May 19, 2011 – State of New Mexico v. Alicia Victoria Gonzales, No. 28,700

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: May 19, 2011

NO. 28,700

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

ALICIA VICTORIA GONZALES,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Neil C. Candelaria, District Judge

Gary K. King, Attomey General

Anita Carlson, Assistant Attomey General
Santa Fe, NM

for Appellee

Jane B. Yohalem
Santa Fe, NM

for Appellant

OPINION
KENNEDY, Judge.
{1} 	This case raises an issue of first impression as to whether a case that might
otherwise be regarded as vehicular manslaughter is punishable under our child abuse
statute simply because the person killed or injured by Defendant’s criminal negligence
was a child. 	Here, we distinguish between criminal negligence that endangers the
public at large and results in injury or death to a member of the public, who happens
to be a child, and criminally negligent conduct that creates a discernable risk of danger
to a particular child or particular children. We hold that a discernable risk of danger
to a particular child or particular children is required to support a conviction for
negligent child abuse by endangerment under NMSA 1978, Section 30-6-1(D)(1)
(2004) (amended 2009). We further hold that for a defendant to be criminally liable
for child abuse by endangerment, he or she must be aware of a particular danger to the
identifiable child or children when engaging in the conduct that creates the risk of
harm.
{2} 	In this case, Defendant contends that the district court erred in failing to grant
her motion for dismissal and her motion for directed verdict on the child abuse by
endangerment charges on the basis that she was unaware that her conduct posed a
particular and foreseeable risk of likely injury to the children injured by her actions.

1Defendant was alternatively indicted for intentional and negligent child
abuse in each count. She was convicted of negligent child abuse.
2
The district court similarly denied Defendant’s proposed jury instructions requiring
child abuse by endangerment to include an element of awareness. We conclude that
the district court erred. 	Accordingly, we reverse Defendant’s convictions for
negligent child abuse by endangerment, as she was not proven to be aware of the
danger to the particular children who were the victims of her drunk driving.
{3} 	Defendant argues that the State is barred from retrying her for vehicular
homicide and intentional child abuse. We agree and hold that double jeopardy bars
retrial of Defendant for vehicular homicide. 	We remand for vacation of the child
abuse convictions and discharge of Defendant and the amendment of the judgment
and sentence to reflect those charges on which Defendant’s convictions remain
unaffected by this Opinion.
I. 	BACKGROUND
{4} 	Defendant drove on the interstate while severely drunk, sideswiped one car, and
ploughed into the rear of another car, in which two minors, Manuel and Deandre, were
riding in the back seat. Manuel was pronounced dead at the scene; Deandre received
minor injuries. 	As a result, the grand jury indicted Defendant for two counts of
negligent child abuse by endangerment, including one count of endangerment
resulting in death.1 Defendant was also charged and convicted of aggravated driving

3
while intoxicated and leaving the scene of an accident. Defendant does not contest
those convictions, and they are not a part of this appeal.
{5} 	Prior to trial, Defendant filed a motion to dismiss the charges of child abuse,
arguing that child abuse cannot be charged when the children injured were “not in the
vehicle of the accused and the accused [was] not aware of their presence on the
roadway.” (Emphasis omitted.) Defendant argued that the State sought to criminalize
as child abuse any negligent behavior undertaken on the road when a child might be
present in another car without consideration of whether Defendant’s conduct
specifically put a child at risk. The State did not disagree with this characterization,
stating that any conduct undertaken in reckless disregard of the “welfare and safety
of everyone on the road” was sufficient to prove child abuse. The State stated:
Criminal negligence does not require a showing that [D]efendant
had specific knowledge of her victims. 	It only requires a reckless
disregard of the danger that she is putting her potential victims in. . . .
It was foreseeable that her conduct could endanger the lives of not only
adults, but also children. 	Children are a part of the general public, a
more vulnerable part.
{6} 	During the hearing on the motion to dismiss, the district court inquired of the
State why child abuse had not been charged in the alternative with vehicular homicide.
Counsel for the State initially did not know, but later stated that its decision to charge
Defendant only with child abuse and not vehicular homicide was intentionally

