State v. Garcia

Office of the Director New Mexico
09:24:57 2021.06.24 Compilation
'00'06- Commission

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2021-NMSC-019

Filing Date: January 8, 2021

No. S-1-SC-36121

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

CHRISTOPHER BERT GARCIA,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Cristina T. Jaramillo, District Judge

Released for Publication June 29, 2021.

Justine Fox-Young, P.C.
Justine C. Fox-Young
Albuquerque, NM

for Appellant

Hector H. Balderas, Attorney General
John J. Woykovsky, Assistant Attorney General
Santa Fe, NM

for Appellee

OPINION

VIGIL, Justice.

{1} Fourteen-month-old Isaac Arevalos (Isaac) died as a result of injuries he suffered
while in the care of Defendant Christopher Garcia and Defendant’s wife. The State
charged Defendant with two counts of intentional child abuse resulting in the death of a
child under twelve, including numerous alternatives and lesser included offenses. At
trial, the State proposed two theories of child abuse. First, the State alleged that
Defendant inflicted the injuries on Isaac or permitted his wife to do so. Second, the
State advanced a theory of medical neglect, alleging that Isaac died as a result of
Defendant’s decision not to call 9-1-1 after Isaac was injured.
{2} The jury found Defendant not guilty of inflicting the injuries or permitting them to
be inflicted, but found him guilty of child abuse under a theory of medical neglect.
Reviewing Defendant’s conviction on direct appeal, we hold that the evidence was
insufficient to prove beyond a reasonable doubt that the delay in medical care caused
Isaac’s death. Defendant was additionally convicted of conspiracy to commit child
abuse. Considering the evidence presented, we hold that it was insufficient to prove that
Defendant and his wife agreed to commit child abuse against Isaac.

{3} Isaac’s death was undeniably tragic. There is no question that Isaac’s injuries
were severe and resulted in his death. Yet, the jury acquitted Defendant of inflicting
those injuries or permitting another to inflict those injuries on Isaac. And despite the
severity of Isaac’s injuries, we hold the State failed to present sufficient evidence to
prove that Defendant caused Isaac’s death by medical neglect or that Defendant and
his wife agreed to abuse Isaac. We are reminded in this case of our responsibility to
ensure that convictions are supported by the evidence and not merely by speculation or
conjecture. State v. Flores, 2010-NMSC-002, ¶ 2, 147 N.M. 542, 226 P.3d 641.
Accordingly, we reverse Defendant’s convictions and dismiss the charges in order to
avoid a double jeopardy violation. State v. Consaul, 2014-NMSC-030, ¶ 41, 332 P.3d
850; see also State v. Luna, 2018-NMCA-025, ¶ 27, 458 P.3d 457 (citing State v.
Dowling, 2011-NMSC-016, ¶ 18, 150 N.M. 110, 257 P.3d 930 (holding that retrial is
barred by double jeopardy if the court concludes that there was insufficient evidence at
trial to support a conviction)).

I. BACKGROUND

{4} Defendant was tried before a jury on two counts of child abuse resulting in death
and one count of conspiracy to commit child abuse in connection with Isaac’s death in
March 2015. The following testimony was presented at Defendant’s trial.

{5} Isaac was the son of Carmina Vargas (Vargas) and Ramon Arevalos (Arevalos).
Defendant and his wife, Lizy Portillo (Portillo), would babysit Isaac several times a
week, with Isaac sometimes spending the night. On Saturday, March 21, Vargas asked
Defendant and Portillo to watch Isaac while she and Arevalos worked on fixing up a
mobile home that they planned on living in together. The next evening, Defendant and
Portillo brought Isaac over to the mobile home for a visit. At trial, Vargas recalled that
Isaac seemed “normal” and “happy” and had no visible marks on his body, and Arevalos
described Isaac as “healthy” and “smiling.” Over the next two days, Vargas and Portillo
arranged multiple times to have Isaac returned, but Defendant and Portillo never did so.

{6} At 4:36 a.m. on Wednesday, March 25, Vargas received a panicked call from
Defendant saying that Isaac had fallen off the bed and hit the nightstand. Defendant told
Vargas that he could not keep Isaac awake and that he would bring Isaac to her, but
Vargas decided to go and get Isaac herself. Vargas testified that she saw Defendant
driving fast with his hazard lights on and flagged him down. She recalled:

He opened the door and he starting unbuckling [Isaac] from the car seat.
And he just handed me [Isaac] through the window, and that’s when I felt
. . . that he wasn’t right. And all he kept telling me was, “He’s lifeless, he’s
lifeless, and I don’t know what to do.” . . . And when I looked back, he
said, “Just don’t tell the cops that we had the baby, because if you tell the
cops, they’re going to call [Children, Youth, and Families Department] on
you.” And he got in his truck, and he just left me there.

Vargas then drove Isaac to Arevelos’s house, roughly two minutes away. She testified
that Isaac’s breathing was slow and “hollow” and that he was “[g]asping for air.” At the
house, Vargas gave Isaac to Arevalos and called 9-1-1. Arevalos testified that Isaac
“had a couple bumps on his forehead [and] cheeks” and “looked . . . palish, purplish, like
he wasn’t breathing.” Arevalos and his mother each performed CPR on Isaac.

{7} According to the testimony of paramedic Joseph Drevenak, paramedics were
dispatched at 4:52 a.m. and took roughly six minutes to arrive at the Arevalos home.
When they arrived, Isaac displayed “decorticate posturing” and a clenched jaw, both
indicative of a head injury. Drevenak noticed that Isaac had bruising on his chest, arms,
and legs and had “blood around his nose and mouth.” Isaac was breathing at a rate of
about two breaths per minute, lower than the twenty-five to thirty breaths per minute
normal for a child Isaac’s age. Paramedics used a “bag valve mask” on Isaac to “force
breaths into him” and provided him with supplemental oxygen. By the time they got to
the University of New Mexico Hospital (UNMH) at 5:17 a.m., Isaac was breathing on his
own and at a normal rate, although his breathing remained labored. During an
examination later that morning, Isaac regained consciousness but did not display
normal brain stem reflexes. By March 27, examinations showed no brain activity, and
Isaac was declared dead.

A. Explanations of Isaac’s Injuries

{8} After following Isaac to UNMH, Vargas was taken to a police station and
questioned. Vargas initially told police that Isaac had been with her and that he had
fallen off a couch and hit his head. She maintained this story for roughly six hours
before eventually telling the police that Isaac had been with Defendant and Portillo.
Defendant and Portillo were then brought in and questioned separately by Detectives
Michael Carrasco and Eli Lucero.

{9} Defendant initially told the detectives that the last time he had seen Isaac was
Sunday, March 22 but eventually agreed that he had seen Isaac the morning of March
25. Defendant explained to Detective Carrasco that Isaac had fallen off a bed and hit an
end table. He claimed that Isaac lost consciousness and regained it five minutes later,
but then said that Isaac was only unconscious for thirty seconds. Defendant told
Detective Lucero that Isaac hit his head hard and that, when Defendant picked Isaac up
to put him on the bed, he was dazed and his eyes rolled back. Defendant also told the
detectives that he performed CPR on Isaac but later said that he decided not to perform
CPR because he heard Isaac breathing. Defendant explained that he then called
Vargas to tell her Isaac had fallen and to see what she wanted him to do. We note that
Portillo stated in her interview with Detective Lucero that she shook Isaac for ten to
fifteen minutes after the fall to try and wake him up.
{10} Defendant also testified at trial and gave the following account of the events
leading up to Isaac’s death. Isaac was staying with Defendant and Portillo on the night
of March 24, and when Defendant went to bed at 2 a.m., Isaac was sleeping in a child’s
bed in the living room. Defendant claimed he was then awakened by a crash, got up,
and found Isaac between the nightstand and Defendant’s bed. Isaac seemed “dazed”
and “confused,” and Defendant was concerned about Isaac’s reaction to the fall.
Defendant stated that Portillo thought it would be a good idea to splash water on Isaac
to keep him awake, so Defendant and Portillo took Isaac to the bathroom. Defendant
left Isaac with Portillo and started preparing to go back to bed. When Portillo came out
of the bathroom with Isaac, Defendant thought he should call Vargas and let her know
that Isaac had fallen. Defendant recalled that he was “freaked out” and that Vargas told
him to calm down and bring Isaac to her. Defendant then placed Isaac in a car seat and
drove to the place where he and Vargas had agreed to meet, at which point Isaac “had
fallen back asleep” and was snoring. Defendant then gave Isaac to Vargas, “[s]he gave
him a little shake, . . . he opened his eyes,” and Defendant went home.

