June 5, 2019- State of New Mexico v. Loretta Villalobos, No. A-1-CA-36318

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE 'OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 v. 	No. A-1-CA-36318
5 LORETTA VILLALOBOS,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
8 James L. Sanchez, District Judge
.9 Hector H. Balderas, Attorney General
10 Maris Veidemanis, Assistant Attorney General
11 	Santa Fe, NM
12 for Appellee
13 	Bennett J. Baur, Chief Public Defender
14 Aja Oishi, Assistant Appellate Defender
15 	Santa Fe, NM
16 for Appellant
17 	MEMORANDUM OPINION
18 	B. ZAMORA, Judge.
19 {l} 	Defendant Loretta Villalobos appeals her convictions for negligent abuse of a
20 	child resulting 	in death 	( child abuse) 	and two 	counts 	of contributing to 	the
21 	delinquency 	of a 	minor (CDM). 	Defendant challenges the 	sufficiency 	of the
22 evidence supporting each conviction and contends that the jury instruction for the
Court of Appeals of New Mexico
Filed 6/5/2019 11:24 AM

1 child abuse charge resulted in fundamental error because it failed to instruct the jury
-2 	on recklessness. Because we agree that there was insufficient evidence to support
3 Defendant's 	child 	abuse 	conviction 	we 	need 	not 	address 	Defendant's 	claim
4 regarding the jury instruction. We affirm each of Defendant's CDM convictions.
5 BACKGROUND
6 	{2} 	This case stems from the tragic death of Alex (Victim), who was alleged to
7 have been murdered by Defendant's fifteen-year old son, Brandon. 1 Victim, age
8 twelve, lived with his mother in Albuquerque, but often spent time with his aunt in
9 Meadow Lake located in Valencia County. Victim's aunt lived less than two miles
10 away 	from 	Defendant's 	residence. 	Victim 	and Brandon. had 	been 	friends 	for
11 	approximately three.or four years. Brandon is intellectually disabled and, according
12 to Defendant, needed to be supervised.
13 	{3} 	On February 17, 2014, Victim was at Defendant's residence visiting with
14 Brandon where he intended to spend the night. The boys left the residence without
15 	supervision 	around 	6 	or 	7 	p.m. 	When 	later 	questioned 	by 	law 	enforcement,
16 Defendant told police in a recorded interview that, "[Victim and Brandon] said they
17 were going to be outside, but by the time I ·came out they were gone." Brandon later
1A granq jury indicted Brandon for murder and tampering with evidence. See
State v. Brandon V., D-1314-YR-2014-00002. As of the date of this opinion, his case
is still pending. However, during the trial in this case the parties did not appear to
dispute that Brandon was the individual who killed Victim.
2

1 came home without Victim, informing Defendant that "they were jumped" by three
2 male subjects. Defendant and Brandon walked around the neighborhood yelling for
3 Victim in an attempt to find him, but were unable to do so. Defendant returned home,
4 assuming that Victim had gone to his aunt's house.
5 {4} 	The following morning Victim's aunt arrived at Defendant's residence to pick
6 Victim up, but he was not there. Victim's aunt testified that Defendant told her
7 Victim wasn't there, that the night prior three men had chased and shot at them, and
8 Defendant offered to help aunt look for Victim. Instead, Victim's aunt called the
9 police.
10 	{5} 	Later that day, law enforcement, including Detectives David Zilink 2 and·
11 	Alejandro 	Lara, 	arrived 	at Defendant's residence. 	Both Detectives 	recounted
12 	statements made by Defendant while they were initially questioning her about where
13 	Victim and Brandon had gone the previous night. Those statements could be
14 construed as inconsistent with the statements that Defendant made a day later in a
15 	recorded interview. Detective Zilink testified that, upon arriving at her residence,
16 Defendant informed him that Victim and Brandon had gone out to an abandoned
17 home. In her initial statement to Detective Lara, Defendant told him that the boys
2Detective Zilink initially responded to the home of Victim's aunt, but then
proceeded to Defendant's residence.
3

