December 12, 2012 – State of New Mexico v. Harla Webb, No. 31,577

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: December 12, 2012
NO. 31,577
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
HARLA WEBB,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
Karen L. Parsons, District Judge
Gary K. King, Attorney General
Olga Serafimova, Assistant Attorney General
Santa Fe, NM
Sri Mullis, Assistant Attorney General
Albuquerque, NM
for Appellee
Jacqueline L. Cooper, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
GARCIA, Judge.
{1} 	Defendant Harla Webb signed the written consent form to allow a piercing to
occur on a minor without obtaining authorization or permission from the minor’s
parent or legal guardian. Though the piercing was successful, the minor sustained
serious injuries as a result of an accidental fall in the tattoo parlor. Defendant appeals
her convictions for child abuse by endangerment without great bodily harm and
contributing to the delinquency of a minor. We affirm Defendant’s conviction for
contributing to the delinquency of a minor but reverse her conviction for child abuse
by endangerment because the State did not present sufficient evidence from which the
jury could find that Defendant’s conduct created a substantial and foreseeable risk of
harm.
BACKGROUND
{2} 	On May 20, 2009, Defendant picked up her daughter, Steffanie, and two of her
daughter’s friends, including fifteen-year-old Nicole, from Ruidoso Middle School.
Defendant and Nicole were not related and had never previously met. Steffanie and
Nicole had arranged for Nicole to be picked up by Defendant because Steffanie was
going to get her belly button pierced and Nicole wanted to get her tongue pierced.
{3} 	Defendant drove the girls to Tre’s Tattoo Studio in Ruidoso. 	Nicole told

2
Defendant that her mother, Jennifer “Michelle” Pino, had given her permission to
have her tongue pierced, but this was not true. Nicole had sufficient cash to pay for
the piercing, which Defendant believed meant that Nicole’s mother had given her
permission. Defendant did not contact Nicole’s mother.
{4} 	When they arrived at Tre’s Tattoo Studio, the owner, Joe “Tre” Garcia,
provided Steffanie and Nicole with a piercing record and release form (Release Form).
Nicole completed the top portion of the Release Form, providing her name, contact
information, age, and date of birth. She indicated that she did not have any allergies,
history of bleeding, or blood borne irregularities. In accordance with New Mexico
law, 16.36.5.11 NMAC (5/16/2008), the Release Form required a parent or legal
guardian to consent to a minor’s piercing. The Release Form states:
A person may not perform a piercing on a minor without the consent of
the minor’s parent or legal guardian, and an establishment may not
perform a piercing on a minor under the age of 18 unless the minor is
accompanied by a (Parent or Legal Guardian). I authorize the piercing
described to be performed on my child.
Defendant printed her name and signed as Nicole’s parent or legal guardian.
{5} 	There was conflicting testimony surrounding Defendant’s act of signing
Nicole’s Release Form. Garcia testified that he asked Defendant whether Steffanie
and Nicole were her daughters and Defendant answered, “Yes.” 	He said that if
Defendant had told him that she was not related to Nicole, he would not have

3
performed the piercing. 	Defendant testified that she did not present herself as
Nicole’s mother or guardian. She said she signed the Release Form because Garcia
told her to sign it and she “didn’t think it was that big of a deal.”
{6} 	Nicole received a tongue piercing without complications. 	She then sat on a
chair to watch Steffanie receive her piercing. Before Steffanie received her piercing,
Nicole passed out and hit the tile floor face first. 	She was unconscious for
approximately ten to fifteen seconds. When she woke up, she looked in the mirror and
saw blood “gushing everywhere.” She noticed one of her teeth was missing and two
were damaged. She had bruising on her face and body and was “in a lot of pain.” {7}
Nicole testified that Defendant did not offer to call 911 or take her to the
hospital. Garcia testified that Defendant did not try to help Nicole in any way and told
Garcia that it was a good thing she was taking Nicole to the dentist the next day.
Defendant testified that she wanted to call 911 or take Nicole to the hospital but
Nicole said she was okay. Defendant testified that Nicole appeared to have “a couple
chipped teeth” but “seemed fine.”
{8} 	Defendant left the tattoo parlor with the children and drove Nicole home. When
they arrived at Nicole’s house, Steffanie walked Nicole to her front door but did not
go inside. Defendant did not exit the car and did not inform anyone about the piercing
or the accident. Nicole told her mother’s boyfriend that she fell down. When Nicole’s