4
undertaken as an exercise of its discretion. 	The State thus did not pursue vehicular
homicide charges at any time.
{7} 	Following extensive argument by the parties, the district court held as a matter
of law that “the current statute as it stands under child abuse does not necessitate or
need an awareness factor . . . all that’s required as far as knowledge is that the
defendant knows or should have known that the defendant’s conduct created the
substantial or foreseeable risk.” 	The district court further stated its opinion that a
“person [can] cause [a child to be placed] or place a child . . . in a dangerous situation,
life or health, . . . and not be aware of it.” 	The district court denied Defendant’s
motion, and the case proceeded to trial, resulting in Defendant’s convictions and her
appeal. The issue continued to be raised by Defendant throughout the trial, including
a motion for directed verdict, with identical results.
II. 	STANDARD OF REVIEW
{8} 	We review the interpretation of a statute in the context of a motion to dismiss
de novo with the primary goal of ascertaining and giving effect to the intent of the
Legislature. 	State v. Smith, 2004-NMSC-032, ¶ 8, 136 N.M. 372, 98 P.3d 1022.
Criminal statutes are to be strictly construed. We take care that criminal statutes are
not 	applied 	beyond 	their 	intended 	scope 	and 	are 	“defined 	with 	appropriate
definiteness.” State v. Chavez, 2009-NMSC-035, ¶ 10, 146 N.M. 434, 211 P.3d 891

5
(internal quotation marks and citation omitted); see Smith, 2004-NMSC-032, ¶ 8
(applying a de novo standard of review to determine whether conduct exists within the
intended scope of the child endangerment statute).
{9} 	Double jeopardy arguments cannot be waived. 	A defendant may raise such
arguments at any time. NMSA 1978, § 30-1-10 (1963); see State v. Jimenez, 2007-
NMCA-005, ¶ 11, 141 N.M. 106, 151 P.3d 67; State v. Vaughn, 2005-NMCA-076,
¶ 8, 137 N.M. 674, 114 P.3d 354. When such arguments arise on appeal, we apply a
de novo standard of review. Jimenez, 2007-NMCA-005, ¶ 11.
III. 	DISCUSSION
A. 	The Current Landscape of Child Abuse By Endangerment
{10} 	Until now, every child abuse by endangerment case in New Mexico pertaining
to a defendant’s operation of a motor vehicle while intoxicated involved the
defendant’s knowledge or placement of the children in the vehicle prior to the conduct
that constituted the endangerment. See, e.g., State v. Chavez, 2009-NMCA-089, ¶ 14,
146 N.M. 729, 214 P.3d 794 (holding that a defendant who drove drunk with a child
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 the defendant was guilty of child
abuse when she drove drunk to a bar with her child and left the child unattended in a
dangerous parking lot); State v. Montoya, 2005-NMCA-078, ¶¶ 2, 4, 137 N.M. 713,

6
114 P.3d 393 (holding that the defendant’s drunk driving with unrestrained children
in 	his 	truck 	was 	sufficient 	to 	prove 	child 	abuse); 	State 	v. 	Santillanes,
2001-NMSC-018, ¶¶ 2, 38, 130 N.M. 464, 27 P.3d 456 (affirming the defendant’s
child abuse conviction when the defendant’s drunk driving resulted in the death of the
four children in his vehicle); State v. Castañeda, 2001-NMCA-052, ¶¶ 19-22, 130
N.M. 679, 30 P.3d 368 (affirming the defendant’s child abuse conviction when the
evidence showed that the defendant drove on the wrong side of a divided highway
with children in her vehicle who were not in safety seats).
{11} 	Similarly, in State v. Lujan, the defendant was convicted of child abuse when
he attacked another car with his own vehicle with prior knowledge that the victim’s
car was transporting a child. 103 N.M. 667, 669-70, 712 P.2d 13, 15-16 (Ct. App.
1985). His awareness of the child’s presence within the car prior to his attack was
dispositive. 	Id. 	In each of the above cases, the child was within the circumstantial
ambit of foreseeable risk and likely injury created by the defendant. The defendant’s
behavior was directed toward the child, and the defendant was or should have been
aware of the risk to the child of whose presence he or she knew of at the time.
{12} 	We have further interpreted Section 30-6-1(D) “to address situations where an
accused’s conduct exposes a child to a significant risk of harm,” irrespective of
whether the child was actually injured. Chavez, 2009-NMSC-035, ¶ 15. Nonetheless,