I 	went out the previous night to walk around Meadow Lake and to vandalize and break
2 into abandoned homes.
3 	{6} 	Detective Zilink also testified that he spoke with Brandon and learned that a
4 tire iron had been used the night Victim was killed .. When Detective Zilink relayed
5 this information to Defendant, she responded tha~ the tire iron was underneath a pool
6 table and offered it to Detective Zilink if he wanted it. In response to later questions
7 from law enforcement regarding why Defendant was not supervising Brandon or
8 why she did not attempt to go after them after they initially left, she responded that
9 this was common behavior for the two boys and that Brandon "didn't want to listen
10 to us that night. He just took off." Police later discovered Victim's body under a
11 	mattress in an open dirt field approximately a half mile or a mile from Defendant's
12 residence.
13 	{7} 	Dr. Lori Proe, a forensic pathologist, performed the autopsy of Victim and
14 determined that Victim's cause of death was blunt trauma, which she described as
15 	"any sort of injury that occurs when the body is impacted by a blunt object or impacts
16 a blunt object[.]" Dr. Proe testified that a tire iron could have inflicted the injuries
17 Victim 	sustained. 	Victim 	sustained 	numerous 	internal 	and 	external 	injuries;
18 	including bleeding in the scalp, the skull and around the brain, as well as multiple
19 skull fractures. Dr. Proe could not determine if any single injury was instantly fatal.
20 Although it was possible medical intervention could have saved Victim, Dr. Proe
4

. 	.
1 was unable to determine how long Victim lived after he sustained the injuries. She
2 testified that Victim could have survived a few minutes or several hours. Ultimately,
3 Dr. Proe concluded that the manner of Victim's death was homicide.
4 {8} 	A grand jury indicted Defendant on child abuse recklessly permitted resulting
5 in death, contrary to NMSA 1978, § 30-6-1 (2009), and two counts of contributing
6 to 	the 	delinquency 	of a 	minor, 	contrary 	to 	NMSA 	1978, 	§ 	30-6-3 	(1990).
7 Subsequently, a jury convicted Defendant of all counts. Defendant appealed.
8 DISCUSSION
Standard of Review	9 I.
10 {9} 	In reviewing the sufficiency of the evidence this Court will "view the evidence
11 	in the light most favorable to the guilty verdict, indulging all reasonable inferences
12 	and resolving 	all 	conflicts in the 	evidence 	in 	favor 	of the 	verdict." 	State 	v.
13 	Cunningham, 2000-NMSC-009, ,r 26, 128 N.M. 711, 998 P.2d 176. "The test for
14 sufficiency of the evidence is whether substantial evidence of either a direct or
15 	circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt
16 with respect to every element essential to a conviction." State v. Montoya,, 2015-
17 NMSC-010, ,r 52, 345 P.3d 1056 (internal quotation marks and citation omitted).
18 "Substantial evidence is relevant evidence that a 1~easonable mind might ac~ept as
19 	adequate to support a conclusion." State v. Rojo, 1999-NMSC-001, ,r 19, 126 N.M.
20 	43 8, 971 P .2d 829. We "indulge all reasonable inferences in support of the verdict,
5

