July 9, 2020- State of New Mexico v. Michelle Jensen, No. A-1-CA-36416

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-36416	4
MICHELLE JENSEN,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF CIBOLA COUNTY	7
Pedro G. Rael, District Judge	8
Hector H. Balderas, Attorney General	9
Santa Fe, NM	10
Charles J. Gutierrez, Assistant Attorney General	11
Albuquerque, NM	12
for Appellee	13
Bennett J. Baur, Chief Public Defender	14
Kathleen T. Baldridge, Assistant Appellate Defender	15
Santa Fe, NM	16
for Appellant	17
MEMORANDUM OPINION	18
IVES, Judge.	19
{1} 	Defendant Michelle Jensen was convicted, following a jury trial, of three	20
counts of child abuse by endangerment in violation of NMSA 1978, Section 30-6-	21
1(D) (2009). On appeal, Defendant argues that the evidence is insufficient to support	22
all three convictions. As to two of the convictions, she argues that there is not	23
Court of Appeals of New Mexico
Filed 7/9/2020 10:57 AM

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substantial evidence that allowing her daughter (Victim) to smoke marijuana, or	1
giving Victim drug paraphernalia, placed her in a dangerous situation. As to the third	2
conviction, Defendant argues that there is not substantial evidence that she allowed	3
Victim to be alone or unsupervised with a man after Defendant learned that the man	4
had sexually abused Victim. She also challenges the third conviction on the ground	5
that the inclusion of an inaccurate date range in the jury instruction was fundamental	6
error. We affirm.	7
BACKGROUND	8
{2} 	During the summer of 2015, Defendant lived in a house in Milan, New	9
Mexico, with her ten-year-old daughter and three adult men. While living in the	10
house, one of the men began treating Victim “like a girlfriend.” The man caused	11
Victim to engage in sexual acts on multiple occasions. At some point, Victim’s	12
friend 	told 	Defendant 	that 	the 	man 	was 	sexually abusing 	Victim. 	Although	13
Defendant confronted Victim’s abuser, who admitted that he had abused Victim,	14
Victim testified that the abuse occurred two or three additional times after this	15
disclosure. After Defendant learned of the abuse, she allowed the man and his	16
girlfriend to travel with Victim, unaccompanied by Defendant, from New Mexico to	17
Montana by car.	18
{3} 	While living in the house, Victim smoked marijuana with Defendant and her	19
abuser on multiple occasions. Defendant did not dispute that she smoked marijuana	20

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with Victim on two occasions, or that she permitted Victim “to smoke with other	1
people.” Victim also testified that Defendant provided her with marijuana and wax,	2
which Victim described as “pure THC[,]” for later use. Defendant testified that	3
Victim’s “behavior evened out” when she smoked marijuana, and Victim testified	4
that the marijuana made her feel “[a]way from real[i]ty.”	5
{4} 	The 	State 	charged 	Defendant 	with 	three 	counts 	of 	child 	abuse 	by	6
endangerment—two counts, Counts 3 and 4, related to giving marijuana to or using	7
the drug with Victim and one count, Count 1, related to permitting Victim to be alone	8
or unsupervised with the man who had sexually abused her after Defendant learned	9
of the sexual abuse. For the counts based on the marijuana theory, the State charged	10
Defendant in the alternative with contributing to the delinquency of a minor (CDM).	11
Defendant was also charged with failure to report child abuse or neglect in violation	12
of NMSA 1978, Section 32A-4-3 (2005). A jury found Defendant guilty of all	13
charges. She appeals, challenging only her three child abuse convictions.	14
DISCUSSION	15
I. 	Substantial Evidence Supports Defendant’s Child Abuse Convictions	16
{5} 	Defendant argues that her convictions for child abuse by endangerment are	17
not supported by sufficient evidence. “The test for sufficiency of the evidence is	18
whether substantial evidence of either a direct or circumstantial nature exists to	19
support a verdict of guilt beyond a reasonable doubt with respect to every element	20

