICHAEL E. VIGIL, Chief Judge



15 _________________________________
16 MICHAEL D. BUSTAMANTE, Judge




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