1 and disregard all evidence and inferences" that -support a different result. ·1d.
2 "Contrary evidence supporting acquittal does not provide a basis for reversal[.]" Id.
3 The jury instructions given by the district court "become the law of the case against
4 which the sufficiency of the evidence is to be measured." State v. Schackow, 2006-
5 NMCA-123, 18, 140 N.M. 506, 143 PJd 745.
6 II. 	There was Insufficient Evidence to Convict Defendant of Child Abuse
7 	{to} 	Defendant 	challenges 	the 	sufficiency 	of 	the 	evidence 	supporting 	her
8 conviction for child abuse. In New Mexico, child abuse by endangerment is defined
9 as "negligently, and without justifiable cause, causing or permitting a child to be ..
10 	. placed in a situation that may endanger the child's life or health[.]" Section 30-6-
11 	l(D)(l). Although Defendant was charged with child abuse based on negllgence,
12 Defendant's conduct must have been more than merely negligent or careless. UJI
13 	14-621 	NMRA. 	Instead, 	Defendant 	must 	have 	permitted ·"a 	substantial 	and
14 justifiable risk of serious harm to the safety or health of [Victim]." Id. "A substantial
15 	and unjustifiable risk is one that any law-abiding person would recognize under
16 	similar circumstances and that would cause any law-abiding person to behave
17 differently than [Defendant] out of concern for the safety or health of [Victim.]" Id.
18 	For Defendant to be criminally liable for child abuse by endangerment, sh~ must
19 have been aware of a particular danger to Victim when engaging in the conduct that
20 created the risk of harm. State v. Gonzales, 2011-NMCA-081, 11, 150 N.M. 494,
6

1 263 P.3d 271, aff'd on other grounds, 2013-NMSC-016,, 3,301 P.3d 380; see§ 30-
2 6-l(A)(3) (stating "negligently" means "that a person knew or should have known
3 	of the danger involved and acted with a reckless disregard for the safety or health of
4 the child.").
5 {11} 	On appeal, Defendant makes two arguments. First, Defendant argues that the
6 State did not present any evidence that Defendant could have foreseen that Brandon
7 would kill Victim. Next, she contends she did not cause Victim's death when she
8 failed to check on him after he was injured. The State does not argue the evidence is
9 sufficient to support Defendant's conviction and instead states "[w]e leave it to the
10 	[appellate] 	Court _to 	determine whether Defendant's 	conviction 	for 	recklessly
11 	permitting child abuse by endangerment is supported by sufficient evidence." We
12 	address each of Defendant's arguments in tum.
13 	A. 	Foreseeability
14 	{12} 	y,le first analyze whether, viewing the evidence in the light most favorable to
15 	the 	guilty 	verdict, 	Defendant 	"knew 	or 	should 	have 	known 	of the 	danger
16 	involved"-whether Victim's murder was foreseeable. Section 30-6-l(A)(3). The
17 evidence presented by the State of a foreseeable risk to Victim was that Brandon,
18 Defendant's intellectually disabled son, had a history of vandalizing abandoned
19 homes, was frequently truant from school, and would become angry and yell. In
20 addition, Defendant also admitted to knowledge of two prior instances of aggression.
7

1 About a year prior to Victim's death, Brandon had a physical altercation with his
2 father and he had an outburst several days prior to Victim's death. During the
3 outburst, Brandon threw a television 3 and a kitchen chair. Law enforcement was
4 dispatched to Defendant's home, but chose not to arrest Brandon, despite Defendant
5 admitting "her son was out of control and had thrown some things," and that it was
6 "an ongoing incident with him."
7 	{13} 	The record is devoid of any evidence that Brandon had violent tendencies
8 towards ·victim or that he had ever used a weapon to harm another person. There
9 was also no evidence that Defendant saw either Brandon or Victim take the tire iron
10 with them on the evening ofFebruary 17, 2014, orthatthey were angry at each other.
11 	Rather, the evidence showed that for years they had been friends. Indeed, the State
12 presented no evidence that Defendant knew Brandon had violent proclivities and
13 	placed Victim in danger when she allowed the two to leave unsupervised. See State
14 v. Vasquez, 2010-NMCA-041, 1120-21, 148 N.M. 202,232 P.3d 438 (holding that
15 	that the defendant created a substantial and foreseeable ·risk of death or great bodily
16 	injury to her fifteen-month-old baby when she was aware 	of previous abuse
17 perpetrated by the baby's father, but continued to leave the baby in his care). Instead,
18 	Defendant stated to Detective Lara that Brandon was "fine with other people" and
3 Testimony by the deputy who had responded to the incident indicated that
Brandon had thrown a television. Defendant alternatively stated to Detective Lara
that Brandon had "punched a TV" because "he wasn't on his meds."
8