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essential to a conviction.” State v. Cabezuela, 2015-NMSC-016, ¶ 14, 350 P.3d 1145	1
(internal quotation marks and citation omitted). “Substantial evidence is relevant	2
evidence that a reasonable mind might accept as adequate to support a conclusion.”	3
State v. Largo, 2012-NMSC-015, ¶ 30, 278 P.3d 532 (internal quotation marks and	4
citation omitted). Our review employs a two-step process in which we first “view	5
the evidence in the light most favorable to the guilty verdict, indulging all reasonable	6
inferences and resolving all conflicts in the evidence in favor of the verdict.” State	7
v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. We then	8
consider “whether the evidence, so viewed, supports the verdict beyond a reasonable	9
doubt.” State v. Garcia, 2016-NMSC-034, ¶ 24, 384 P.3d 1076. “We do not reweigh	10
the evidence or substitute our judgment for that of the fact[-]finder as long as there	11
is sufficient evidence to support the verdict.” State v. Gipson, 2009-NMCA-053, ¶ 4,	12
146 N.M. 202, 207 P.3d 1179. “The jury instructions become the law of the case	13
against which the sufficiency of the evidence is to be measured.” State v. Holt, 2016-	14
NMSC-011, ¶ 20, 368 P.3d 409 (alterations, internal quotation marks, and citation	15
omitted).	16
A. 	The 	State 	Presented 	Sufficient 	Evidence 	That 	Smoking 	Marijuana	17
Placed Victim in a Dangerous Situation	18
{6} 	Defendant argues that her “two child abuse convictions for allowing [Victim]	19
to smoke marijuana should be reduced to the more specific crime of CDM” because	20

5
the State presented insufficient evidence “that smoking marijuana placed [Victim]	1
in a situation which endangered her life or health.” We disagree.	2
{7} 	With respect to the essential elements at issue on appeal, the district court	3
instructed the jury that it could only find Defendant guilty of Count 3 if the State	4
proved that Defendant “gave drugs to [Victim], or used drugs with [Victim]” and	5
that by doing so Defendant “caused or permitted [Victim] to be placed in a situation	6
that endangered [Victim’s] life or health.” The instruction on Count 4 included	7
similar elements, though it allowed conviction if the jury found that Defendant “gave	8
drugs to [Victim], or used drugs with [Victim], or allowed [Victim] to have drugs	9
and drug paraphernalia.” (Emphasis added.) See UJI 14-612 NMRA.	10
{8} 	The evidence presented at trial supports Defendant’s convictions for child	11
abuse by endangerment. Defendant does not dispute that there was sufficient	12
evidence that she gave marijuana to Victim, used marijuana with Victim, or allowed	13
Victim to have drugs and drug paraphernalia. Our independent review confirms that	14
there is ample evidence of these facts. At trial, Victim and Defendant both testified	15
that Defendant provided Victim with marijuana and drug paraphernalia and used	16
them together with her. Victim also testified that Defendant gave her additional	17
drugs “to use later.” Two other household members testified that they observed	18
Victim and Defendant smoke marijuana together on at least two occasions.	19

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{9} 	Defendant argues that exposure to marijuana was not tied to a foreseeable risk	1
of harm to Victim. We consider the following factors when determining “whether a	2
defendant’s conduct supports criminal liability for child abuse by endangerment: (1)	3
the gravity of the risk created by the defendant, (2) whether the underlying conduct	4
violates a statute, and (3) the likelihood of harm to the child.” State v. Webb, 2013-	5
NMCA-027, ¶ 18, 296 P.3d 1247 (internal quotation marks and citation omitted).	6
The gravity of the risk “serves to place an individual on notice that his [or her]	7
conduct is perilous, and potentially criminal.” State v. Schaaf, 2013-NMCA-082,	8
¶ 9, 308 P.3d 160 (internal quotation marks and citation omitted). Where the	9
defendant’s conduct violates a separate criminal statute, the endangerment charge is	10
bolstered “because the Legislature has defined the act as a threat to public health,	11
safety, and welfare.” Id. (internal quotation marks and citation omitted). “[T]he	12
likelihood of harm . . . informs th[is C]ourt of the foreseeability of the risk when	13
evaluating its magnitude.” Id. “[T]he state must present specific evidence, including	14
scientific or empirical evidence, connecting the circumstances to a substantial and	15
foreseeable risk of harm[] where it is not readily apparent in the record.” Id.	16
{10} 	Although the State did not present any scientific or empirical evidence, the	17
requisite level of risk is readily apparent from the record in this case. The	18
“Legislature has indicated its determination that marijuana is . . . particularly	19
[dangerous] for minors” by providing increased penalties for distributing marijuana	20