B. Medical Testimony

{11} At trial, several medical experts testified regarding Isaac’s injuries. Dr. Shalon
Nienow, qualified as an expert in general pediatrics, examined Isaac on the morning of
March 25. She testified that Isaac had multiple bruises in several locations around his
head. Dr. Heather Jarrell, qualified as an expert in forensic neuropathology, general
forensic pathology, and blunt head trauma, supervised Isaac’s autopsy on March 30. Dr.
Jarrell testified that Isaac had twenty-seven points of bleeding underneath his scalp. Dr.
Jon Hallstrom, qualified as an expert in diagnostic neuroradiology, reviewed a CT scan
and an MRI of Isaac, both taken on the morning of March 25. Dr. Hallstrom testified that
Isaac had multiple subdural hemorrhages, or blood in the space between the brain and
a connective tissue that covers the brain called dura matter, in several locations on his
brain. Dr. Timothy Winter, a pediatric ophthalmologist at UNMH, reviewed images of
Isaac’s retinas on March 31. Dr. Winter testified that Isaac had “diffuse hemorrhages,
[or] bleeding inside the eye in multiple layers of the retina.” Dr. Nienow additionally
testified that Isaac’s retinal hemorrhages were in “multiple layers too numerous to
count[,] out to the periphery of the retina.”

{12} Several experts testified that subdural and retinal hemorrhages are caused by
rapid acceleration and deceleration forces on the brain, such as forces caused by
falling, shaking, or blunt-force trauma. As Dr. Hallstrom explained, “if the body’s moving
and stops suddenly or changes direction suddenly, the brain will continue to move to
some degree so it can . . . get sort of a shearing force . . . or impaction force of the brain
against other structures.” However, Dr. Nienow testified that the bruising on Isaac’s
head could not have been caused by shaking alone: “The impact injuries to this child’s
head are caused by blunt-force trauma. There is no other mechanism. Pure shaking
cannot cause those injuries.” She also explained how the location of the bruises
indicates that they must have been the result of more than one impact and that Isaac’s
retinal hemorrhaging would have been the result of “repeated acceleration/deceleration
events.”
{13} Medical experts further testified about the injuries to Isaac’s brain itself. Dr.
Hallstrom testified that the images he reviewed showed signs of a “brain edema,” an
accumulation of fluid or swelling in the brain. He explained that the appearance and
distribution of the edema was indicative of a “fairly severe” global hypoxic-ischemic
injury, meaning a lack of oxygen and blood to the brain. Dr. Jarrell testified that there
was evidence of a “diffuse axonal injury” in Isaac’s upper cervical spinal cord, an injury
to the connections between neurons which impairs the ability of those neurons to
communicate. She explained that an axonal injury can be a “traumatic axonal injury,”
caused by acceleration or deceleration forces, or it can be a “[v]ascular axonal injury,”
caused by a “lack of oxygen being delivered to brain cells.” She further explained that
Isaac had indicators of traumatic axonal injury, but that those indicators are also
sometimes caused by “severe hypoxic-ischemic injury.”

{14} Dr. Nienow and Dr. Jarrell testified that the ultimate cause of Isaac’s death was
the global hypoxic-ischemic injury. Dr. Nienow explained that after an initial brain injury,
the signals to breathe do not work and the brain is then not appropriately oxygenated,
leading to hypoxic-ischemic injury. Both Dr. Nienow and Dr. Jarrell testified that a delay
in medical treatment reduced Isaac’s chances of surviving, but neither could testify to a
reasonable degree of medical certainty that Isaac would have lived with earlier medical
intervention.

C. Verdict

{15} At the close of the evidence, the State’s overarching theory of the case was that
“[e]ither [Defendant] beat that baby, they both beat that baby, or one of them sat by and
let it happen, and then they both denied him medical care. Medical care that gave him a
chance at surviving.”

{16} The jury was accordingly instructed on three counts with several alternatives and
lesser included offenses. Under Count 1 and its lesser included offenses, the State
alleged that Defendant committed child abuse resulting in death by either intentionally
or recklessly “caus[ing] physical injury to the head and/or brain with force to Isaac”
resulting in his death, or by recklessly permitting such injury to be caused. Under Count
2 and its lesser included offenses, the State alleged that Defendant committed child
abuse resulting in death by either intentionally or recklessly “caus[ing] medical neglect”
to Isaac, resulting in his death. Under Count 3, the State alleged that Defendant
conspired with another person to commit child abuse.

{17} After deliberations, the jury found Defendant (1) not guilty of Count 1 and its
lesser included alternatives; (2) guilty of Count 2, intentional child abuse resulting in the
death of a child under twelve by endangerment, contrary to NMSA 1978, Section 30-6-
1(D)(1), (H) (2009); and (3) guilty of Count 3, conspiracy to commit child abuse, contrary
to NMSA 1978, Section 30-28-2 (1979) and Section 30-6-1(D). Defendant was
sentenced to life imprisonment for Count 2 plus a consecutive sentence of nine years
for Count 3, with five years suspended, for an actual sentence of life plus four years.
Defendant appeals his convictions of Counts 2 and 3 directly to this Court pursuant to
Rule 12-102(A)(1) NMRA.
II. INTENTIONAL CHILD ABUSE RESULTING IN DEATH BY ENDANGERMENT
THROUGH MEDICAL NEGLECT

{18} The jury found Defendant guilty of Count 2, intentional child abuse resulting in
the death of a child under twelve by endangerment contrary to Section 30-6-1(D)(1),
(H). In pertinent part, Section 30-6-1(D)(1) provides that “[a]buse of a child consists of a
person knowingly, intentionally or negligently, and without justifiable cause, causing . . .
a child to be . . . placed in a situation that may endanger the child’s life or health[.]”
Intentional child abuse resulting in the death of a child under twelve carries a sentence
of life imprisonment. Section 30-6-1(H); NMSA 1978, Section 31-18-15(A)(1) (2016).

{19} Specifically, Defendant was convicted under a theory of child endangerment by
medical neglect. Medical neglect is not defined by the child abuse statute, but we have
defined it as the “‘[f]ailure to provide medical, dental, or psychiatric care that is
necessary to prevent or to treat serious physical or emotional injury or illness.’” State v.
Nichols, 2016-NMSC-001, ¶ 34, 363 P.3d 1187 (alteration in original) (quoting Black’s
Law Dictionary 1196 (10th ed. 2014)). “Medical neglect, by definition, can only be
charged when someone fails to seek or provide necessary medical care, a theory that
implies passive involvement.” Nichols, 2016-NMSC-001, ¶ 34. We noted the novelty of
medical neglect as a theory of child abuse by endangerment in Nichols but accepted it
as viable so long as it is supported by the evidence presented at trial. Id. ¶ 45 n.4.

{20} In this case, the State’s theory regarding medical neglect was that Defendant, in
order to avoid blame for Isaac’s injuries, did not call 9-1-1 and instead took Isaac to
Vargas:

When Isaac lost consciousness, all that needed to happen was for 9-1-1
to be called in order to give him a survivable chance, but that didn’t
happen. [Defendant] did not call 9-1-1, instead, he and his wife delayed
things for a period of time while Isaac’s brain shut down from oxygen
deprivation. And then he took the baby to [Vargas] threatening her, more
or less, and kind of passing off the evidence of his actions hoping to keep
his hands clean.