4
mother arrived home from work, she observed bruises on Nicole’s face and damage
to Nicole’s mouth and teeth. Nicole told her mother she had passed out after school.
Nicole’s mother made an emergency dental appointment for the next morning. Later
that night, Nicole told her mother the truth about her fall and the piercing. Nicole’s
mother called Steffanie’s cell phone and asked to speak to Defendant. Defendant did
not come to the phone and did not return the phone call. {9} 	On May 21, Nicole’s
mother took Nicole to a dentist in Alamogordo. The damage to Nicole’s teeth was
more extensive than anyone suspected. As of October 2011, Nicole had received three
root canals and four sets of temporary teeth and still needed additional treatment. She
received penicillin during the course of her treatment and discovered, for the first
time, that she was allergic to the drug. Because she missed so many days of school,
Nicole was forced to drop out and, at the time of the trial, was working to obtain her
GED. She testified her mouth was “always in pain.”
{10} 	Garcia was the only witness who testified about the risks of tongue piercing.
He testified as follows:
Q: 	Now, are there any risks involved?
A: 	Not really. It’s rare that . . . you hear a lot of . . . people . . . say
that you’ll hit a vein. You won’t. Your veins run on the side of
your tongue. In the rare occasion, every one in 100, one in 150,
has that vein in the middle and you can’t do it.
Q: 	Okay. 	What about for infections and things of that nature? 	Is

5
there a risk?
A: 	We tell you how to take care of it . . . . If you don’t take care of
it, it’s gonna get infected, like anything else.
Q: 	So, . . . so you’re saying, there is a risk?
A: 	Oh, yes, ma’am. 	There’s a risk with anything, with an ear
piercing, a tattoo, . . . eyebrow piercing, a tongue piercing, all of
it.
Q: 	Okay. Alright, so are there any other types of risk involved?
A: 	Just infection. Infection is the main risk.
He testified that in his approximately twenty years of doing piercings, he had never
seen someone faint from a piercing before Nicole.
{11} 	Defendant was charged by way of criminal information with three counts: (1)
abandonment of a child resulting in great bodily harm; (2) forgery; and (3)
contributing to the delinquency of a minor (CDM). The State filed a nolle prosequi
on the forgery count prior to trial. 	A jury trial was held on November 18, 2010.
Defense counsel moved for a directed verdict at the close of the State’s case. The
district court denied the motion. Defense counsel renewed the motion at the close of
the evidence and the court again denied the motion.
{12} 	The jury was instructed on child abuse with and without great bodily harm. To
find Defendant guilty of child abuse without great bodily harm, the State had to prove
beyond a reasonable doubt, inter alia:

6
1. 	[Defendant] caused Nicole . . . to be placed in a situation which
endangered the life or health of Nicole;
2. 	[D]efendant 	acted 	with 	reckless 	disregard 	and 	without
justification. To find that [Defendant] acted with reckless disregard, you
must 	find 	that 	. 	. 	. 	[D]efendant 	knew 	or 	should 	have 	known
[D]efendant’s conduct created a substantial and foreseeable risk, . . .
[D]efendant disregarded that risk and [D]efendant was wholly indifferent
to the consequences of the conduct and to the welfare and safety of
Nicole [.]
{13} 	The jury was instructed that, to find Defendant guilty of CDM, the State had to
prove beyond a reasonable doubt, inter alia:
1. 	[D]efendant took the child to have a piercing and signed the
consent for the procedure without conferring with [Nicole’s] parent
and/or . . . [D]efendant did not seek medical treatment for the child
and/or notify [Nicole’s] parent of [Nicole’s] injuries.
2. 	This caused and/or encouraged Nicole . . . to refuse to obey the
reasonable and lawful commands or directions of her parent a person
who had lawful authority over Nicole . . . [OR] conduct herself in a
manner injurious to her morals and/or health and/or welfare of Nicole.
The jury found Defendant guilty of child abuse without great bodily harm and CDM.
DISCUSSION
{14} 	On appeal, Defendant challenges the sufficiency of the evidence to support her
conviction. “[O]ur review for sufficiency of the evidence is deferential to the jury’s
findings.” State v. Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057. We
review direct and circumstantial evidence “in the light most favorable to the guilty
verdict, indulging all reasonable inferences and resolving all conflicts in the evidence