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in drug-free school zones and by providing greater penalties for distributing	1
marijuana to minors than for distributing it to adults. State v. Graham, 2005-NMSC-	2
004, ¶ 12, 137 N.M. 197, 109 P.3d 285. The State’s theory at trial was that allowing	3
Victim, a ten-year-old, to illegally use an intoxicating controlled substance was, in	4
and of itself, dangerous to Victim, and the prosecutor asked the jurors to rely on their	5
common sense about whether Defendant’s conduct endangered Victim’s life or	6
health. The Defendant, for her part, has not advanced an argument on appeal to	7
address that theory and does not otherwise argue that illegally using marijuana with	8
and giving paraphernalia to her ten-year-old daughter to calm her behavioral issues	9
did not endanger her life or health. In addition to the danger created by the use itself,	10
the State presented evidence tending to establish that the circumstances under which	11
Defendant facilitated Victim’s marijuana use enhanced the risk of harm here.	12
Defendant gave Victim marijuana and paraphernalia, allowing her to use the drug,	13
which made her feel “[a]way from real[i]ty,” in whatever circumstances Victim	14
chose, exercising the judgment of a ten-year-old child.1
15
1 Defendant argues that the general-specific statute rule should apply and that
we should reduce her charges from child abuse by endangerment to CDM because
“[t]he State did not argue that allowing [Victim] to be exposed to marijuana
increased the likelihood that she would be sexually abused.” However, Defendant
fails to develop this argument; she does not analyze the elements of the statutes at
issue. Compare § 30-6-1(D)(1) (providing, in pertinent part, that abuse of a child
consists of a person “causing or permitting a child to be . . . placed in a situation that
may endanger the child's life or health”), with NMSA 1978, § 30-6-3 (1990)
(“Contributing to the delinquency of a minor consists of any person committing any

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{11} 	We conclude that sufficient evidence supports Defendant’s convictions for	1
child abuse by endangerment for giving drugs and drug paraphernalia to Victim.	2
B. 	The State Provided Sufficient Evidence That Victim Was Alone or	3
Unsupervised With Her Abuser After Defendant Learned of the Abuse	4
{12} 	Defendant also challenges her conviction for child abuse by endangerment in	5
Count 1, arguing that there was no evidence to support the first element of the charge	6
because “a rational jury could not have reasonably inferred that [Victim] was ever	7
alone or unsupervised with [her abuser] after she disclosed [the] sexual abuse to	8
[Defendant] because there was no evidence presented to support this finding[,]”	9
which was required by the case-specific version of UJI 14-612 given at trial.	10
Defendant is incorrect. Victim testified that she had sexual relations with her abuser	11
on two or three occasions after Defendant learned of the abuse.	12
{13} 	Although Defendant’s testimony supported her theory that Victim was not	13
alone or unsupervised with her abuser after the disclosure, “[c]ontrary evidence	14
act or omitting the performance of any duty, which act or omission causes or tends
to cause or encourage the delinquency of [a child].”), and UJI 14-601 NMRA
(describing essential elements of contributing to the delinquency of a minor). See
generally State v. Santillanes, 2001-NMSC-018, ¶ 11, 130 N.M. 464, 27 P.3d 456
(“[W]e determine whether the general/specific statute rule applies to two criminal
statutes by comparing the elements of the crimes and, if necessary, resorting to other
indicia of legislative intent.”). And we will not do so for her. See Elane Photography,
LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (“We will not review unclear
arguments, or guess at what a party’s arguments might be. To rule on an inadequately
briefed issue, this Court would have to develop the arguments itself, effectively
performing the parties’ work for them.” (alteration, internal quotation marks, and
citation omitted)).