{21} Defendant now challenges his conviction, raising two arguments on appeal. First,
Defendant argues that the evidence was insufficient to prove that his conduct resulted in
Isaac’s death or that he acted intentionally. Second, Defendant contends that the jury
instructions on this count were in error because there was not an instruction defining
causation for the jury and because the instructions included the incorrect mens rea for
intentional child abuse by endangerment. Because we determine that the evidence was
insufficient to prove that Defendant’s conduct resulted in Isaac’s death, we need not
consider Defendant’s second argument regarding improper jury instructions. See, e.g.,
State v. Rojo, 1999-NMSC-001, ¶¶ 1, 27 n.1, 126 N.M. 438, 971 P.2d 829 (“[S]ince we
reverse [the d]efendant’s kidnapping conviction due to the insufficiency of the evidence,
we need not decide whether the district court erred in supplementing the jury instruction
for kidnapping.”).
A. The Jury Instruction Defendant Challenges Remains Part of the Record
That We Must Review for Sufficient Evidence of Causation

{22} “[O]ur review of the sufficiency of the evidence is analytically independent from
the issue of the defect in the jury instruction.” State v. Rosaire, 1996-NMCA-115, ¶ 20,
123 N.M. 250, 939 P.2d 597. We are nevertheless required to consider the sufficiency
of the evidence under the instructions given at trial in order to ensure that no double
jeopardy concerns are implicated in a retrial. Dowling, 2011-NMSC-016, ¶ 18; State v.
Mascareñas, 2000-NMSC-017, ¶ 31, 129 N.M. 230, 4 P.3d 1221 (holding that if the
appellate court determines that the evidence to support the defendant’s conviction was
insufficient, double jeopardy concerns bar retrial by the state). “If there [is] insufficient
evidence to support the [charge] for which [the d]efendant was convicted and
sentenced, the remedy [is] a discharge, not a new trial.” State v. Roper, 2001-NMCA-
093, ¶ 23, 131 N.M. 189, 34 P.3d 133. Therefore, our review for sufficiency of the
evidence “consider[s] all of the evidence in support of conviction under the [alleged]
erroneous jury instruction.” Mascareñas, 2000-NMSC-017, ¶ 32 (internal quotation
marks and citation omitted). “We do not evaluate the sufficiency of the evidence for
instructions that were not given to the jury.” State v. Ramos, 2013-NMSC-031, ¶ 30, 305
P.3d 921.

{23} Regarding instructional error, Defendant argues that the lack of UJI 14-251
NMRA (2000), 1 which defines causation in homicide cases, resulted in fundamental
error because, without that instruction, the requirement of proximate causation was not
defined for the jury. The instructions given in this case required the jury to find that
Defendant’s conduct “resulted in” Isaac’s death, and therefore required a finding that
Defendant was a but-for cause of Isaac’s death. As we will explain, the evidence
presented at trial failed to prove but-for causation beyond a reasonable doubt.

{24} Since we conclude that there was insufficient evidence to convict Defendant of
child abuse by medical neglect, we do not reach Defendant’s argument of instructional
error. This is because, even if we were to conclude that lack of UJI 14-251 resulted in
fundamental error, double jeopardy would bar retrial in this case. Dowling, 2011-NMSC-
016, ¶ 18 (explaining that to ensure a defendant is not tried twice for the same crime,
retrial is barred if we determine that insufficient evidence supported a conviction).

{25} The dissent would hold that sufficient evidence supported Defendant’s conviction
under the jury instruction given at trial, determine that “the district court’s instruction on
causation constituted reversible error,” and remand for a new trial. Diss. op. ¶¶ 66, 115.
Our analysis differs from that of the dissent because we conclude that, under the jury
instruction given at trial, the evidence presented was insufficient. This conclusion
renders an analysis of the jury instruction argument unnecessary. And because the
evidence was insufficient to support the conviction, remanding this case for retrial would
violate Defendant’s right to be free from double jeopardy.

1UJI 14-251 was amended after Defendant’s trial. See UJI 14-251 NMRA (2017). Unless indicated, all
references to UJI 14-251 are to the version in effect during Defendant’s trial.
{26} Likewise, because the evidence was insufficient to prove that Defendant’s
conduct resulted in Isaac’s death, we need not consider Defendant’s arguments
regarding mens rea. See Consaul, 2014-NMSC-030, ¶ 49 (holding that a charge of child
abuse “completely fails for lack of substantial evidence” without proof of causation, and
declining to address the defendant’s issues of mens rea).

B. The Evidence Was Insufficient to Prove That Defendant’s Medical Neglect
Caused Isaac’s Death

{27} Defendant argues that the evidence does not support his conviction for
intentional child abuse by endangerment resulting in the death of a child under twelve.
Specifically, Defendant argues that the evidence failed to establish that his conduct
placed Isaac in a situation that endangered his life or health, that his conduct resulted in
Isaac’s death, and that he acted intentionally. See UJI 14-623 NMRA (2015).

{28} “The test for sufficiency of the evidence is whether substantial evidence of either
a direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable
doubt with respect to every element essential to a conviction.” State v. Duran, 2006-
NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks and citation
omitted). “We view the evidence in the light most favorable to the State, resolving all
conflicts and making all permissible inferences in favor of the jury’s verdict.” Consaul,
2014-NMSC-030, ¶ 42 (internal quotation marks and citation omitted). “It is our duty to
determine whether any rational jury could have found the essential facts to establish
each element of the crime beyond a reasonable doubt.” Id. (internal quotation marks
and citation omitted). In undertaking this review, we “must take into account both the
jury’s fundamental role as factfinder in our system of justice and the independent
responsibility of the courts to ensure that the jury’s decisions are supportable by
evidence in the record, rather than mere guess or conjecture.” Flores, 2010-NMSC-002,
¶ 2.

{29} We focus only on the essential element of causation because, as we will explain,
the evidence presented did not establish that Defendant’s failure to call 9-1-1 resulted in
Isaac’s death. We evaluate the sufficiency of the evidence under the instructions given
to the jury, State v. Ramos, 2013-NMSC-031, ¶ 30, 305 P.3d 921, which required the
jury to find “beyond a reasonable doubt” that Defendant’s conduct “resulted in the death
of Isaac Arevalos[,]” see Section 30-6-1(D)(1), (H). This instruction is consistent with the
general requirement in criminal law that a defendant’s conduct be a but-for cause of the
prohibited result or, in other words, that the prohibited result would not have occurred
absent the defendant’s conduct. See State v. Montoya, 2003-NMSC-004, ¶¶ 11, 19, 22
& n.1, 133 N.M. 84, 61 P.3d 793 (explaining that a defendant’s conduct must generally
be a but-for cause of the prohibited result); cf. Burrage v. United States, 571 U.S. 204,
210-14 (2014) (considering the ordinary meaning and common understanding of
“‘results from’” to conclude that usage of the term in a statute imposed a requirement of
but-for causation).

{30} In Nichols, 2016-NMSC-001, ¶ 40, we held that a theory of medical neglect
required the state to present substantial evidence that the “medical neglect was at least
a significant cause of [the child’s] death.” As we explained, but-for causation in a
medical neglect case requires “medical evidence that if [the defendant] had obtained
medical care earlier, [the child] would have lived or at least would have had a
significantly greater chance of living—evidence that the alleged neglect actually
contributed to the tragic result.” Id.

{31} In Nichols, the defendant’s child died due to blood loss associated with blunt-
force abdominal trauma. Id. ¶¶ 2, 20. The state charged the defendant with several
counts of child abuse under an overarching theory that he inflicted the injuries on his
child and then failed to provide or obtain the medical care necessary to save the child’s
life. Id. ¶¶ 25-26, 46-47. The jury acquitted the defendant of having inflicted the initial
injuries but found him guilty of child abuse by medical neglect. Id. ¶¶ 25-26. The medical
experts testified that the cause of death was the blood loss from the abdominal trauma
and that, while survival of such an injury would be possible, it would be unlikely without
extensive medical intervention. Id. ¶¶ 41-42. This evidence did not shed light “on when
that intervention would have been necessary to save [the child] or give him an
appreciably better chance of survival” and left the jury “to speculate that if [the
defendant] had called 911 sooner, then perhaps the doctors would have had time to
diagnose [the child’s] condition and treat him successfully.” Id. ¶¶ 43-44. In Nichols we
concluded that evidence showing the child may have lived with earlier medical care was
insufficient to prove beyond a reasonable doubt that the defendant’s failure to obtain
that care resulted in the child’s death. Id. ¶¶ 44-45. As in Nichols, id. ¶¶ 39, 43-44, the
evidence in this case clearly established a causal connection between Isaac’s injuries
and his death but failed to establish a connection between his death and Defendant’s
delay in obtaining medical care.

{32} The medical experts in this case testified to Isaac’s various injuries, including
bruising, bleeding underneath the scalp, and subdural hemorrhages in several locations
around his head, as well as retinal hemorrhages in both eyes. Dr. Nienow testified that,
based on the appearance of the injuries alone, she could only say that they had
occurred within a week of Isaac’s death but that Isaac’s loss of consciousness indicates
the brain trauma occurred at that time.

{33} Multiple experts opined that the ultimate cause of Isaac’s death was the global
hypoxic-ischemic injury or, in other words, a lack of blood and oxygen to the brain. Dr.
Nienow explained that global hypoxic-ischemic injury results from brain trauma due to a
“whole cascade of events that causes further and further brain injury” because the
signals to breathe do not work, the child stops breathing effectively, and the brain is
then not oxygenated properly. She further testified that this progression is rapid, that
“[e]very second that this child is not presented to immediate medical attention is a
second that that child’s brain is dying[,]” and that the best way to stop this progression is
“to get the kid oxygen . . . [a]s soon as possible.”