7
in favor of the verdict.” Id. (internal quotation marks and citation omitted). We must,
however, scrutinize “the evidence and supervision of the jury’s fact-finding function
to ensure that, indeed, a rational jury could have found beyond a reasonable doubt the
essential facts required for a conviction.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126
N.M. 438, 971 P.2d 829 (internal quotation marks and citation omitted).
A. 	Child Abuse by Endangerment
{15} 	Defendant was convicted of child abuse by endangerment pursuant to NMSA
1978, Section 30-6-1(D)(1) (2009), which defines the offense as “knowingly,
intentionally or negligently, and without justifiable cause, causing or permitting a
child to be . . . placed in a situation that may endanger the child’s life or health[.]”
“[T]he legislative purpose that animates [this] statute [is] to punish conduct that
creates a truly significant risk of serious harm to children[,]” it “would be reserved for
the most serious occurrences, not for minor or theoretical dangers.” State v. Chavez,
2009-NMSC-035, ¶¶ 16, 22, 146 N.M. 434, 211 P.3d 891. 	Prior to Chavez, we
reviewed convictions under this statute to determine whether the State had proved the
defendant’s conduct created a “reasonable probability or possibility” of endangerment.
Id. ¶¶ 16, 17 (internal quotation marks and citation omitted). In Chavez, the Supreme
Court rejected this test and held that, to support a conviction, the state must prove the
defendant’s conduct “created a substantial and foreseeable risk of harm.” 	Id. ¶ 22

8
(emphasis, internal quotation marks, and citation omitted).
{16} 	Since Chavez, we have upheld a conviction for child abuse by endangerment
where a defendant, while intoxicated, drove a vehicle with his nine-year-old child as
a passenger. See State v. Orquiz, 2012-NMCA-080, ¶ 8, 284 P.3d 418, cert. granted,
2012-NMCERT-___, ___ P.3d ___, (No. 33,677, Aug. 3, 2012). We have also upheld
a conviction for child abuse by endangerment where a reasonable jury could have
found a defendant was aware that her son was being abused by her boyfriend and
continued to leave her son in the boyfriend’s care, ultimately resulting in her son’s
death by abuse. State v. Vasquez, 2010-NMCA-041, ¶¶ 3, 21, 24, 148 N.M. 202, 232
P.3d 438.
{17} 	Defendant contends the State failed to present any evidence that her conduct
created a substantial and foreseeable risk of harm to Nicole. The State argues that
Defendant’s conduct of signing the Release Form created a substantial and foreseeable
risk of harm to Nicole from the piercing itself and from the possibility of an infection.
The State also argues that Defendant’s lack of knowledge about the tongue piercing
procedure and about Nicole’s medical history, in particular her allergy to penicillin,
created a substantial and foreseeable risk of harm to Nicole.
{18} 	We consider the following factors in analyzing whether a defendant’s conduct
supports criminal liability for child abuse by endangerment: “(1) the gravity of the

9
risk created by the defendant, (2) whether the underlying conduct violates a statute,
and (3) the likelihood of harm to the child.” 	State v. Gonzales, 2011-NMCA-081,
¶ 17, 150 N.M. 494, 263 P.3d 271, cert. granted, 2011-NMCERT-008, 268 P.3d 514.
While the likelihood that harm will occur is “no longer a determinative factor . . . it
still remains an important consideration when evaluating the magnitude of the risk.”
Id. (internal quotation marks and citation omitted).
{19} 	Defendant provided written consent for Nicole to receive a tongue piercing.
The State first argues the piercing itself constituted a substantial and foreseeable risk
of harm from Defendant’s conduct. While it was certainly foreseeable that Nicole
would receive a piercing based on Defendant’s act of signing the Release Form, we
are not persuaded by the evidence presented in this case that piercing is the type of
most serious occurrence from which our Legislature intended to protect children. In
reaching this conclusion, we reject the State’s argument that this case is analogous to
the dangers identified in State v. Graham, 2005-NMSC-004, 137 N.M. 197, 109 P.3d
285.
{20} 	In Graham, our New Mexico Supreme Court held there was sufficient evidence
to support the defendant’s conviction for child abuse by endangerment where, during
a lawful search of a house in which two infants were present, police officers found a
marijuana roach on the living room floor and a marijuana bud in a crib. Id. ¶¶ 2, 15

