January 23, 2020- State of New Mexico v. Savannah Holm, No. A-1-CA-35932

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico
STATE OF NEW MEXICO Filed 1/23/2020 8:40 AM
Plaintiff-A: 1 Ul. ~£e4
ant Ppel *, Mark Reynolds
V. No. A-1-CA-35932
SAVANNAH HOLM,
Defendant- Appellant.
APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY
Daniel Viramontes, District J udge
Hector H. Balderas, Attomey General
Santa Fe, NM
Lauren J. Wolongevicz, Assistant Attomey General

Charles J. Gutierrez, Assistant Attomey General
Albuquerque, NM

for Appellee

Christin K. Kennedy
Albuquerque, NM

for Appellant
MEMORANDUM OPINION
DUFFY, Judge.
3 Following ajury tial, Defendant Savannah Holm was convicted of numerous

felony charges,’ including one count of child abuse by endangerment in violation of

‘Kidnapping in violation of NMSA 1978, Section 30-4-1 (2003) (Count 1);

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NMSA 1978, Section 30-6-1(D) (2009). Defendant appeals, arguing (1) the evidence	1
is insufficient to support her child abuse conviction; (2) her convictions for child	2
abuse and aggravated battery constitute double jeopardy; and (3) that she received	3
ineffective assistance of counsel. We reverse Defendant’s child abuse conviction for	4
insufficient evidence but otherwise affirm.	5
DISCUSSION	6
I. 	Child Abuse	7
{2} 	When Defendant was eighteen years old, she and her boyfriend, Jorge	8
Cardoza, planned to kill her friend, Arielle Voorhies. During their attack on Arielle	9
at a local soccer field, Jorge stabbed Arielle, Kayla B. (Arielle’s sixteen-year-old	10
sister), and Alex Mancha. After Kayla was stabbed, she asked Defendant for help;	11
Defendant told her to hold still but did not otherwise help. Both Arielle and Alex	12
used their cell phones to call 911 during the attack. When Arielle told Defendant and	13
Jorge that police were coming, they drove off in Jorge’s truck. Not long afterward,	14
Defendant and Jorge crashed and were apprehended. Among the charges resulting	15
conspiracy to commit kidnapping in violation of NMSA 1978, Sections 30-28-2
(1979) and 30-4-1 (Count 2); attempted first degree murder (accessory) in violation
of NMSA 1978, Sections 30-2-1(A)(1) (1994), 30-28-1 (1963), and 30-1-13 (1972)
(Count 3); two counts of aggravated battery with a deadly weapon (accessory) in
violation of NMSA 1978, Section 30-3-5(A), (C) (1969) (Counts 4 and 5); one count
of intentional child abuse (no death or great bodily harm) (endangerment) in
violation of Section 30-6-1(D) (Count 6); and contributing to the delinquency of a
minor in violation of NMSA 1978, Section 30-6-3 (1990) (Count 7).

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from this incident, the State charged Defendant with two counts related to the	1
stabbing 	of 	Kayla: 	aggravated 	battery 	as 	an 	accessory, 	and 	child 	abuse 	by	2
endangerment on the basis that Defendant failed to assist Kayla in getting medical	3
treatment after the stabbing. On appeal, Defendant challenges the sufficiency of the	4
evidence supporting her conviction for child abuse.	5
{3} 	Child abuse by endangerment consists of “a person knowingly, intentionally	6
or negligently, and without justifiable cause, causing or permitting a child to	7
be . . . placed in a situation that may endanger the child’s life or health.” Section 30-	8
6-1(D)(1). “Child abuse by endangerment, as opposed to physical abuse of a child,	9
is a special classification designed to address situations where an accused’s conduct	10
exposes a child to a significant risk of harm, even though the child does not suffer a	11
physical injury.” State v. Chavez, 2009-NMSC-035, ¶ 15, 146 N.M. 434, 211 P.3d	12
891 (emphasis, internal quotation marks, and citation omitted). “A third-degree	13
felony, child abuse by endangerment occurs when an adult knowingly, intentionally,	14
or [with reckless disregard] places a child ‘in a situation that may endanger the	15
child’s life or health.’ ” Id. (quoting Section 30-6-1(D)-(E)). To prove child abuse	16
by endangerment in this case, the jury was instructed in relevant part that the State	17
must prove beyond a reasonable doubt that	18
1. [Defendant] did not assist Kayla [in getting] medical treatment	19
knowing that Kayla [] had been stabbed and was bleeding from the	20
stab wound[;]	21