{34} Both Vargas and Arevalos testified that Isaac was having difficulty breathing
when Vargas took Isaac from Defendant. Isaac’s respiratory rate was well below normal
when the paramedics arrived at the Arevalos home. The paramedics were able to bring
Isaac’s breathing up to a normal rate, and Dr. Nienow testified that this intervention
brought Isaac’s oxygen saturation up to 100 percent, at which point there was “no more
continued hypoxia.” Despite this, Dr. Nienow testified that the global hypoxic-ischemic
injury was already so widespread by the time the paramedics arrived that “the deed was
done.” All of this evidence indicates that when Isaac lost consciousness, he was in need
of immediate medical attention to address the progression of the hypoxic-ischemic
injury. However, none of the medical experts testified to a reasonable degree of medical
certainty that Isaac would have lived with earlier medical care.

{35} Dr. Hallstrom only testified that how soon medical care is provided could impact
the outcome for a person suffering from subdural hemorrhaging and loss of oxygen to
the brain, depending on the severity of the injury. Dr. Jarrell testified that patients with
diffuse axonal injuries such as Isaac’s generally have a seven to thirty percent chance
of surviving. She opined that such injuries require medical attention and that a delay in
medical attention “drastically reduce[s] . . . the chance of survival” but agreed that she
could not say “with any degree of medical certainty” that “earlier medical intervention
would have made a difference for [Isaac.]” Dr. Nienow testified more specifically that
“[t]here is a very real possibility that had [Isaac] presented for immediate medical
attention after the initial neurologic insult he would still be alive.” She further opined that
the delay in medical attention “took away that possibility” but did admit that she was “not
saying it is a medical certainty” that Isaac would be alive had he received immediate
medical attention. We agree with Defendant that the inability of the State’s medical
experts to testify to a reasonable degree of medical certainty that Isaac would have
lived with earlier medical attention is fatal to the State’s theory that Defendant caused
Isaac’s death by not calling 9-1-1 when Isaac was injured.

{36} Medical expert testimony given to a reasonable degree of medical certainty or
probability satisfies a “minimal standard of probability,” approximating a preponderance
of the evidence. Consaul, 2014-NMSC-030, ¶¶ 69, 73 (noting that “‘reasonable medical
probability’” is defined as “‘a showing that the injury was more likely than not caused by
a particular stimulus, based on the general consensus of recognized medical thought.—
Also termed reasonable medical certainty’” (quoting Black’s Law Dictionary 1380 (9th
ed. 2009))). Therefore, the medical experts in this case were not even able to opine that
it was more likely than not that Isaac would have lived with earlier medical care. At best,
Dr. Nienow provided testimony that there was a “very real possibility” that Isaac could
have lived with immediate medical attention, which is evidence that Isaac might have
survived had Defendant called 9-1-1 instead of Vargas. This is simply insufficient to
prove that Defendant’s conduct was an actual cause of Isaac’s death. See Consaul,
2014-NMSC-030, ¶ 69 (“We recognize that some of the medical opinions offered in this
case spoke only in terms of ‘possibilities’ or ‘concerns,’ which essentially proves
nothing.”); Nichols, 2016-NMSC-001, ¶¶ 44-45 (concluding that the state’s “suggestion
that ‘maybe’ or ‘perhaps’ something would or would not have happened, even if based
on evidence, is not probative of anything”). As we held in Consaul, if the state relies on
medical expert testimony to prove causation, those experts must at least offer opinions
on causation to a reasonable degree of medical certainty, even if the state presents
other “non-opinion evidence” of causation. 2014-NMSC-030, ¶ 73.
{37} The State contends that no such testimony is required, arguing that the evidence
that Isaac had a chance of survival which was foreclosed by Defendant’s failure to call
9-1-1 is sufficient to prove causation under Nichols and Montoya. In support of this
argument, the State relies both on Dr. Nienow’s testimony that Isaac had a “very real
possibility” of survival with immediate medical attention but that the delay “took away
that possibility” and on Dr. Jarrell’s testimony that a delay in medical care “drastically
reduce[s]” the chance of survival. The State does not contend that Defendant’s failure to
obtain medical care caused Isaac’s death. Instead, the State’s argument for sufficiency
of the evidence in this case is actually based on the State’s novel lost-chance-of-
survival causation theory: Defendant removed the possibility of Isaac’s survival. In other
words, the State argues that Defendant’s failure to act caused Isaac to lose any chance
he had of surviving. The State’s arguments are unavailing for two reasons.

{38} First, the State argues, quoting Nichols, 2016-NMSC-001, ¶ 40, that such
testimony proves Isaac “would have had a significantly greater chance of living” with
earlier medical attention, sufficient to prove that Defendant’s failure to call 9-1-1 was a
significant cause of Isaac’s death. We acknowledge this language in Nichols could be
read to indicate that the State was not required to present evidence that Isaac would not
have died absent Defendant’s medical neglect. But see id. (requiring evidence that the
child “would have lived or at least would have had a significantly greater chance of
living” to prove causation (emphasis added)). However, Nichols did not part from the
general principle of criminal law that a defendant’s conduct must at least be a but-for
cause of the death to be a significant cause of that death. See id. (citing UJI 14-251);
see also 1 Wayne R. La Fave, Substantive Criminal Law § 6.2(d), at 607 (3d ed. 2018)
(“Legal or ‘proximate’ cause, at the very least, requires a showing of ‘but for’ causation:
but for the omission the victim would not have died.” (footnote omitted)). To hold
otherwise would require less to prove causation in a criminal prosecution than is
required to prove causation for a claim of negligence in tort. See, e.g., Herrera v. Quality
Pontiac, 2003-NMSC-018, ¶¶ 6, 34, 134 N.M. 43, 73 P.3d 181 (explaining that a
negligence claim requires that a defendant’s conduct be both the proximate cause and
the but-for cause (i.e., “cause in fact”) of the injury).

{39} The dissent asserts that the majority departs from Nichols by creating a higher
causation standard. Diss. op. ¶¶ 100-101, 103, 105. The dissent reasons that because
Nichols states that causation is met if the victim would have had a “significantly greater
chance of living,” there was enough in the instant case to prove that Defendant’s failure
to call 9-1-1 caused Isaac’s death. Diss. op. ¶ 105-107. We hold differently because
when the Nichols Court explained causation in a medical neglect context, it did not
abandon the foundational criminal principle of but-for causation. We confirm here that
causation in a criminal medical neglect case must include but-for causation and no less.
We adhere to our long-established standard in this case by rejecting both the State’s
lost-chance-of-survival causation theory and the dissent’s view, either of which would
lower the causation standard and erode the requirement of but-for causation.

{40} Evidence that a child’s chance of survival was foreclosed by a defendant’s failure
to provide necessary medical care is not proof beyond a reasonable doubt that the
defendant’s conduct was a factual, but-for cause of that child’s death. See Montoya,
2003-NMSC-004, ¶ 19 (“[A] defendant is a but for cause of death if the death would not
have occurred at the time it did and in the manner it did but for defendant’s actions.”);
LaFave, supra, at 607 (“Failure on the part of a parent to call a doctor for a sick child
may often make the parent criminally liable for the child’s death; but only if the doctor
could have saved it, not if it would have died in spite of medical attention.”). We
therefore clarify that proof of causation under Nichols requires that the medical neglect
be a factual, but-for cause of the child’s death or, in other words, that the child would not
have died when and how the child died absent the defendant’s failure to obtain
necessary medical care.

{41} Second, the State relies on our sufficiency of the evidence review in Montoya,
which does not ultimately support the State’s theory in this case. Although the jury in
Montoya was given an instruction based on UJI 14-251, the trial judge orally instructed
the jury that the state was not required to prove beyond a reasonable doubt that the
defendant was a but-for cause of the victim’s death. 2003-NMSC-004, ¶¶ 11, 15-17, 22-
24. The error in Montoya resulted from the confusion created by these conflicting
directives to the jury, given that UJI 14-251 does require such proof of but-for causation.
Montoya, 2003-NMSC-004, ¶¶ 11, 15-17, 22-24. We concluded that the jury instruction
misstated the requirements of UJI 14-251 and constituted reversible error. Montoya,
2003-NMSC-004, ¶¶ 22-24.