1 not violent towards his family members. The evidence the State presented at trial
2 fails to establish that there was a foreseeable risk to Victim when he left Defendant's
3 home with Brandon, his long-time neighborhood friend.
4 B. 	· Causation
5 {14} 	The State alternatively argued below that Defendant caused Victim's death
6 when she failed to render aid to Victim. The State maintained that had Defendant
7 .immediately taken steps to locate Victim, he might have received medical treatment
8 and his death might have been prevented. "Under a theory of medical neglect that
9 results in death or great bodily harm, the State must prove more than just the neglect
10 itself." State v. Nichols, 2016-NMSC-001, ,r 40, 363 P.3d 1187. Instead, the State
11 	had the burden of proving, with medical evidence, that if Victim had obtained
12 medical care earlier, he "would have lived or at least would have had a significantly
13 	greater chance of living[.]" Id. Without proof of causation, the charge of child abuse
14 resulting in death or great bodily harm fails for lack of evidence. Id., 39; State v.
15 	Consaul, 2014-NMSC-030, ,r 43,332 P.3d 850 (indicating that the state had to prove
16 that the act of swaddling a baby tightly in a blanket and placing him face down on a
17 pillow "actually caused the great bodily harm" that the baby suffered).
18 	{15} 	Here, after hearing Brandon's claim that Brandon and Victim were "j:umped
19 by three men," Defendant failed to verify Victim was safe-she failed to find Victim,
20 failed to contact Victim's aunt, and failed to call police. However, to convict
9

1 Defendant, the State had to prove that these failures to act actually.caused Victim's
2 death. While Defendant's behavior might be described as irresponsible, the nexus
3 between Defendant's conduct and Victim's death is lacking.
4 	{16} 	Dr. Proe could not opine on an estimated time between the blunt trauma to
5 Victim and his death. Dr. Proe could not state whether the death happened in "five
6 minutes or five hours." Moreover, the record was silent as to when Brandon returned
. 	'
7 home and when or for how long he and Defendant went looking for Victim. There
8 is no timeline that would allow the jury to find that had Defendant located Victim,
9 medical intervention would have saved his life. The State failed to prove that if
10 Defendant had obtained medical care earlier, Victim "would have lived or at least
11 	would have had a significantly greater chance ofliving." Nichols, 2016-NMSC-001,
12 1 40. Hence, the jury was left to speculate that if Defendant had more reasonably
13 	responded to Brandon's report of being attacked, then Victim could have been
14 .located prior to his death and doctors would have had the time and ability to treat
15 	him successfully. See id. 1143-44. However, "a suggestion that 'maybe' or 'perhaps'
16 	something would or would not have happened, even if based on evidence, is not
17 probative of anything." Id. 1 45. Thus, the State failed to put forth· substantial
18 	evidence that Defendant's conduct resulted in Victim's death. See Consaul, 2014-
19 NMSC-030, 	1 49 .("Without any proof of causation, the 	charge 	of criminal
10

1 negligence (or now criminal recklessness) completely fails for lack of substantial
2 evidence[.]").
3 	{17} 	Indisputably, Victim suffered a tragic death and we fully recognize the
. 	.
4 "compelling public interest in protecting defenseless children." State v. Ramirez,
5 2016-NMCA-072, 1 27, 387 P3d 266 (internal quotation marks and citation. 	.
6 omitted} However, a conviction cannot stand "where evidence must be buttressed
7 by. surmise. and conjecture, rather than logical inference." State v. 	Leal, 	1986-
8 NMCA-075, 117, 104 N.M. 506, 723 P.2d 977. We hold that there was insufficient
9 evidence to convict Defendant for child abuse.
10 Ill. 	Substantial Evidence Supports Defendant's Convictions for CDM
11 	{18} 	Defendant next challenges the sufficiency of the evidence for both her CDM
12 convictions arguing that the State failed to present evidence that Defendant had
13 	knowledge that, on the date Victim was killed, Victim and Brandon left her house
14 "with the 	intent to 	vandalize 	property." 	Relying 	on 	her recorded 	interview,
15 	Defendant contends that the interview only proves that she was aware of a prior
16 	incident in which Victim and Brandon vandalized an abandoned home. The State
17 argues that evidence aside from Defendant's recorded interview established that
18 	Defendant knew Brandon and Victim left her house to vandalize homes on the night
19 	of the murder. We agree with the State.
11