2The crime of negligent abuse of a child by endangerment under Section 30-
6-1(D)(1) is predicated on the same elements regardless of the consequence to the
child, which only influences the degree of punishment for the offense. Thus, we
apply the same analysis to both counts of negligent child abuse of which Defendant
stands convicted.
7
there has been no appellate case in New Mexico for endangering a child whose
presence was not previously known to the defendant at the time the negligent and
dangerous behavior was commenced. 	Because our appellate courts have not
previously determined whether the Legislature intended the child endangerment
statute to encompass conduct similar to that in the present case, we turn to the
language of the statute for guidance.
B. 	Criminal Negligence
{13} 	According to our rules of statutory construction, the statute’s plain language
“is the primary indicator of legislative intent.” 	High Ridge Hinkle Joint Venture v.
City of Albuquerque, 1998-NMSC-050, ¶ 5, 126 N.M. 413, 970 P.2d 599 (internal
quotation marks and citation omitted). 	In addition, we are to apply the ordinary
meaning of the words in the statute unless the Legislature indicated otherwise. 	Id.
We now apply these rules in interpreting the meaning of Section 30-6-1(D)(1).
{14} 	Section 30-6-1(D)(1) criminalizes abuse of a child by endangerment,2 stating,
“[a]buse of a child consists of a person knowingly, intentionally or negligently, and
without justifiable cause, causing or permitting a child to be . . . placed in a situation

8
that may endanger the child’s life or health[.]” At issue is whether this statute can be
construed to apply in situations where a defendant neither knows of the presence of
the child endangered by his or her driving, nor specifically endangers that child any
more than his or her actions may endanger the general public. 	Thus, we must
determine the Legislature’s intent when it required a defendant to, at minimum,
“negligently” cause or permit the child to be placed in a situation that endangered the
child’s life.
{15} 	In Santillanes v. State, our Supreme Court held that in convicting a defendant
of criminally negligent child abuse, the state must prove negligence to a criminal,
rather than civil, standard. 115 N.M. 215, 223, 849 P.2d 358, 366 (1993). The Court
specifically rejected the idea rooted in a civil negligence standard that child abuse
“encompassed any and all harm to a child[.]” 	Id. at 219, 849 P.2d 362. 	“What
distinguishes civil negligence from criminal negligence is not whether the person is
subjectively aware of a risk of harm; rather, it is the magnitude of the risk itself.”
State v. Schoonmaker, 2008-NMSC-010, ¶ 43, 143 N.M. 373, 176 P.3d 1105. In the
context of child abuse, criminal negligence is defined as something beyond mere civil
negligence or accidental conduct because it requires 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.” Garcia v. State, 2010-NMSC-023, ¶ 33, 148 N.M. 414, 237

9
P.3d 716 (internal quotation marks and citation omitted). 	In Schoonmaker, our
Supreme Court indicated that the “magnitude of the risk” could act as a way to infer
a person’s subjective knowledge of the risk posed to a child and its likely
consequences. 2008-NMSC-010, ¶¶ 43-45. Schoonmaker pointed out that a person
could act with the requisite knowledge should the person violently and intentionally
shake a child without a subjective knowledge of the risk of harm or indifference to the
risk of that behavior, simply because the magnitude of the risk to the child is so high.
Id. ¶ 48.
{16} 	We have held that the child abuse by endangerment statute was “intended to
address conduct with potentially serious consequences to the life or health of a child.”
State v. Trujillo, 2002-NMCA-100, ¶ 21, 132 N.M. 649, 53 P.3d 909. This standard
was not intended by the Legislature to render conduct that creates “a mere possibility,
however remote, that harm may result to a child” the basis for criminal liability. State
v. Trossman, 2009-NMSC-034, ¶ 20, 146 N.M. 462, 212 P.3d 350 (internal quotation
marks and citation omitted). 	In Trujillo, we stated that for the purposes of child
endangerment, the behavior “that may cause harm,” must place a child “directly in the
line of physical danger.” 	There, we reaffirmed that “that mere proximity to a
dangerous situation was insufficient to support a conviction for child abuse by
endangerment.” 2002-NMCA-100, ¶¶ 17-18 (internal quotation marks and citations

