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                                                             New Mexico Compilation
                                                           Commission, Santa Fe, NM
                                                          '00'05- 15:14:42 2012.11.16
Certiorari Denied, December 21, 2011, No. 33,317

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-012

Filing Date: October 24, 2011

Docket No. 30,779

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

DARWIN ETSITTY,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Thomas J. Hynes, District Judge

Gary K. King, Attorney General
Santa Fe, NM
Ralph E. Trujillo, Assistant Attorney General
Albuquerque, NM

for Appellee

Liane E. Kerr
Albuquerque, NM

for Appellant

                                         OPINION

VANZI, Judge.

{1}     This case presents another twist on the question of when a defendant can be
successfully prosecuted for both driving while intoxicated (DWI) and child abuse by
endangerment. A jury found Defendant guilty of DWI by actual physical control and child
abuse by endangerment. Defendant does not challenge his DWI conviction. Instead, he
raises one issue on appeal, contending that the district court erred in denying his motion for

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directed verdict because there was insufficient evidence to support a conviction for child
abuse when that conviction was based upon a DWI that had not yet occurred. We agree with
Defendant and reverse his child abuse by endangerment conviction.

BACKGROUND

{2}     Defendant was charged with DWI, contrary to NMSA 1978, Section 66-8-102 (2008)
(amended 2010), and child abuse by endangerment, contrary to NMSA 1978, Section 30-6-
1(D)(1) (2009), in relation to an incident that occurred in January 2010. The State called two
witnesses at trial. Officers Eric Jennings and Joseph Schake testified that they were on duty
conducting a “warrant round-up” at a trailer park in Farmington, New Mexico, when they
saw Defendant’s pickup truck parked outside of a residence. Believing that Defendant may
have been the individual they were pursuing, the officers approached the truck and made
contact with Defendant, who was seated in the vehicle. The officers testified that they
observed Defendant seated in the driver’s seat of the truck, with his wife in the middle, and
his four-year-old child on the other end of the truck’s front bench seat. The vehicle was not
running, and Defendant was holding the keys in his hand. In the process of confirming that
Defendant was not the subject of the warrant, the officers observed that there were open
alcohol containers in the cup holders and on the floor of the vehicle. They testified that
Defendant had bloodshot and watery eyes, spoke with slurred speech, and smelled of
alcoholic beverages. Officer Jennings testified that Defendant informed him that he, his
wife, and his child had just stepped out of the house and that they were “loading up” the
vehicle and “leaving here” to go to a local store.

{3}     Based on his observations, Officer Jennings began a DWI investigation. He
administered field sobriety tests to Defendant and observed that Defendant was unable to
keep his balance and could not perform the tests as instructed. Based on Defendant’s
statements and the officers’ observations, Defendant was placed under arrest for suspicion
of DWI. Defendant was transported to the police station where he provided two breath
samples, both of which resulted in alcohol concentration readings of .15 grams per 210 liters
of breath.

{4}     The State rested after the two officers testified, and Defendant then moved for a
directed verdict on the child abuse charge. Defendant argued that no evidence had been
presented to support a child abuse conviction—the child had merely been sitting inside a
nonmoving vehicle. The district court denied the motion, and Defendant was convicted on
both the DWI and child abuse by endangerment charges. This appeal followed.

DISCUSSION

Standard of Review

{5}    Defendant challenges his conviction for child abuse by endangerment, arguing that
the misdemeanor DWI charge in this case does not support the conviction for felony child
abuse. He does not challenge his DWI conviction, and it is thus not a part of this appeal.



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The parties agree that the question of whether the underlying DWI misdemeanor supports
a finding of felony child abuse goes to the sufficiency of the evidence.

{6}      We begin our sufficiency of the evidence analysis by first reviewing the elements
required to prove child abuse by endangerment. To convict Defendant of child abuse by
endangerment, the State had the burden of proving beyond a reasonable doubt that
Defendant caused a child to be placed in a situation that endangered his life or health and did
so with reckless disregard for the safety of the child. See § 30-6-1(A)(3), (D)(1). Reckless
disregard requires that Defendant “knew or should have known [his] conduct created a
substantial and foreseeable risk, [he] disregarded that risk and [he] was wholly indifferent
to the consequences of the conduct and to the welfare and safety of [the child].” UJI 14-604
NMRA. We have said that child abuse by endangerment, as opposed to physical abuse of
a child, is a special classification designed to address situations where an accused’s conduct
exposes a child to a significant risk of harm, “even though the child does not suffer a
physical injury.” State v. Ungarten, 115 N.M. 607, 609, 856 P.2d 569, 571 (Ct. App. 1993),
abrogated on other grounds by State v. Chavez, 2009-NMSC-035, 146 N.M. 434, 211 P.3d
891.

