October 24, 2011 – State of New Mexico v. Darwin Etsitty, No. 30,779

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: October 24, 2011

NO. 30,779

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

DARWIN ETSITTY,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF SANJUAN COUNTY
Thomas J. Hynes, District J udge

Gary K. King, Attomey General

Santa Fe, NM

Ralph E. Trujillo, Assistant Attomey 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 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

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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

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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. 	The parties agree that the question 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

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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,

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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, 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.

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{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, ___
N.M.___, ___ P.3d ___, cert. denied, 2011-NMCERT-008, ___N.M. ___, ___ P.3d
___ (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,

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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

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be impaired; the keys were in his hand; he told the 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

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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 attempt 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

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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 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

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