10
omitted). By casting a net to include the endangerment of the general public of which
children are a part, the State’s argument ignores that the statute only criminalizes
endangering children.
{17} 	Our Supreme Court in Chavez provided factors to consider in determining
whether there was a substantial and foreseeable risk of harm to the child, so as to
authorize a charge of criminal child abuse by endangerment. Under Chavez, a court
should consider (1) the gravity of the risk created by the defendant, (2) whether the
underlying conduct violates a statute, and (3) the likelihood of harm to the child.
2009-NMSC-035, ¶¶ 23-25. Moreover, “[i]t is the gravity of the risk that serves to
place an individual on notice that his conduct is perilous, and potentially criminal[.]”
Id. ¶ 23. Although our Supreme Court stated the likelihood that the harm will occur
is no longer a determinative factor in the criminal negligence analysis, it still “remains
an important consideration when evaluating the magnitude of the risk.” Id. ¶ 26. This
is particularly pertinent to endangerment cases “where the risk of harm is too remote,
which may indicate that the harm was not foreseeable.” Id.
{18} 	Concerned with the breadth of conduct potentially ensnared by the phrase “may
endanger,” our Supreme Court in Chavez limited criminal liability under Section 30-6-
1(D)(1) by excluding liability for risks posed by conduct directed at a child that only
theoretically endangered the life or health of a child. 	Chavez, 2009-NMSC-035,

11
¶¶ 18-19 (internal quotation marks and citation omitted). 	“Taken 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. However, 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. ¶ 16 (alteration in original) (internal quotation
marks and citation omitted). 	Instead, our Supreme Court stated that the statute
required a reasonable probability or likelihood that the child’s life or health would be
endangered by the defendant’s conduct. Id. As such, the risk of harm posed to the
child must be “substantial and foreseeable.” Id. ¶ 22 (internal quotation marks and
citation omitted); UJI 14-604 NMRA. Our Supreme Court noted this to mean that the
defendant must have “place[d] a child within the zone of danger and physically close
to an inherently dangerous situation.” Chavez, 2009-NMSC-035, ¶ 26 (alteration in
original) (internal quotation marks omitted) (quoting State v. Jensen, 2006-NMSC-
045, ¶ 10, 140 N.M. 416, 143 P.3d. 178); see Trossman, 2009-NMSC-034, ¶ 20
(stating that in creating the crime of child abuse by endangerment, “the Legislature did
not intend to criminalize conduct creating a mere possibility, however remote, that
harm may result to a child” (internal quotation marks and citation omitted)). 	Our

12
Supreme Court further commented that a remote risk of harm may indicate that it was
not foreseeable. Chavez, 2009-NMSC-035, ¶ 26.
{19} 	For instance, in State v. Clemonts, we reversed the defendant’s conviction,
holding that the defendant’s speeding and minor traffic violations committed during
a slow speed police chase did not pose a substantial risk to the children in the car
because the risk of harm was too remote. 2006-NMCA-031, ¶¶ 16-17, 139 N.M. 147,
130 P.3d 208. 	We also reversed the conviction in Trujillo, holding that the
defendant’s actions had not placed a child in the direct line of danger when a child
only witnessed the defendant’s attack on her mother from another part of the house
and therefore did not expose the child to a significant risk of harm. 2002-NMCA-100,
¶ 7.
{20} 	From this discussion, we reach two conclusions. 	First, endangerment is
something that exists as an antecedent to any harm that might befall a child. We reach
this conclusion by observing that all of these cases describe endangerment rooted in
criminal negligence as arising from a danger to the child that is known or capable of
being known. 	The defendant must have knowledge of potential and likely
consequences of the endangering behavior that results in a palpable and foreseeable
danger to a child. This is more than merely a “possibility, however remote, that harm
may result to a child.” Trossman, 2009-NMSC-034, ¶ 20. Where the magnitude of