{7}     Having set forth the statutory requirements of child abuse by endangerment, we apply
a substantial evidence standard to determine the sufficiency of the evidence at trial. State
v. Treadway, 2006-NMSC-008, ¶ 7, 139 N.M. 167, 130 P.3d 746. On a sufficiency of the
evidence challenge, the relevant question is whether, after reviewing the evidence in the light
most favorable to the prosecution, a rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. State v. Perea, 2001-NMSC-026, ¶ 5, 130
N.M. 732, 31 P.3d 1006. In performing this analysis, “we must view 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.” State v. Cunningham, 2000-NMSC-009,
¶ 26, 128 N.M. 711, 998 P.2d 176. “The reviewing court does not weigh the evidence or
substitute its judgment for that of the fact finder as long as there is sufficient evidence to
support the verdict.” State v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789,
abrogated on other grounds as recognized by Kersey v. Hatch, 2010-NMSC-020, 148 N.M.
381, 237 P.3d 683.

There Was Insufficient Evidence to Support a Conviction for Felony Child Abuse by
Endangerment

{8}     To date, every appellate case in New Mexico upholding a child endangerment
conviction has involved a situation where a defendant was actually driving while intoxicated
with a child in the vehicle. See, e.g., State v. Santillanes, 2001-NMSC-018, ¶¶ 2, 38, 130
N.M. 464, 27 P.3d 456 (upholding the defendant’s child abuse conviction when he drove
drunk and collided with an oncoming vehicle, resulting in the death of four children); State
v. Chavez, 2009-NMCA-089, ¶ 14, 146 N.M. 729, 214 P.3d 794 (holding that a defendant
who drove drunk with her six-year-old in the car was guilty of child endangerment); State
v. Watchman, 2005-NMCA-125, ¶¶ 4-5, 138 N.M. 488, 122 P.3d 855 (holding that 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); State v. Montoya,


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2005-NMCA-078, ¶¶ 2, 4, 137 N.M. 713, 114 P.3d 393 (concluding that evidence that the
defendant was drunk while driving with unrestrained children in his truck was sufficient to
prove child abuse). These cases clearly establish that a defendant who is driving while
intoxicated with a child in the vehicle can be charged and convicted of child abuse by
endangerment.

{9}      Difficulties arise, however, when an intoxicated defendant is not driving but rather
is in a nonmoving vehicle with a child present. Our Supreme Court recognized in Chavez
that, “[t]aken literally, our endangerment statute could be read broadly to permit prosecution
for any conduct, however remote the risk, that ‘may endanger a child’s life or health.’”
2009-NMSC-035, ¶ 16 (alteration omitted). The Court then clarified that “by classifying
child endangerment as a third-degree felony, our Legislature anticipated that criminal
prosecution would be reserved for the most serious occurrences, and not for minor or
theoretical dangers.” Id. In light of the Supreme Court’s more restrictive view of the child
abuse statute set forth in Chavez, this Court recently had the opportunity to discuss and
provide guidance on what constitutes a “theoretical danger” for purposes of a child abuse
charge in a DWI context. Specifically, we considered whether a conviction for child abuse
could be sustained when the intoxicated driver was in a nonmoving vehicle. We held that
it could not.

{10} In State v. Cotton, we reversed the defendant’s conviction for child abuse by
endangerment when the defendant was intoxicated while seated in the driver’s seat of his
vehicle with his girlfriend and four children. 2011-NMCA-096, ¶¶ 21-22, 150 N.M.583, 263
P.3d 925, cert. denied, 2011-NMCERT-008, 268 P.3d 513 (No. 33,163, Aug. 29, 2011). The
defendant’s vehicle was parked by the side of the road, it was not running, and the keys were
not in the ignition. Id. ¶ 21. Further, suspecting that the defendant and his girlfriend were
intoxicated, the officer questioned the defendant, who admitted that he had recently
consumed alcohol. Id. ¶ 1. Significantly, DWI by actual physical control was not charged
or argued in that case; however, the State’s child abuse claim relied on the theory that “the
possibility that [the d]efendant might drive” placed the children in a situation that
endangered their lives and health. Id. ¶ 16. We explained that, while “driving impaired with
children in the car could cause grave harm depending on the circumstances, the possibility
that [the d]efendant might drive is a theoretical danger—the exact type of danger our
Legislature did not intend to bring within the ambit of Section 30-6-1.” Cotton, 2011-
NMCA-096, ¶ 21. Accordingly, we held that the theoretical danger to the children posed
by the possibility of the defendant’s impaired driving was insufficient to support a child
abuse conviction. Id. ¶ 22.