10
(applying the less stringent test utilized before the standard was changed in the Chavez
decision). The Graham Court explained: “Given the illegality of the [marijuana] and
the Legislature’s determination that the substance is particularly dangerous to minors,
we believe it is within the jurors’ experience to decide whether the amount of
accessible marijuana endangered the health of [the young children].” Id. ¶ 12. Unlike
marijuana, body piercing is not illegal. The State directs us to Subsection (C)(7) of
Regulation 	16.36.5.11 	of 	the 	Administrative 	Code, 	which 	requires 	body 	art
establishments to maintain written proof of the presence and consent of a parent or
legal guardian for procedures performed on clients who are minors. This suggests, at
most, that body piercing is an adult activity unless consent is provided. It does not
suggest that piercing, in and of itself, is illegal or presents a foreseeable risk of serious
harm to children. 	As such, Graham is inapposite and applied a standard for
foreseeable endangerment that is no longer utilized by our courts.
{21} 	The State next argues that infection was a substantial and foreseeable risk of
harm from Defendant’s conduct. While the State may have attempted to establish that
infection constituted a substantial risk, it failed to do so based upon the evidence
presented in this case. The only witness who testified regarding the risk of infection
was Tre Garcia, the owner of the tattoo parlor. Garcia testified that “[i]nfection is the
main risk” of tongue piercing but he did not quantify the risk in any way and, in fact,

11
seemed to minimize it. 	Even assuming that the level of risk from post-piercing
infection could be established with empirical or scientific evidence, there was no such
evidence here.
{22} 	The State also argues that Defendant’s conduct supports criminal liability
because Defendant lacked knowledge about tongue piercing and about Nicole’s
medical history, in particular, her allergy to penicillin. 	We are not persuaded.
Defendant did not perform the piercing; rather, she signed the consent form allowing
Nicole to be pierced by Garcia. Whether Defendant’s actions endangered Nicole’s life
or health within the meaning of the statute does not depend on Defendant’s knowledge
of tongue piercing. The evidence established that Garcia had sufficient knowledge
and experience to perform this type of piercing. As for the allergy, at the time Nicole
received the piercing, neither Nicole nor her mother knew that Nicole was allergic to
penicillin. 	The child endangerment statute “evinces a legislative intent to use the
concept of criminal negligence . . . as the standard for negligent child abuse.” State
v. Schoonmaker, 2008-NMSC-010, ¶ 44, 143 N.M. 373, 176 P.3d 1105. In order to
be criminally negligent, a defendant need not be subjectively aware of a risk, but the
risk must be one of which “‘he should be aware.’” 	Id. ¶ 43 (emphasis omitted)
(quoting Model Penal Code § 2.02(c) (Official Draft and Revised Comments 1962)).
“The risk must be of such a nature and degree that the actor’s failure to perceive it, .

12
. . involves a gross deviation from the standard of care that a reasonable person would
observe in the actor’s situation.” Id. (emphasis omitted). No one could have foreseen
that Nicole would have or develop an allergy to penicillin, which would complicate
her treatment. Defendant cannot be convicted for child abuse for failing to perceive
a risk to Nicole of which nobody was aware.
{23} 	The State did not present sufficient evidence from which a jury could find that
Defendant’s conduct created a substantial and foreseeable risk of serious harm to
Nicole. As we explained in Gonzales, “it is the endangerment and not the resulting
injury that constitutes the offense[.]” 	2011-NMCA-081, ¶ 20. 	Thus, to support
liability, “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.” Id. There was no
such foreseeability of serious injury established in this case. Accordingly, we reverse
Defendant’s conviction for child abuse by endangerment.
B. 	Contributing to the Delinquency of a Minor
{24} 	Defendant was also convicted of CDM pursuant to NMSA 1978, Section 30-6-3
(1990), which defines the offense as “committing any act or omitting the performance
of any duty, which act or omission causes or tends to cause or encourage the
delinquency of any person under the age of eighteen years.” Defendant contends there
was insufficient evidence to show that she “cause[d] and/or encourage[d] Nicole to