{42} We acknowledge that our holding in Montoya might be read to accept a lost-
chance-of-survival theory as sufficient to show causation in a murder case. Id. ¶ 30
(holding that “[t]he expert medical testimony and the discussion about taking the victim
to the hospital combine to permit a conclusion that [the d]efendant’s actions were a
cause in the death of the victim”). However, Montoya identifies as error the failure to
clearly instruct the jury on but-for causation, explicitly holding that “UJI 14-251 requires
a showing of but for causation,” and rejecting the dissent’s suggestion that conduct
which makes any contribution to death or is a “substantial factor” is a cause of death. Id.
¶¶ 19-21. The ensuing sufficiency discussion makes no attempt to reconcile a lost-
chance-of-survival theory with the but-for causation requirement. Id. ¶¶ 27-30. Perhaps
this is because no such reconciliation is available—if a defendant denies a victim only a
possibility of survival, one cannot logically say that, but for the defendant’s conduct, the
victim would not have died.

{43} In Nichols, as discussed above, we affirmed the but-for causation requirement in
cases of child abuse causing death, holding that evidence of possible causation is
insufficient. 2016-NMSC-001, ¶¶ 39-40, 44-45 (rejecting as probative of causation
testimony “that ‘maybe’ or ‘perhaps’ something would or would not have happened”).
Nichols decided this issue in a scenario analogous to this case—where the defendant’s
reckless failure to obtain medical care is alleged to have resulted in a child’s death. Id. ¶
1. As such, we are bound by the precedent established in Nichols and so we follow that
standard in this case. We do not veer from Nichols by deciding whether Montoya’s
reasoning regarding a lost chance of survival might have some application in another
context. See, e.g., William Wilson, Murder by Omission: Some Observations on a
Mismatch Between the General and Special Parts, 13 New Crim. L. Rev. 1, 9-10, 17-22
(2010) (arguing that loosening causal nexus requirements in lost-chance-of-survival
cases, and similar cases where an omission has an unclear role in the victim’s death,
can be justified where the defendant intends to harm the victim but noting that “[i]t is far
easier to infer what is intended from actions than from omissions” and that “attitude of
mind designated as intention by the criminal law is more directly associated with and
evidenced by what we do than by what we do not do”); see also Bradley D. Price,
Taking a Chance with the Burden of Proof: The But-For Test in Homicide Case Law, 92
Iowa L. Rev. 703, 731-737 (2007) (arguing that Montoya and other similar cases are
best understood as “incomplete crimes” such as attempted murder or attempted
manslaughter).

{44} Nor are we persuaded by the dissent’s additional arguments in favor of
embracing a lost-chance-of-survival theory of causation here. The dissent asserts that
failing to recognize such a theory would incentivize would-be defendants to abstain from
seeking medical attention for a victim, to ensure that the survivability of an injury
remains uncertain. Diss. op. ¶ 113. We think this outcome is unlikely. Among other
things, the failure to act in response to the victim’s potentially fatal condition will often
hasten the victim’s death, or at least result in some measurable worsening of the
victim’s condition. Here, it appears the State might have charged Defendant with
causing great bodily harm to Isaac. The evidence presented at trial showed that, while
Isaac’s initial neurologic injuries may have been sufficient to cause his death,
Defendant’s inaction (precluding earlier medical intervention) probably worsened those
injuries. See UJI 14-131 NMRA (defining great bodily harm to include an injury that
results in permanent impairment of an organ); § 30-6-1 (E) (criminalizing as a first-
degree felony child abuse that results in great bodily harm). But the State did not pursue
this theory of prosecution, either in its charging decisions or in its questioning of the
expert witnesses. United States v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004) (“The
[C]ourt will not consider . . . issues . . . unaccompanied by some effort at developed
argumentation.”).

{45} We consider the dissent’s reliance on Alberts v. Schultz, 1999-NMSC-015, ¶ 30,
126 N.M. 807, 975 P.2d 1279⸻where we stated that “[a] physician should not be able
to avoid liability on the ground that it is uncertain what the outcome would have been”
(internal quotation marks and citation omitted)⸻to be a misapplication. Diss. op. ¶
113. Alberts was a tort case in which we recognized as compensable (in the context of
medical malpractice) the lost chance of a better outcome. 1999-NMSC-015, ¶ 21. In
such cases, the injury is not the ultimate injury or death but the lost chance of avoiding
injury, calculated as the “percentage value of the patient’s chance for a better outcome
prior to the negligent act.” Id. ¶¶ 21, 31. That theory of liability has no application here,
where the State was required to prove beyond a reasonable doubt its charge that
Defendant caused the ultimate result—Isaac’s death.

{46} We note that the State may also have sought to prove that Isaac would have
lived longer than he did following his loss of consciousness if Defendant had sought
medical attention. Montoya, 2003-NMSC-004, ¶ 19 (“[A] defendant is a but[-]for cause
of death if the death would not have occurred at the time it did and in the manner it did
but for defendant’s actions.” (emphasis added)). But the State did not pursue this
theory, either. The expert witnesses were not asked whether, in their opinions,
Defendant’s failure to obtain medical attention hastened Isaac’s death, nor does the
evidence otherwise support that conclusion. Though Dr. Nienow testified that “every
second counts” for preventing hypoxic cell death in the brain, no expert said to any
degree of medical certainty whether medical intervention (such as prompt oxygen
support) would have prolonged Isaac’s life. Instead, the experts testified that injuries
such as Isaac’s often result in rapid and irreversible hypoxia in the brain, even with
prompt medical intervention. Accordingly, intervention may or may not have made a
difference. Unsupported by testimony in the record are the dissent’s assertions to the
contrary. See, e.g., diss. op. ¶ 94 (“Dr. Hallstrom testified that the delay in medical care
affects, and ultimately determines, whether the injury is survivable.”).

{47} The evidence presented in this case failed to establish even that it was more
likely than not that Isaac would have lived, or lived longer, had he received immediate
medical attention. To convict Defendant, the jury was required to speculate that Isaac
might have survived had Defendant immediately called 9-1-1. Because the jury’s verdict
required such speculation, and because we conclude that the evidence was insufficient
to prove that Defendant’s conduct resulted in Isaac’s death, we reverse his conviction
for intentional child abuse resulting in the death of a child under twelve by
endangerment.

III. CONSPIRACY

{48} Defendant additionally challenges the sufficiency of the evidence supporting his
conviction of conspiracy to commit child abuse. Under Section 30-28-2(A), “[c]onspiracy
consists of knowingly combining with another for the purpose of committing a felony
within or without this state.” “Conspiracy is a specific intent crime” requiring a defendant
to “have the requisite intent to agree and the intent to commit the offense that is the
object of the conspiracy.” State v. Trujillo, 2002-NMSC-005, ¶ 62, 131 N.M. 709, 42
P.3d 814 (internal quotation marks and citation omitted). “The criminal agreement is the
gist of the crime of conspiracy. A conspiracy is complete when the agreement is
entered.” State v. Carrasco, 1997-NMSC-047, ¶ 39, 124 N.M. 64, 946 P.2d 1075
(citation omitted). “Conspiracy is seldom susceptible of direct proof and is usually
established by inference from the conduct of the parties. A formal agreement need not
be proved; a mutually implied understanding is sufficient to establish the conspiracy.”
State v. Torres, 2018-NMSC-013, ¶ 50, 413 P.3d 467 (internal quotation marks and
citation omitted).

{49} In this case, the State’s theory in support of the conspiracy charge was that
Defendant and Portillo

act[ed] in cahoots with one another. Two people who see a baby go down
and lose consciousness and don’t do anything meaningful to help him.
Two people who are responsible for major blunt force trauma to a baby’s
head and neither stops the other. Two people who did nothing to prevent a
baby’s death.
Now, they had intent to commit child abuse. . . . [E]ither one person
stood by while the baby was brutally beaten to death and they did nothing,
or they both did it. Either way, [Defendant], in this trial, is wholly culpable
for his choices.

Considering the evidence presented in this case, we conclude that it was insufficient to
support an inference that Defendant and Portillo formed a mutually implied agreement
to commit child abuse against Isaac for the following reasons.

{50} First, while the evidence supports that Isaac suffered serious injuries while in the
care of Defendant and Portillo, no evidence was presented from which the jury could
even infer that Defendant formed an agreement with Portillo to inflict those injuries. In
fact, the jury found Defendant not guilty of either causing the injuries to be inflicted or
permitting Portillo to do so.