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supporting acquittal does not provide a basis for reversal because the jury is free to	1
reject [an alternative] version of the facts.” State v. Duran, 2006-NMSC-035, ¶ 5,	2
140 N.M. 94, 140 P.3d 515 (internal quotation marks and citation omitted). “The	3
jury, as the trier of fact, was entitled to weigh [the] evidence[,]” State v. Hunter,	4
1984-NMSC-017, ¶ 12, 101 N.M. 5, 677 P.2d 618, and it was not bound by	5
testimony that Victim was always supervised when the abuser was at the house after	6
Victim’s disclosure. This Court would not be free to “substitute its determination for	7
that of the jury” even if it viewed the evidence differently. Id.	8
{14} 	We conclude that sufficient evidence supports Defendant’s conviction for	9
child abuse by allowing Victim to be alone or unsupervised with her abuser after	10
Defendant learned of the abuse.	11
II. 	The Dates in the Jury Instruction for Count 1 Did Not Constitute	12
Fundamental Error	13
{15} 	In the alternative, Defendant contends that we must reverse her conviction on	14
Count 1 on fundamental error review because the jury instruction2 for that count,	15
2 We asked the parties to file supplemental briefs on the issue of whether the
jury instructions accurately stated the mens rea element applicable to reckless child
abuse, an issue that Defendant neither preserved nor raised in his initial briefing. The
State persuasively argues that prudential considerations weigh against addressing
this issue sua sponte given our Supreme Court’s most recent decisions in the area
and the closeness in time between those decisions and the adoption of the relevant
UJI. Although we may reach the issue because it involves a fundamental right, see
State v. Arrendondo, 2012-NMSC-013, ¶ 20, 278 P.3d 517, we are mindful of the
need to be “sparing in [our] exercise of authority to raise issues sua sponte[,]” id.

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which described dates both before and after Victim’s disclosure, allowed the jury to	1
find Defendant guilty for conduct that occurred before Defendant was made aware	2
of the sexual abuse. Defendant’s argument lacks merit because the same instruction	3
that Defendant complains of explicitly required the jury to find that “[Defendant]	4
allowed her daughter, [Victim], to be alone or unsupervised with [her abuser] after	5
[Defendant] learned of the sexual abuse.” (Emphasis added.) It follows that the	6
instruction for Count 1 would not have confused or misdirected a reasonable juror.	7
See State v. Barber, 2004-NMSC-019, ¶ 19, 135 N.M. 621, 92 P.3d 633 (explaining	8
that there is no reversible error, and thus no fundamental error, when a reasonable	9
juror would not have been confused or misdirected by the jury instructions	10
provided). The instruction did not result in fundamental error. See State v. Little,	11
2020-NMCA-___, ¶ 24, ___P.3d___ (No. A-1-CA-36942, May 6, 2020) (holding	12
that no fundamental error resulted from an instruction that erroneously described a	13
time frame extending beyond the victim’s eighteenth birthday where the same	14
instruction required the jury to find that the defendant had abused the victim when	15
she was less than eighteen years old); see also Cunningham, 2000-NMSC-009, ¶ 21	16
(holding that fundamental error does not occur where the jury instructions as a whole	17
provide all of the essential elements of an offense).	18
¶ 20 n.1 (Chavez, J., dissenting in part), and in this instance decide against exercising
our discretion to address the issue in light of these prudential considerations.

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CONCLUSION	1
{16} 	We affirm.	2
{17} 	IT IS SO ORDERED.	3
______________________________	4
ZACHARY A. IVES, Judge	5
WE CONCUR:	6
______________________________	7
J. MILES HANISEE, Chief Judge	8
______________________________	9
MEGAN P. DUFFY, Judge	10