13
a risk of injury is significant enough to impute knowledge of the palpable and
foreseeable danger to a child, the crime of endangerment strongly supports an
awareness on the part of the defendant that the child is foreseeably within the
trajectory of risk the defendant created. 	Stated another way, placing 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. 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 Defendant’s acts.
{21} 	Second, and contrary to the State’s contention at trial, the defendant’s conduct
must create a substantial and foreseeable risk of harm to an identified or identifiable
child within the zone of danger. The risk cannot be merely hypothetical, as the child
must be physically close to an inherently dangerous situation of the defendant’s
creation. The extension of the risk to encompass any unidentified child who might
hypothetically be present within the general population that is endangered by a drunk
driver’s conduct is too broad an application of this statute. The child victim cannot
become identified simply by being injured by Defendant: identification of the child
and the risk to that child must proceed the injury. We now discuss the particularity

14
with which the conduct must be directed at a child victim to constitute child
endangerment.
C. 	Criminal Negligence Must be Directed Toward a Child
{22} 	In addition to the requirement that the defendant create a substantial and
foreseeable risk of harm—placing a child in the zone of danger—the defendant must
also direct his or her criminal negligence toward a child specifically and not solely at
the general public. The State argues that it can meet its burden to prove child abuse
by endangerment, simply by showing that Defendant put children at risk when she put
the public as a whole at risk in driving drunk.
{23} 	We agree that the Legislature intended to protect children through this statute
because of their vulnerability. Our Supreme Court has been quite clear to point out
that the child abuse statute is “designed to give greater protection to children than
adults because children are more vulnerable than adults and are under the care and
responsibility of adults. 	When an adult, without justification, endangers a child’s
safety, the adult is more culpable than when the safety of another adult is
jeopardized.” 	Santillanes, 2001-NMSC-018, ¶ 24 (internal quotation marks and
citations omitted). 	Thus, in protecting this vulnerable group, the Legislature
designated child abuse to be a more egregious crime than other identical negligent
behavior resulting in non-intentional homicide. 	Negligent child abuse resulting in

15
death of a child is a first-degree felony. Section 30-6-1(F). Yet, the Legislature has
designated involuntary manslaughter to be a fourth-degree felony and homicide by
vehicle while driving drunk a third-degree felony. NMSA 1978, § 30-2-3(B) (1994)
(involuntary manslaughter); NMSA 1978, § 66-8-101(C) (2004) (homicide by vehicle
while driving drunk). The classification of negligent child abuse by endangerment
that consequently results in death as a more serious felony than vehicular homicide
or involuntary manslaughter is therefore a direct reflection of the severity with which
the Legislature views conduct directed at a child.
{24} 	However, precedent indicates that to be convicted of child endangerment, the
defendant must act in such a way so as to specifically endanger the child. 	The
defendant must do more than act in a way that endangers the public as a whole. In
Chavez, our Supreme Court required that the risk created by the defendant create
conditions that “present truly consequential and foreseeable threat of harm to
children.” 2009-NMSC-035, ¶ 37 (emphasis added). Chavez also held that no crime
was committed when “the [s]tate failed to present any specific evidence to establish
a substantial and foreseeable risk that the children would suffer serious [injury] as a
result” of the defendant’s risk-creating conduct. Id. ¶ 39.
{25} 	In this case, Defendant may have acted with criminal negligence in driving
drunk, but she did not act with reckless disregard in relation to the safety or health of

16
the children specifically. The “should have known standard” of criminal negligence
is consistent with the requirement that the defendant has “disregarded [the] risk and
[has been] wholly indifferent to the consequences.” Schoonmaker, 2008-NMSC-010,
¶ 45 (alterations in original) (internal quotation marks and citation omitted). Our case
law establishes that the consequences of the defendant’s actions must be specifically
directed at children in the case of child abuse. 	In Clemonts, we stated that
endangerment of children cannot be predicated on a child’s mere proximity to a
dangerous situation, but rather that the defendant’s actions must place the child who
is endangered “in the direct line of any danger” so as to create more than a “mere
possibility of harm.” 2006-NMCA-031, ¶ 16; see Trossman, 2009-NMSC-034, ¶ 20.
In other words, the crime is committed when “a defendant places a child within the
zone of danger and physically close to an inherently dangerous situation.” 	Id. 	We
conclude that the risk and the consequences of risky conduct are those required to be
directed at or sufficiently close to the alleged victim of the abuse. 	See id. ¶ 21
(concluding that precedent requires “the [s]tate to prove the child’s presence in a
situation where harm was both probable and sufficiently grave to justify a criminal
sanction”).
{26} 	The fact that the behavior creating a risk results in the injury of a child is not
dispositive to the analysis. 	As our Supreme Court observed in Schoonmaker, it is