{51} Second, the evidence presented was insufficient to support an inference that
Defendant and Portillo agreed to abuse Isaac through medical neglect. According to
Defendant’s testimony at trial and statements to police, Defendant and Portillo both
carried Isaac into the bathroom on Portillo’s suggestion to keep Isaac awake by
splashing water on him. Defendant testified that it was then his idea to call Vargas and
that he was the one to make the call. The only action that Defendant and Portillo took
together was taking Isaac to the bathroom, which does not reveal a mutually implied
agreement to commit child abuse by denying Isaac necessary medical care.
Furthermore, whether calling Vargas instead of 9-1-1 does or does not demonstrate
such an intent, there is no indication in the evidence presented that Portillo agreed with
Defendant’s decision to do so. We therefore agree with Defendant that there was
insufficient evidence to support that Defendant and Portillo formed an agreement,
mutually implied or otherwise, to commit child abuse against Isaac, and we reverse
Defendant’s conviction of conspiracy to commit child abuse.

IV. CONCLUSION

{52} Proving causation is challenging in cases such as this one, where Defendant’s
omission following a serious injury to a child is alleged to be a cause of the child’s
death. Concern that the guilty may go unpunished, even in tragic cases such as this
one, does not compel us to relax causation requirements where, as here, sufficient
proof of causation is lacking.

{53} For the foregoing reasons, we reverse Defendant’s convictions for intentional
child abuse resulting in the death of a child under twelve and conspiracy to commit child
abuse, and we dismiss the charges against Defendant.

{54} IT IS SO ORDERED.

BARBARA J. VIGIL, Justice

WE CONCUR:
MICHAEL E. VIGIL, Chief Justice

C. SHANNON BACON, Justice

JUDITH K. NAKAMURA, Justice, Retired,
sitting by designation

DAVID K. THOMSON, Justice,
dissenting in part and concurring in part

THOMSON, Justice (dissenting in part and concurring in part).

{55} “A person may cause evil to others not only by his actions but by his inaction,
and in either case he is justly accountable to them for the injury.” John Stuart Mill, On
Liberty 15 (Batoche Books 2001). I agree that “Isaac’s death was undeniably tragic,”
maj. op. ¶ 3, and I acknowledge that criminal liability for failing to seek or provide
necessary medical care “is a matter which often is not susceptible of easy proof.” 1 La
Fave, supra, § 6.2(d), at 607. However, I cannot agree with the majority’s determination
that the evidence presented did not establish that Defendant’s conduct resulted in
Isaac’s death. Maj. op. ¶ 29. Nor can I agree that, as courts of justice, instructing juries
that they must simply find the conduct “resulted in” the death adequately explains to
jurors how to navigate the complex issue of proximate cause, especially when they are
presented with two different causes of death. In this case, the State argued that
Defendant was guilty of Isaac’s death under two theories: (1) Defendant or Portillo (with
Defendant’s knowledge) directly caused the trauma to Isaac’s head; and/or (2)
Defendant failed to act, to get medical care for Isaac, after he was aware Isaac was
seriously injured. Defendant was convicted under the second theory.

{56} The jury found that Defendant “caused medical neglect” by not calling emergency
services or otherwise seeking medical attention for Isaac, and this omission, or failure to
act, “placed [Isaac] in a situation that endangered [his] life or health” and “resulted in”
Isaac’s death. See NMSA 1978, § 30-6-1 (2009) (defining the crime of child abuse or
abandonment and the levels of culpability). The majority however reverses the
conviction because it determines that there was sufficient evidence that Defendant’s
conduct amounted to medical neglect, but there was insufficient evidence that this
neglect resulted in Isaac’s death. They reach this conclusion even though Defendant
never sought medical attention for Isaac, when medical attention would have still made
a difference, and tried to avoid the authorities discovering that Isaac was in his care.
See maj. op. ¶¶ 29, 31, 38, 40.

{57} In so doing, the majority announces a higher standard of “but-for” causation than
has previously been required and applies that standard retroactively. See Nichols,
2016-NMSC-001, ¶ 40 (holding a defendant’s conduct may be a but-for cause of death
if there is testimony that the victim would have “lived or at least would have had a
significantly greater chance of living” (emphasis added)). The majority now requires that
to establish causation, a medical expert must testify that a victim would have lived if a
defendant had not delayed seeking, or failed to ever seek, medical care. See maj. op.
¶¶ 35, 40.

{58} Respectfully, I do not understand why the statute that criminalizes child abuse
resulting in the death of a child should be singled out for this higher causation standard,
nor do I see how this standard can be contained to the category of homicide.

{59} Most importantly, I do not agree with this abrogation of our precedent, which
disregards the general principle of criminal law that a particular defendant may be a
legal cause of death even though there are other significant causes that “contributed” to
the death. See, e.g., Montoya, 2003-NMSC-004, ¶ 19 (observing that “a defendant is a
but for cause of death if the death would not have occurred at the time it did and in the
manner it did but for defendant’s actions” (emphasis added)); Nichols, 2016-NMSC-001,
¶ 40 (requiring “substantial evidence that [the] neglect ‘resulted in’ . . . death or great
bodily harm, meaning that medical neglect was at least a significant cause of his death
or great bodily injury” (emphasis added)); State v. Simpson, 1993-NMSC-073, ¶ 14, 116
N.M. 768, 867 P.2d 1150 (observing that “[g]eneral principles of criminal law do not
require that a defendant’s conduct be the sole cause of the crime. Instead, it is only
required that the result be proximately caused by, or the ‘natural and probable
consequence of,’ the accused’s conduct” (quoting 1 Charles E. Torcia, Wharton’s
Criminal Law § 26, at 124-26 (14th ed. 1978)); see also Burrage v. United States, 571
U.S. 204, 215-16 (2014) (observing that legal authority exists for holding act or omission
to be a “cause-in-fact if it was a ‘substantial’ or ‘contributing’ factor in producing a given
result” but declining to adopt a permissive construction of the federal statute in that
case); 1 La Fave, supra, § 6.4(b), at 636-37 (recognizing that a defendant may be an
actual, but-for cause of death by “hastening” the victim’s death). The majority should not
use the phrase “when and how the child died,” see maj. op. ¶ 40, when reciting these
words means nothing, if they simultaneously eliminate the substance by rejecting the
“significant cause” test of but-for causation laid out clearly in our precedent.

{60} The majority concludes that the medical testimony was insufficient to establish
that “Defendant’s conduct was an actual cause of Isaac’s death” because none of the
medical experts testified “to a reasonable degree of medical certainty that Isaac would
have lived with earlier medical attention.” Maj. op. ¶¶ 31, 35, 36. In other words, for
there to be sufficient evidence to convict a defendant on a theory of medical neglect, the
rule announced by the majority requires the state to prove through medical testimony:
(1) that if the victim receives medical care before a specific point in time, the victim
would have lived; and (2) that prior to this point, the defendant would have realized the
victim required immediate medical intervention in order to live. Maj. op. ¶¶ 31, 35, 36.
Without this testimony, and evidence that a defendant was able to act and did not, the
majority would not allow a conviction to stand if it was based on a theory of medical
neglect. Maj. op. ¶ 38. Further, it is not clear whether the majority reserves this new
standard for only medical neglect child abuse cases or whether it is generally applicable
to homicides similar to the ones with which the defendant in Montoya was charged.

{61} I would not change the standard established by our precedent, that under a
theory of medical neglect, a defendant may be a “but-for” cause if that defendant’s
neglect is a “significant cause” of death. See maj. op. ¶¶ 1, 38 (describing the State’s
legal theory of culpable conduct as “Isaac died as a result of Defendant’s decision not to
call 9-1-1 after Isaac was injured”). Because the majority holds that unless a medical
expert testifies with medical certainty that a defendant’s intervention would have saved
a victim’s life there cannot be sufficient evidence to support a conviction, I must dissent.

{62} Further, when the resulting crime has more than one cause (regardless of
whether those causes are acts, omissions, or a combination of both), the complex
causation analysis must be explained to a jury. I believe that what is most problematic in
this case is not the sufficiency of the evidence, but instead, the district court’s
instructions to the jury concerning causation. By sidestepping the causation instruction,
the district court and the majority fail to take this opportunity to provide guidance to
courts and jurors that struggle with the difficult theory of medical neglect in child abuse
cases.

{63} Since medical neglect is a theory that rests on the failure to provide medical
intervention (an omission), the theory is usually predicated on an injury that results from
a separate primary injury. This case illustrates why medical neglect child abuse cases
require careful application of but-for and proximate causation analyses, because it is not
atypical that a defendant charged with medical neglect is also charged with a concurrent
act of abuse. 2 Nichols suggests, but does not hold, that instructing on proximate cause
is necessary. 2016-NMSC-001, ¶ 40. Although the district court was aware of Nichols, it
elected not to instruct the jury on proximate cause. Instead, the district court simply
instructed the jury that it had to find that defendant’s conduct “resulted in” Isaac’s death,
which the majority now condones. I would hold that moving forward this is unacceptable
in multiple cause cases and will explain how requiring a proximate cause instruction,
based on UJI 14-251, would have simplified and clarified the issue before the jury.