1 {19} 	"Contributing 	to 	the 	delinquency 	of 	a 	mmor 	consists 	of 	any 	person
2 committing any act or omitting the pe1formance of any duty, which act or omission
3 causes or tends to cause or encourage the delinquency of any person under the age
4 	of eighteen years." NMSA 1978, § 30-6-3 (1990) (emphasis added). "In order to
5 prove the offense of CDM, in violation of Section 30-6-3, the [s]tate does not need
6 to prove that [the d]efendant's acts had any particular effect on the victim; it is
7 enough that his acts encourage the child to engage in delinquent behavior." State v.
8 Lucero, 1994-NMCA-129, i-f 9, 118 N.M. 696,884 P.2d 1175. The State had to prove
9 beyond a reasonable doubt that: (1) "[D]efendant aUowed [Victim and/or Brandon]
10 to leave with the intent to vandalize property"; (2) "[t]his encouraged [Victim and/or
11 	Brandon] to commit the offense of criminal damage to property o[r] to conduct
12 themselves in a manner injurious to their morals, health or welfare"; and (3) "[Victim
13 	and/or Brandon were] under the age of 18." UJI 14-601 NMRA. Only the first two
14 elements appear to be disputed.
15 	{20} 	The State presented evidence that Defendant knew Victim and Brandon left
16 her home on the evening ofFebruary 17, 2014, to vandalize or break into abandoned
17 homes. Detective Lara spoke with Defendant at her residence on Feb1uary 18, 2014,
18 	and again the following day for a second interview outside Defendant's res~dence.
19 	Defendant's first statement to Detective Lara at her residence on February 18-, 2014,
20 was unequivocal. Defendant stated Victim and Brandon had left her custody on that
12

1 evening to vandalize and break into abandoned homes, which is established by the
2 following exchange between Detective Lara and the prosecutor at trial:
3 	Prosecutor: Okay. Were you given any information by [Defendant]
4 	about where the boys had gone?
5 	Detective Lara: Yes. She said that they went out walking around
6 	Meadow Lake out to the Meadow Lake Commuriity Center. She said
7 	that they went out vandalizing abandoned homes and breaking into
8 	homes.
9 	Prosecutor: And did she give you any indication if she was aware that
10 	that's why they had gone out that night?
11 	Detective Lara: Yes, she was completely aware. She said this isn't the
12 	first time they have done this. She is aware of this behavior from them.
13 	{21} 	Consequently, it was immaterial what Defendant said in the subsequent
14 recorded interview because the jury could have inferred the requisite knowledge
15 	based on Defendant's initial statement to Detective Lara. See Montoya, 	2015-
16 NMSC-010,, 52 ("Contrary evidence supporting acquittal does not provide a basis
17 for reversal because the jury is free to reject [the d]efendant's version of the facts."
18 	(internal quotation marks and citation omitted)).
19 	{22} 	Thus, 	we 	conclude 	that 	there 	is 	substantial 	evidence 	to 	support 	both
20 convictions, one for Victim and one for Brandon, because "[t]he language of the
21 	[CDM] statute·appears to evince an intent to punish each act affecting each minor."
22 State v. Barr, 1999-NMCA-081, il 17, 127 N.M. 504,984 P.2d 185.
13

1 CONCLUSION
2 	{23} 	For the aforementioned reasons, we reverse Defendant's conviction for child
3 abuse and affirm her convictions for CDM.
4 	{24} 	IT IS SO ORDERED.
5
6
7 WE CONCUR:
14