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2. By engaging in the conduct described in Paragraph 1, caused Kayla	1
[] to be placed in a situation that endangered the life or health of	2
Kayla [];	3
3. [Defendant] showed a reckless disregard for the safety or health of	4
Kayla []. To find that [Defendant] showed a reckless disregard, you	5
must find that [Defendant] caused a substantial and unjustifiable risk	6
of serious harm to the safety or health of Kayla []. A substantial and	7
unjustifiable 	risk 	is 	one 	that 	any 	law-abiding 	person 	would	8
recognize under similar circumstances and that would cause any	9
law-abiding person to behave differently than [Defendant] out of	10
concern for the safety or health of Kayla [].	11
See State v. Arrendondo, 2012-NMSC-013, ¶ 18, 278 P.3d 517 (“[J]ury instructions	12
become the law of the case against which the sufficiency of the evidence is to be	13
measured.” (internal quotation marks and citation omitted)).	14
{4} 	As for the first element, Defendant’s initial brief in chief, which was later	15
withdrawn, argued that she had no legal duty to render aid to Kayla under the	16
circumstances and that her failure to act could not support criminal liability in this	17
case. See Estate of Eric S. Haar v. Ulwelling, 2007-NMCA-032, ¶ 14, 141 N.M. 252,	18
154 P.3d 67 (“The general rule is that a person does not have a duty to act	19
affirmatively to protect another person from harm.” (internal quotation marks and	20
citation omitted)); see also State v. Greenwood, 2012-NMCA-017, ¶ 35, 271 P.3d	21
753 (stating that an omission can constitute a crime only where the defendant had a	22
legal duty to act); cf. 1 Wayne LaFave, Substantive Criminal Law § 6.2(a), at 590	23
(3d ed. 2018) (“For criminal liability to be based upon a failure to act it must first be	24

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found that there is a duty to act—a legal duty and not simply a moral duty.”). This	1
position was not advanced by Defendant in her amended brief in chief. The State,	2
however, argued in its answer brief that a defendant’s “knowing failure to obtain	3
medical care can be prosecuted as child endangerment[.]” This case presents an issue	4
of first impression—i.e., whether Defendant, a non-parent and non-guardian, had an	5
affirmative duty to render aid to Kayla and, if so, whether a breach of such duty	6
supports criminal liability under the child endangerment statute. We thus ordered	7
supplemental briefing on the matter, which we have duly considered.	8
{5} 	The State argues that an affirmative duty to render aid arises under the	9
common law when one person places another in a position of danger, thus creating	10
the peril. Under this theory, the State contends that Defendant was at fault for	11
creating the peril because she was convicted as an accessory to the stabbing, and	12
thus had a common law duty to render aid to Kayla. This common law duty has not	13
previously been recognized or applied in New Mexico, and based on our review,	14
such a duty has been recognized by few other jurisdictions. The State cites only to a	15
few out-of-state cases in support of its position, all of which are factually inapposite.	16
Moreover, the State has not presented any authority to support that a duty to render	17
aid would arise under the circumstances of this case—i.e., that the duty would extend	18
to 	an 	accomplice, 	or 	that 	it 	could 	form 	the 	basis 	for 	criminal 	liability 	in	19
circumstances other than where the defendant’s failure to render aid results in some	20

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further harm. See State v. Godoy, 2012-NMCA-084, ¶ 5, 284 P.3d 410 (“Where a	1
party cites no authority to support an argument, we may assume no such authority	2
exists.” (internal quotation marks and citation omitted)). Consequently, we are	3
doubtful as to the scope and application of the common law duty advanced by the	4
State. But we need not resolve this legal question today because the State failed to	5
present sufficient evidence on the remaining elements.	6
{6} 	To support a conviction for child abuse by endangerment, the State was	7
required to prove beyond a reasonable doubt that Defendant’s failure to assist Kayla	8
in getting medical treatment caused Kayla to be placed in a situation that endangered	9
her life or health and that Defendant showed a reckless disregard for the safety or	10
health of Kayla. See Chavez, 2009-NMSC-035, ¶ 32. Defendant in her briefing	11
focuses on the fact that she did not intend or foresee that Kayla would be injured.	12
Per the jury instructions, however, the State’s theory of causation below and on	13
appeal is that by failing to obtain medical assistance, Defendant caused Kayla “to be	14
placed in a situation that endangered her life or health because a stab wound to the	15
abdomen places a child at risk for serious internal injuries and significant bleeding.”	16
With respect to this argument, the State concedes, for the purpose of avoiding double	17
jeopardy, that “the aggravated battery was grounded upon the stabbing while the	18
child endangerment was grounded on the failure to seek medical assistance, which	19
are two distinct acts separated by time and place.” Thus, even though we agree with	20

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the State that the stabbing itself created an apparent danger to Kayla’s life and health,	1
our analysis of the child endangerment charge is limited to whether Defendant’s	2
conduct following the stabbing endangered Kayla.	3
{7} 	To that end, the State argues that Defendant’s failure to personally assist	4
Kayla in getting medical treatment endangered Kayla because she “could suffer	5
serious health consequences from such an injury if adequate medical care is not	6
received.” However, the State’s evidence at trial established that emergency	7
assistance had been summoned before Defendant left Kayla. Both Arielle and Alex	8
called 911 during the conflict. Defendant fled moments after Kayla was stabbed, but	9
only after being told by Arielle that first responders had been called and were on the	10
way. A recording of both Arielle and Alex’s calls to 911 were played for the jury	11
and demonstrated that first responders arrived on the scene within minutes. Given	12
these facts, the State has not established how Defendant’s failure to separately call	13
for help created any risk of harm to Kayla’s life or health. Cf. Chavez, 2009-NMSC-	14
035, ¶ 37 (“The problem with the present case and this record is the lack of any	15
specific evidence connecting these conditions to a substantial and foreseeable risk	16
of harm.”).	17
{8} 	For the same reasons, we reject the State’s argument that Defendant’s failure	18
to assist Kayla demonstrated reckless disregard. Although the State argues that “any	19
reasonable law-abiding person would seek medical treatment for a minor who has	20