{64} I first turn to the issue of the jury instructions, followed by my analysis of the
sufficiency of the evidence, and conclude by addressing the perverse incentives created
by the majority’s new standard. Since I would hold that sufficient evidence supports
Defendant’s conviction and that the instructions constitute reversible error, I would not
substitute this Court’s judgment for the jury’s but would remand for a new trial.

I. The Causation Problem and the Jury Instruction

{65} “Technically speaking, everything that contributes to a given result is, as a matter
of fact, a cause of that result.” Bryan A. Garner, Garner’s Dictionary of Legal Usage 141
(3rd ed. 2011). However, “[i]n the end, legal terminology reflects the fact that courts are
concerned with determining ‘cause’ from the standpoint of attaching liability, not
ascertaining physical or medical cause.” Id. “The law has long considered causation a

2I acknowledge that care must be taken in child abuse cases where medical testimony is used to
establish that a defendant’s acts caused a particular injury. See Consaul, 2014-NMSC-030, ¶ 55.
However, the medical testimony on whether the failure to seek medical care was a significant cause of
death is a different nature, because it simply asks (regardless of who committed the act) whether medical
care could have made a difference after a defendant realizes that the child has been injured and requires
medical attention.
hybrid concept, consisting of two constituent parts: actual cause and legal cause.”
Burrage, 571 U.S. at 210. When, as here, a crime requires a specified result that is a
consequence of a particular defendant’s specified conduct, the “defendant generally
may not be convicted unless his conduct is both (1) [an] actual cause, and (2) [a] ‘legal’
cause (often called the ‘proximate cause’) of the result.” Id. (internal quotation marks
and citation omitted). A court’s function is to explain to twelve citizen jurors how a
concurrent cause based on neglect can be a legal cause of death.

{66} The majority correctly observes that, “[a]t the close of evidence, the State’s
overarching theory of the case was that ‘[e]ither [Defendant] beat that baby, they both
beat that baby, or one of them sat by and let it happen, and then they both denied him
medical care. Medical care that gave him a chance at surviving.” Maj. op. ¶ 15. The jury
acquitted Defendant of hitting Isaac or letting Isaac be hit; however, the jury convicted
Defendant for denying Isaac necessary medical care. Under the alternative theory,
Defendant was culpable because there was a point at which he recognized that medical
care was necessary and denied Isaac that care. This neglect “resulted in” Isaac’s death,
because he hastened Isaac’s death. In Nichols, the jury was similarly instructed, and
this Court deemed those instructions minimally sufficient. However, I do not agree that
the instructions here were adequate and would take this opportunity to prospectively
require trial courts to provide a proximate cause instruction in similarly complex cases.

{67} Defendant argued that the district court should have instructed the jury on
proximate cause, because the instructions given were legally insufficient based on the
State’s medical neglect theory of culpability. The majority dismissively references this
argument and concludes that “even if we were to agree that the absence of UJI 14-251
resulted in fundamental error” the opinion need not address it, “[b]ecause the evidence
was insufficient to prove that Defendant’s conduct resulted in Isaac’s death.” Maj. op. ¶
21. I disagree and believe that the opinion should clarify the complicated issue of
causation. The instruction here did not adequately explain how Defendant could be
culpable, could be a legal cause of Isaac’s death and how comparative causes are
handled. Moreover, I believe that the error was preserved, and therefore, that the jury
instructions should be reviewed for reversible error. State v. Benally, 2001-NMSC-033,
¶ 12, 131 N.M. 258, 34 P.3d 1134.

A. Preservation of the Question of Error

{68} “To preserve an issue for review it must appear that a ruling or decision by the
[district] court was fairly invoked.” Rule 12-321 NMRA.

{69} In an effort to resolve the question of how to instruct the jury on the theory of
medical neglect, the district court reviewed Nichols and stated, “a definition for medical
neglect . . . hasn’t been submitted, but I would suggest [that definition] may be
necessary to clarify that issue.” Defense counsel objected and argued that “the State
hasn’t presented adequate evidence that the failure to provide medical assistance
caused the death . . . [,] . . . and so if we’re going to add the definition of medical
neglect, we should also submit a jury instruction on the standard and definition for
causation [, UJI 14-251].” Faced with this objection, the district court concluded, “Uh-
huh. Well, we will just leave it out,” and unfortunately decided not to instruct on
proximate cause or the definition of medical neglect.

{70} Defendant’s objection fairly invoked a ruling by the district court not to instruct on
proximate cause when it was central to the State’s theory on which the jury convicted.
Therefore, I would review the instructions for reversible error, not fundamental error.
That said, I would hold that retrial is required even under the fundamental error standard
for the reasons that follow. State v. Osborne, 1991-NMSC-032, ¶ 40, 111 N.M. 654, 808
P.2d 624 (1991) (observing that “it is the duty of the court, not the defendant, to instruct
the jury on the essential elements of a crime” and holding that it is fundamental error to
fail to instruct on an essential element of a crime).

B. Standard of Review

{71} When reviewing jury instructions, this Court asks “whether a reasonable juror
would have been confused or misdirected by the jury instruction.” Benally, 2001-NMSC-
033, ¶ 12 (internal quotation marks and citation omitted). A “facially erroneous”
instruction is “an incurable problem and mandates reversal.” State v. Parish, 1994-
NMSC-073, ¶ 4, 118 N.M. 39, 878 P.2d 988. But if the instruction is subject to “more
than one interpretation, then the court must next evaluate whether another part of the
jury instructions satisfactorily cures the ambiguity.” Id. “[J]uror confusion or misdirection
may stem . . . from instructions which, through omission or misstatement, fail to provide
the juror with an accurate rendition of the relevant law.” Benally, 2001-NMSC-033, ¶ 12.
If “a reasonable juror would have been confused or misdirected” by the defective
instruction “reversible error arises.” Parish, 1994-NMSC-073, ¶ 4.

{72} I further observe that this Court previously stated, “It is humanly impossible to
create a written code that anticipates every eventuality.” Id. ¶ 25. The use of the uniform
jury instructions “does not preclude this Court from insuring that the rights of individuals
are protected,” if those instructions do not correctly state the law. Id. ¶ 26. I would hold
that juror confusion and misdirection occurred here because the district court failed to
properly instruct on proximate cause.

C. The Instruction on Child Abuse Resulting in Death by Medical Neglect

{73} Although the State presented evidence that Isaac suffered significant head
trauma, the jury necessarily determined that Defendant did not intentionally or
recklessly cause or permit that head trauma by acquitting Defendant on Count 1.
The jury was also instructed on a theory that there was a concurrent cause of
death, an omission, and they could convict on a theory of “medical neglect” if
they found:

1. [Defendant] caused medical neglect to [Isaac];
2. By engaging the conduct described in Paragraph 1, [Defendant]
caused [Isaac] to be placed in a situation that endangered the life
or health of [Isaac];
3. [Defendant] acted intentionally and without justification;
4. [Defendant]’s conduct resulted in the death of [Isaac];
5. [Isaac] was under the age of twelve (12);
6. This happened in New Mexico on or between the 20th day of
March, 2015 and the 25th day of March, 2015.

See UJI 14-623 NMRA.

1. The confusion created by not instructing on proximate cause

{74} The majority appears to be satisfied with allowing prosecutors in child abuse
resulting in death cases to continue to rely on the vague standard of “resulted in” when
the death results from multiple causes or actors. I would hold that this tolerates an
unacceptable level of confusion. The majority opinion does not clarify, as it should, that
in multiple actor cases in the killing of a child, the jury should be told actions and
inactions are treated equally, and each person is liable if their actions were a significant
cause of the death of the victim. The jury here received no guidance on “proximate
cause” when it was faced with two contributing causes, both of which contributed to one
death. Proximate cause is an “obscure” legal concept, which is selected by courts and
which requires a common sense explanation to jurors. See Joshua Dressler,
Understanding Criminal Law, § 14.03[A], at 180 (8th ed. 2018) (“The decision to attach
causal responsibility for social harm to one, rather than to another, factor is made in a
common sense manner, or by application of moral intuitions, public policy
considerations, and/or a sense of justice.”). For this reason, I believe that instructing the
jury that it may convict simply because it determines the conduct “resulted in” a victim’s
death is inadequate.