17
almost impossible to be indifferent to or disregard a risk of which one is not aware.
2008-NMSC-010, ¶ 45. 	As such, negligent child abuse is no accident. 	Garcia,
2010-NMSC-023, ¶ 35 (explaining that referring to an act of negligent child abuse as
an “accident” is “a clear misstatement of the law” (internal quotation marks and
citation omitted)). 	The incidental injury of a child caused by criminally negligent
behavior toward the public at large was not contemplated by the Legislature to be
criminalized by this statute. Yet, the State has staked out the contrary position that the
resulting injury determines the crime and not the antecedent conduct.
{27} 	In this case, the facts establish the accidental nature of the harm to the children.
Defendant’s reckless behavior endangered all persons on the road, but nothing about
the situation gives rise to evidence that the children were subjected to any particular
danger not shared by all fellow motorists and their passengers. 	Defendant did not
specifically act in a criminally negligent manner with regard to endangering these
particular children. Rather, she acted that way toward people of all ages on the road
that night.
{28} 	The State acknowledges the nature of endangerment as proceeding the harm
when it points out that Defendant did not know if she would crash into another
vehicle, injure another person, or cause no injury at all. The State stated, “Defendant
did not know what penalty she was facing until the results were seen.” 	This is an

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incorrect standard to apply. Under the State’s logic, the occurrence of child abuse
depends completely upon the incidental age of the injured party and not upon any
culpable state of mind of the defendant. 	Such logic imposes criminal liability
irrespective of how remote the risk of injury is to a child. To adopt this view does not
allow consideration of whether Defendant can assess the potential occurrence of “a
substantial and foreseeable risk” of harm to the children. Chavez, 2009-NMSC-035,
¶ 22 (emphasis omitted) (internal quotation marks and citation omitted); see UJI
14-604 NMRA. Rather, it concentrates on the ultimate consequence of the behavior,
which is uncertain at the time as to the result the risk may produce.
{29} 	More specifically, to operate under the State’s view offends the requirement
that a defendant be cognizant that his or her behavior creates a specific danger to a
particular child. This approach creates a strict liability crime based on the victim’s
age and the resultant injury, not the defendant’s culpability in creating antecedent and
child-directed danger. Such an application of the statute is improper. Conviction of
a defendant for negligent child abuse by endangerment requires a demonstration of
some risk to a child specifically, as opposed to a general risk to the public with an
accidental harm resulting to a child.
{30} 	“Typically, criminal liability is premised upon a defendant’s culpable conduct,
the actus reus, coupled with a defendant’s culpable mental state, the mens rea.” State

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v. Padilla, 2008-NMSC-006, ¶ 12, 143 N.M. 310, 176 P.3d 299. Even if Defendant
commits an act that endangers a child, the State cannot prove child abuse by
endangerment unless Defendant’s culpable mental state coincided with the act.
Defendant must be criminally negligent in placing the child in the direct line of, or at
least close to, the danger by recklessly disregarding the substantial and unjustifiable
risk to the child’s life and health. 	As stated above, this mental state requires that
Defendant know, or at least should know, that her conduct is endangering a child. The
fact that a child was incidentally affected by Defendant’s conduct, even if she knew,
or should have known, that she was endangering the public, is insufficient to prove
the mens rea for negligent child abuse.
{31} 	Where the risk of an injury is apparent or of a great magnitude, the statute
requires that we ask to what extent the circumstances are a particular risk to children.
Consequently, we hold that for a person to be guilty of child abuse by endangerment,
it must be shown that he or she engaged in conduct that directs the risk at a child in
a manner that is foreseeable and is likely to produce endangerment to the particular
child. 	We interpret the plain meaning of “negligence” in Section 30-6-1(D)(1) to
require the State to prove that Defendant knew, or should have known, of the
foreseeable risk created by her behavior that threatens a child’s life or health. Because
a drunk driver creates the possibility of a risk to all persons on the road, it is