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been stabbed,” the State fails to acknowledge that two other adults had already done	1
so, and any effort by Defendant to that effect would have been merely duplicative.	2
In light of the fact that help had already been summoned, the State has not shown	3
how Defendant’s failure to independently assist Kayla in getting medical help	4
created any risk of harm in this case, much less the substantial and foreseeable risk	5
of harm necessary for criminal prosecution under the endangerment statute. See State	6
v. Schaaf, 2013-NMCA-082, ¶ 8, 308 P.3d 160 (stating that courts have strived to	7
identify the “magnitude and likelihood of the risk of harm to a child that is required	8
for criminal prosecution under the endangerment statute” and have required that the	9
defendant’s conduct create “a substantial and foreseeable risk of harm” (internal	10
quotation marks and citation omitted)). Our courts have recognized that the	11
Legislature intended felony punishment for child endangerment in circumstances	12
where the defendant’s conduct ‘creates a truly significant risk of serious harm to	13
children.’ ” Id. (quoting Chavez, 2009-NMSC-035, ¶ 22). Facts establishing that	14
Defendant’s conduct created a risk of harm, or that the risk was substantial and	15
foreseeable, are simply absent in this record.	16
{9} 	We conclude that the State did not present sufficient evidence to sustain a	17
felony conviction for child endangerment under Section 30-6-1(D) and therefore	18
reverse Defendant’s conviction. Because we reverse, we do not address Defendant’s	19
double jeopardy argument.	20

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II. 	Ineffective Assistance of Counsel	1
{10} 	Defendant argues that she received ineffective assistance of counsel because	2
trial counsel (1) violated her right to a speedy trial; (2) failed to request a change of	3
venue; (3) inadequately defended her at trial; and (4) allowed her to testify at trial.	4
To establish ineffective assistance of counsel on appeal, a defendant must show that	5
her counsel’s performance was deficient and that the deficiency prejudiced the	6
defense. State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61.	7
{11} 	Although Defendant alleges numerous deficient acts and omissions of her trial	8
counsel, she did not make any argument regarding, or otherwise demonstrate,	9
prejudice. “[T]he defendant must show that there is a reasonable probability that, but	10
for counsel’s unprofessional errors, the result of the proceeding would have been	11
different. 	A 	reasonable 	probability 	is 	a 	probability 	sufficient 	to 	undermine	12
confidence in the outcome.” State v. Cordova, 2014-NMCA-081, ¶ 9, 331 P.3d 980	13
(internal quotation marks and citation omitted). Consequently, we conclude that	14
Defendant has not established a prima facie case for ineffective assistance of	15
counsel. State v. Hernandez, 1993-NMSC-007, ¶ 27, 115 N.M. 6, 846 P.2d 312 (“A	16
court need not determine whether counsel’s performance was deficient before	17
examining the prejudice suffered by the defendant as a result of the alleged	18
deficiencies. If it is easier to dispose of an ineffectiveness claim on the ground of	19
lack of sufficient prejudice, which we expect will often be so, that course should be	20

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followed.” (omission, alteration, internal quotation marks, and citation omitted)).	1
Notwithstanding this, Defendant is still entitled to pursue habeas corpus proceedings	2
on this issue. See generally State v. Dylan J., 2009-NMCA-027, ¶ 41, 145 N.M. 719,	3
204 P.3d 44 (noting that “our Supreme Court stated that Rule 5-802 NMRA habeas	4
corpus proceedings are the preferred avenue for adjudicating ineffective assistance	5
of counsel claims.” (internal quotation marks and citation omitted)); see also Duncan	6
v. Kerby, 1993-NMSC-011, ¶ 3, 115 N.M. 344, 851 P.2d 466 (“If an application for	7
a writ of habeas corpus is grounded in facts beyond the record previously presented	8
on appeal, and if the additional facts are those which could not, or customarily would	9
not, be developed in 	a trial 	on criminal 	charges, there should 	be no issue	10
preclusion.”).	11
CONCLUSION	12
{12} 	Based on the foregoing, we reverse Defendant’s conviction for child abuse	13
and remand to the district court to vacate that conviction and to resentence Defendant	14
accordingly. Otherwise, we affirm.	15
{13} 	IT IS SO ORDERED.	16
_____________________________	17
MEGAN P. DUFFY, Judge	18

on:

WE CONCUR:

= L. ATTREP, Judge

BRIANA EL.

RA, Judge

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