October 07, 2013 – State v. Samantha Garcia, No. 31,429

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: October ’7, 2013
NO. 31,429
STATE OF NEW MEXICO,
Plaintiff-A ppellee,
V.
SAMANTHA GARCIA,
Defendant: A ppellant.
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Teddy L. Hartley, District Judge

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

Albuquerque, NM

for Appellee

Bennett]. 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 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.

2
{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

3
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 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

4
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

5
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] 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

6
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,

7
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.
{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

8
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,

9
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

10
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.”).
{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

11
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.

12
______________________________
TIMOTHY L. GARCIA, Judge
JONATHAN B. SUTIN, Judge, (specially concurring)
MICHAEL E. VIGIL, Judge, (dissenting)

13
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

14
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

1 As can many prescribed medications, including “medical marijuana,” if
carelessly left within a child’s reach.
15
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 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,

16
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

17
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 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

18
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

19
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 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

20
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

21
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

22
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

23
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

24
the presence of smoke. There was also an open pocket knife on a table in Defendant’s
bedroom, which was also in reach 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.

25
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

26
of such easily accessible 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

27
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 supported a conclusion
that had she noticed that her child was missing, or had Child been harmed and cried

28
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

29
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

30
the district 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

31
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,

32
we are required to view 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

33
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