20
insufficient for the State to prove a substantial and foreseeable risk by simply
establishing that the possibility exists that a hypothetical child will be injured thereby,
or that a child was actually injured as a result of the defendant’s acts, even though that
child was not known to be endangered at the time. The risk of harm to the child must
be perceived separately from a risk to the public as a whole, so that the defendant
actively disregarded the likelihood of injury to a child.
{32} 	The State failed to prove that Defendant’s behavior endangered a particular
child that was foreseeable at the time of the accident. 	As a result, Defendant’s
conviction must be reversed. In addition, the jury hung and did not return a verdict
on the intentional child abuse charges. Based on the facts of this case and this Court’s
reversal of the conviction for the lesser-included offenses of negligent child abuse, the
evidence is also insufficient to convict Defendant on the more severe charge of
intentional child abuse. Intentional child abuse also requires that the facts demonstrate
that Defendant endangered a particular child that was foreseeable at the time of the
accident. 	Absent such facts, as conceded by the State in this case, the charge of
intentional child abuse by endangerment must also be dismissed as insufficient as a
matter of law. State v. Reed, 1998-NMSC-030, ¶¶ 18-19, 125 N.M. 552, 964 P.2d 113
(holding that the defendant’s cocaine possession charge must be dismissed because

21
there was insufficient evidence to prove he had the requisite knowledge to commit the
crime).
D. 	Double Jeopardy
{33} 	As a final matter, Defendant argues that if this Court reverses her conviction,
the doctrine of double jeopardy prohibits the State from prosecuting her for vehicular
homicide. As double jeopardy applies where Defendant challenges her convictions
for sufficiency of the evidence and she has successfully done so with regard to
negligent child abuse here, we now review Defendant’s double jeopardy contentions.
See State v. Lynch, 2003-NMSC-020, ¶ 11, 134 N.M. 139, 74 P.3d 73. We hold that
double jeopardy precludes the State from prosecuting Defendant for vehicular
homicide.
{34} 	The Double Jeopardy Clause represents three broad guarantees. First, when a
defendant has been acquitted of an offense, the clause guarantees freedom from
subsequent prosecution for the same offense. 	Second, the double jeopardy clause
guarantees freedom from prosecution for the same offense after conviction. Third, it
guarantees a defendant will not be punished twice for the same offense. Id. ¶ 9; see
U.S. Const. amend. V (“No person shall be . . . subject for the same offense to be
twice put in jeopardy of life or limb[.]”); N.M. Const. art. II, § 15 (“No person shall
be . . . twice put in jeopardy for the same offense[.]”); § 30-1-10 (“No person shall be

22
twice put in jeopardy for the same crime [and] he may not again be tried for a crime
or degree of the crime greater than the one of which he was originally convicted.”).
In Lynch, our Supreme Court held:
[T]he State with all its resources and power should not be allowed to
make repeated attempts to convict an individual for an alleged offense,
thereby subjecting him to embarrassment, expense and ordeal and
compelling him to live in a continuing state of anxiety and insecurity, as
well as enhancing the possibility that even though innocent he may be
found guilty.
2003-NMSC-020, ¶ 9 (internal quotation marks and citation omitted). 	Where a
defendant successfully challenges his or her conviction on some basis “other than
insufficiency of the evidence[,]” double jeopardy does not apply. Id. ¶ 11. As stated
above, because we hold that the State’s evidence was insufficient to support a
conviction for negligent child abuse, we consider the double jeopardy issue.
{35} 	For double jeopardy purposes, a greater offense is considered the same offense
as any lesser offenses included therein. 	See id. ¶ 1 (holding that double jeopardy
barred the state from prosecuting a defendant for first-degree murder after his acquittal
for second-degree murder for the same killing). 	“The Double Jeopardy Clause
prohibits successive prosecutions for two offenses arising out of the same conduct if
either one is a lesser-included offense within the other.” State v. Meadors, 121 N.M.
38, 41, 908 P.2d 731, 734 (1995). 	The strict elements test provides the most
straightforward answer on whether a specific offense constitutes a lesser-included