13
deceive her mother.” We disagree.
{25} 	In State v. Dietrich, we rejected the defendant’s argument that there was
insufficient evidence to support his conviction for CDM because the minor, an
admitted heroin user, never testified that the defendant encouraged him to use alcohol
or drugs. 2009-NMCA-031, ¶¶ 56, 61, 145 N.M. 733, 204 P.3d 748. We held that the
minor’s testimony that the defendant “provided and purchased drugs and alcohol for
[the minor] satisfies the element of causing [the minor] to engage in underage
drinking/drug use whether or not [the d]efendant encouraged such use.” 	Id. ¶ 61
(alteration, internal quotation marks omitted). Similarly here, the jury could find that
Defendant’s act of transporting Nicole to the tattoo parlor and signing the Release
Form caused or encouraged Nicole to deceive her mother by obtaining a piercing
without permission even though Defendant did not actively encourage the piercing.
{26} 	“The purpose of the CDM statute is to protect children from harmful adult
conduct.” 	State v. Barr, 1999-NMCA-081, ¶ 17, 127 N.M. 504, 984 P.2d 185
(internal quotation marks and citation omitted); see also State v. Pitts, 103 N.M. 778,
780, 714 P.2d 582, 584 (1986) (“[T]he intent of the Legislature in enacting Section
30-6-3 . . . was to extend the broadest possible protection to children, who may be led
astray in innumerable ways.”). Our New Mexico Supreme Court has “consistently
rejected narrow constructions of the statute that would limit its usefulness in

14
protecting children.” Pitts, 103 N.M. at 780, 714 P.2d at 584. “We always have relied
on juries to determine what acts constitute contributing to delinquency in a particular
case.” State v. Trevino, 116 N.M. 528, 531, 865 P.2d 1172, 1175 (1993).
{27} 	Even though Nicole told Defendant that her mother had given her permission
for a tongue piercing, it was for the jury to determine whether Defendant’s failure to
confirm this with Nicole’s mother or require Nicole’s mother to sign the Release Form
was reasonable under the circumstances. See State v. Romero, 2000-NMCA-029, ¶
31, 128 N.M. 806, 999 P.2d 1038 (“[W]here the State seeks to convict a defendant of
CDM for causing or encouraging a minor to refuse to obey the reasonable and lawful
command or direction of the minor’s parent . . . the State must prove . . . that the
defendant knew or by the exercise of reasonable care should have known of such
command or direction.”). The State introduced sufficient evidence from which the
jury could find that Defendant knew or should have known that Nicole’s mother had
not consented to the piercing. Defendant testified that she believed Nicole had her
mother’s permission because she had sufficient cash to pay for the piercing, but it was
for the jury to determine whether this was reasonable. 	Defendant did not contact
Nicole’s mother, or any other member of Nicole’s family, even after the accident. The
jury could have inferred from this conduct that Defendant knew she had acted without
permission. 	Accordingly, we conclude there was sufficient evidence to support

15
Defendant’s conviction for CDM.
CONCLUSION
{28} 	We affirm Defendant’s conviction for contributing to the delinquency of a
minor. Because we conclude the evidence was insufficient to support Defendant’s
conviction for child abuse by endangerment, we reverse Defendant’s conviction on
that count and remand for further proceedings consistent with this Opinion.
{29} 	IT IS SO ORDERED.
______________________________
TIMOTHY L. GARCIA, Judge
WE CONCUR:
_________________________________
MICHAEL D. BUSTAMANTE, Judge
_________________________________
MICHAEL E. VIGIL, Judge