{11} Cotton was not yet decided when the parties filed their briefs in this case and, as a
result, they could not have foreseen its applicability here. Nevertheless, the analysis and
holding in that case are relevant to our decision today. As in Cotton, the evidence in this
case for the child abuse by endangerment charge was the same evidence presented in relation
to the DWI charge. We briefly review the facts at the point in time when Defendant was
intercepted by the police. Defendant was sitting outside a residence in the driver’s seat of
a pickup truck, a female was in the middle seat, and a child was on the other end of the front
bench seat; Defendant appeared to be impaired; the keys were in his hand; he told the


                                              4
officers he was planning on going to a local store; he was arrested; and he never drove the
truck. This conduct supported Defendant’s conviction of DWI by actual physical control
(and he does not challenge that conviction). However, we conclude that it does not rise to
the level required by our child abuse statute. Clearly, had Defendant carried out his
intentions and begun to drive with his child in the car, or had there been evidence that
Defendant was driving while intoxicated prior to his contact with the police, he could have
been convicted of child abuse by endangerment. But without evidence of actual driving,
Defendant had not yet put the child in real peril.

{12} Although the defendant in Cotton was not charged with DWI by actual physical
control, we find no reason to depart from the rationale in that case merely because Defendant
here admitted that he intended to drive and was ultimately convicted of DWI by actual
physical control. DWI by actual physical control by its very nature relies on the possibility
of future conduct, and its departure from the typical requirement of criminal actus reus is
unique. In State v. Sims, our Supreme Court modified existing DWI by actual physical
control law, requiring two elements to secure a conviction: “(1) the defendant was actually,
not just potentially, exercising control over the vehicle, and (2) the defendant had the general
intent to drive so as to pose a real danger to himself, herself, or the public.” 2010-NMSC-
027, ¶ 4, 148 N.M. 330, 236 P.3d 642. Recognizing the consequence of the above
requirements, the Court then noted that the elements of DWI by actual physical control make
it “analytically similar to an attempt crime.” Id. ¶ 27; see NMSA 1978, § 30-28-1 (1963)
(requiring “an overt act in furtherance of and with intent to commit a felony and tending but
failing to effect its commission” to convict for an attempt to commit a felony); cf. State v.
Johnson, 2001-NMSC-001, ¶ 19, 130 N.M. 6, 15 P.3d 1233 (equating “actual physical
control” with being “in a situation in which [drivers] can directly commence operating a
vehicle while they are intoxicated”); Atkinson v. State, 627 A.2d 1019, 1025 (Md. 1993)
(noting that the view among many states is that the purpose of the “actual physical control”
language in DWI provisions is preventive, aimed to protect the public from what inebriated
individuals “might” do).

{13} If interpreted in an overly-broad manner, our Supreme Court’s analysis for DWI by
actual physical control set forth in Sims may cause unintended consequences if extended to
the child abuse context. Allowing actual physical control without requiring the act of
driving to operate as a basis for a child abuse by endangerment charge effectively turns the
child abuse charge into an attempted crime as well. In other words, Defendant here was
convicted of committing an overt act in furtherance of and with the intent to commit child
abuse, but at the point when Defendant was intercepted by the officers, the crime of child
abuse had not yet been completed. Allowing a conviction for child abuse to stand on these
facts would create liability for an inchoate crime where none was charged or otherwise
shown to have been intended by the Legislature.

{14} In State v. Roybal, we determined that mere proximity to a dangerous situation was
insufficient to support a conviction for child abuse by endangerment. 115 N.M. 27, 34, 846
P.2d 333, 340 (Ct. App. 1992). In Roybal, the defendant left his wife and child in a car
approximately ten or fifteen feet away while he bought heroin. Id. When police officers
arrived on the scene, one of the co-defendants resisted arrest. Id. Although the drug


                                               5
transaction could well have resulted in violence, we concluded that there was insufficient
evidence that the child “was in fact placed in danger.” Id. Likewise, in this case, while
Defendant’s actions prior to being intercepted by police could have resulted in Defendant
driving while intoxicated thereby placing his young passenger in danger, Defendant had not
yet “in fact placed [the child] in danger.” See id. While we appreciate the seriousness of the
potential danger to the minor child had Defendant driven the car, we hold that there was
insufficient evidence to convict Defendant of child abuse by endangerment under the facts
of this case.

CONCLUSION

{15}    For the foregoing reasons, Defendant’s child abuse conviction is reversed.

{16}    IT IS SO ORDERED.

                                               _____________________________________
                                               LINDA M. VANZI, Judge

WE CONCUR:

____________________________________
CYNTHIA A. FRY, Judge

____________________________________
J. MILES HANISEE, Judge

Topic Index for State v. Etsitty, No. 30,779

AE                     APPEAL AND ERROR
AE-SR                  Standard of Review
AE-SB                  Substantial or Sufficient Evidence

CL                     CRIMINAL LAW
CL-CN                  Child Abuse and Neglect
CL-DG                  Driving While Intoxicated

CA                     CRIMINAL PROCEDURE
CA-DV                  Directed Verdict




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