23
offense of another. 	Id. at 42, 908 P.2d at 735. 	Under this approach, courts must
determine whether an offense is “sub-set of the statutory elements of the greater
offense such that it would be impossible ever to commit the greater offense without
also committing the lesser offense.” Id. While New Mexico observes this standard
as a baseline, our state also employs a more flexible “cognate” approach, which
provides that an specific offense constitutes a lesser-included offense if “the evidence
adduced at trial is sufficient to sustain a conviction on the lesser offense[] and . . . 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. at 44, 908 P.2d at 737; see State v. Tanton, 88 N.M. 333, 335, 540 P.2d
813, 815 (1975) (describing the same evidence test); Swafford v. State, 112 N.M. 3,
10, 810 P.2d 1223, 1230 (1991) (explaining the same evidence test).
{36} 	Applying the cognate approach announced in Meadors, we hold that, under the
unique facts of this case, any subsequent prosecution of Defendant for vehicular
homicide would be prohibited as a lesser-included offense under double jeopardy.
121 N.M. at 44, 908 P.2d at 737. Defendant was convicted of negligent child abuse
resulting in death in violation of Section 30-6-1(D)(1), which prohibits negligently
causing a child to be placed in a situation that may endanger that child’s life or health.
The offense of vehicular homicide, of which the State chose not to charge Defendant,

24
prohibits killing or seriously injuring another person with a vehicle while under the
influence of intoxicating liquor. 	Section 66-8-101. 	These two statutes clearly
describe separate offenses under the strict elements test. See Meadors, 121 N.M. at
42, 908 P.2d at 735. Yet, under the cognate approach, vehicular homicide constitutes
a lesser-included offense of negligent child abuse on these facts. 	See Santillanes,
2001-NMSC-018, ¶ 37 (holding “that vehicular homicide is a lesser offense than child
abuse resulting in death . . . [b]ecause the Legislature did not intend to create
separately punishable offenses” under those statutes for the same death).
{37} 	As stated above, during trial, the State presented evidence that Defendant drank
to intoxication and drove her vehicle in such a manner that she negligently caused the
death of one child and injured another. The crux of the parties’ dispute at trial, and
indeed this appeal, was whether such evidence was sufficient to convict Defendant of
negligent child abuse, particularly in light of the fact that the State presented little
evidence suggesting Defendant appreciated any risk that her actions posed any harm
to a specific child victim. Had the jury been instructed on vehicular homicide, it could
have reasonably concluded that Defendant was guilty of that offense instead of
negligent child abuse. Moreover, Defendant’s awareness that her actions imperiled
a specific child was sufficiently in dispute, so as to reasonably lead to acquittal on the
negligent child abuse charge, had the jury received a vehicular homicide instruction.

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{38} 	Accordingly, we hold that any subsequent prosecution for vehicular homicide
in this case would violate double jeopardy. 	The State chose an “all or nothing”
strategy that excluded vehicular homicide. See State v. Villa, 2004-NMSC-031, ¶ 14,
136 N.M. 367, 98 P.3d 1017 (discussing the consequences of an “all-or-nothing” trial
strategy). As our courts have stated many times, the parties “should be liable for the
risks of their respective trial strategies.” Id. To do otherwise would be to violate the
very essence of fairness at the core of the Double Jeopardy Clause.
IV. 	CONCLUSION
{39} 	For Defendant to be convicted of child abuse, the State must show that she
specifically directed her criminally negligent conduct toward children, particularly
toward Manuel and Deandre, in such a way that is distinguishable from the danger she
posed to the public at large. Furthermore, double jeopardy bars retrial of Defendant
for vehicular homicide. Thus, we reverse and remand for vacation of the child abuse
convictions, for amendment of the judgment and sentence to reflect those charges on
which Defendant’s convictions remain unaffected by this opinion, and for discharge
of Defendant.
{40} 	IT IS SO ORDERED.
_______________________________
RODERICK T. KENNEDY, Judge

WE CONCUR:

JAMES J. WECHSLER, Judge

TIMOTHY L. GARCIA, Judge

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