{75} If parent A strikes child C and the child dies, a direct application of “resulted in”
makes sense. In this example, there is only one cause of death. However, when a
second concurrent cause is introduced, as when parent A strikes child C and parent B
knows that the child is injured and later dies because parent B does nothing to provide
necessary medical care, our policy is to hold both parents equally culpable if the failure
to provide medical care is a significant cause. See Nichols, 2016-NMSC-001, ¶ 40. This
is a policy choice. Parent B did not act and was not the sole cause of death; however,
by failing to provide necessary medical care Parent B may be a significant cause of
death. Id. I would hold that the failure to instruct on this obscure concept, to provide an
accurate explanation of the legal requirements of factual and proximate causation,
creates reversible error. See Benally, 2001-NMSC-033, ¶ 12. This problem is clearly
resolved by providing the proximate cause instruction, UJI 14-251, as Nichols suggests.

{76} Medical neglect claims are usually precipitated by an accident or overt act that
results in a physical injury. Absent the initial injury, medical intervention would not be
required, and therefore, multiple causes are inherent in medical neglect prosecutions.
Montoya clearly illustrates the type of confusion that can result in a criminal case
concerning medical neglect. 3 Although it does not involve child abuse, Montoya is

3Everyone at trial in Montoya appears to have been confused about causation: the prosecution
improperly argued “but for” causation, the defense misrepresented the prosecution's burden under the
factually similar to this case in that there were concurrent actors with an act and an
omission that resulted in death. The victim was shot, not by the defendant, but by
another person. 2003-NMSC-004, ¶ 6. Like Isaac, the victim did not immediately
succumb to the initial injury. The defendant, who was aware of the gunshot wound,
drove the victim away from the hospital to a river and abandoned the vehicle and the
victim, who was still alive. Id. ¶ 7. The victim was discovered the next day, having
partially pulled himself out of the vehicle. Id. ¶ 8.The defendant was not charged for
shooting the victim, but-for the culpable act of electing not to seek medical attention.
This Court opined “[t]he expert medical testimony and the discussion about taking the
victim to the hospital combine to permit a conclusion that [the d]efendant’s actions were
a cause in death.” Id. ¶ 30 (emphasis added).

{77} The foundation for the Montoya Court’s reasoning dates back to Simpson, which
established that there may be more than one cause of death, so long as there is a
significant connection—if the result was a “natural and probable consequence of” a
defendant’s act (or omission). See Montoya, 2003-NMSC-004, ¶¶ 12, 24, 30; Simpson,
1993-NMSC-073, ¶ 14; see also UJI 14-251 NMRA (“There may be more than one
significant cause of death. If the acts of two or more persons significantly contribute to
the cause of death, each act is a significant cause of death.”).

{78} Applying the Montoya Court’s significant cause test of but-for causation, we know
that a parent is not relieved of culpability simply because they failed to act, when that
failure (or omission) significantly contributed to the child’s death. The Nichols Court
applied the significant cause test of but-for causation in the context of a medical neglect
child abuse prosecution, and stated that the jury must determine “that medical neglect
was at least a significant cause of [the victim’s] death.” Nichols, 2016-NMSC-001, ¶ 40.
The Nichols Court held the phrase “resulted in” to include “a significant cause.” Id. In
this case, the majority holds that the phrase “resulted in” includes “but-for cause” and
simultaneously reads “significant cause” out of “resulted in.” See maj. op. ¶¶ 30, 38.
This demonstrates the insufficiency of the instruction. In holding that there was
insufficient evidence in this case, the majority essentially holds that “resulted in” and
“but-for cause” are synonymous, but “resulted in” and “significant cause” are not. This is
why being satisfied with “resulted in” is so dangerous and providing UJI 14-251 is so
crucial. Defining a cause of death as “an act which, in a natural and continuous chain of
events, produces the death,” refines the concept of but-for causation and “incorporates
the notion of proximate cause and instructs the jury not to convict the defendant if he is
only at fault to an insignificant extent.” Simpson, 1993-NMSC-073, ¶¶ 11, 13.

{79} In closing argument, defense counsel conceded that but-for the failure to seek
medical attention Isaac’s chances of living were extinguished. The failure naturally
resulted in Isaac’s death. Yet, defense counsel shifted focus and argued that this failure
was insignificant, “[W]hat you heard is that there was a 70 to 93 percent chance that this
child was going to die anyway. . . . [W]hen you look at it . . . [,] 93 percent, not his fault.”
In other words, Defendant’s neglect was too insignificant to hold him criminally liable. I

instruction, and the district court was so confused about proximate cause it added its own instruction, that
also misapplied the standard. See Montoya, 2003-NMSC-004, ¶ 19.
cannot see how a reasonable juror could have parsed the causation question without
further instruction. The majority declined to review this issue because it determined that
insufficient evidence supported Defendant’s conviction, and therefore, retrial was
barred. However, I do not agree and so now turn to whether Defendant’s conviction was
supported by sufficient evidence. Because I would answer that question affirmatively, I
would reverse and remand for a new trial.

2. The confusion created by not defining medical neglect

{80} I note that the confusion created by this instruction is not limited to the problem
with causation. Additionally, the jury instructions did not describe any conduct or course
of conduct that the jury could find was medical neglect. The State simply defined the
“conduct” as “caused medical neglect.” This is not conduct and is maddeningly circular.
See UJI 14-623 (requiring the district court to “describe [the] conduct or course of
conduct alleged to have been child abuse” in element 1). The jury was left to ponder
what conduct constituted medical neglect, when this Court has stated:

Jurors should not be left free, let alone encouraged by the prosecutor,
each to go his or her own way when it comes to determining what criminal
conduct—if more than one act is alleged—caused the child’s harm. The
jury needs to agree unanimously on what conduct caused harm to the
child.

Consaul, 2014-NMSC-030, ¶ 25.

{81} Although Defendant’s desire to avoid discovery by authorities, his ineffective acts
in response to an injured child, and his general failure to seek immediate medical
attention may have been puzzled out by the jury in the context of trial, the conduct at
issue was not identified. The problem of discerning the culpable conduct was
compounded by the fact that the district court did not define medical neglect. Instead,
the district court let Dr. Nienow define medical neglect as the term is used in the
medical field: “Medical neglect means that it’s a failure of a caregiver to provide
appropriate medical treatment that could subsequently lead to significant harm or
potentially death. . . . [N]ot providing appropriate medical treatment for an injury or a
medical disease is medical neglect.” This definition is less stringent than the legal
definition suggested by Nichols, 2016-NMSC-001, ¶ 34 (“defining ‘medical neglect’ as
‘[f]ailure to provide medical, dental, or psychiatric care that is necessary to prevent or to
treat serious physical or emotional injury or illness’” (quoting Black’s Law Dictionary
1196 (10th ed. 2014)).

{82} Regardless of these other errors, what concerns me most is the failure to
adequately instruct on proximate cause, when the jury was required to determine
whether Defendant’s failure to seek medical attention was a significant cause of death.
See Nichols, 2016-NMSC-001, ¶ 40; Montoya, 2003-NMSC-004, ¶ 19; Simpson, 1993-
NMSC-073, ¶ 14. I turn now to why I must disagree with the majority’s sufficiency of the
evidence analysis.
II. SUFFICIENT EVIDENCE SUPPORTS DEFENDANT’S CONVICTION FOR
CHILD ABUSE

{83} The majority reverses Defendant’s conviction for intentional child abuse resulting
in the death of a child under the age of twelve by endangerment, because “if a
defendant removes only a possibility of survival, one cannot logically say that, but for
the defendant's conduct, the victim would not have died.” Maj. op. ¶ 42. To reach this
conclusion, the majority disregards the fact that under Nichols, “resulted in” includes the
significant chance test for but-for cause (causation-in-fact), and effectively disregards
the fact that a defendant may be a but-for cause by hastening a victim’s death so that it
occurs “when and how” it does. See maj. op. ¶ 40; see also Nichols, 2016-NMSC-001, ¶
40 (observing that “the State was required to put forth substantial evidence that [the]
neglect ‘resulted in’ [the] death . . . that medical neglect was at least a significant cause
of . . . death”); Montoya, 2003-NMSC-004, ¶ 19 (“[A] defendant is a but for cause of
death if the death would not have occurred at the time it did and in the manner it did but
for defendant’s actions.” (emphasis added)). The majority tacitly acknowledges that the
State established the factual basis of the crime, including that medical neglect occurred
and that it was intentional and only takes issue with the evidence supporting one
element, but-for causation (causation-in-fact). Maj. op. ¶ 42. The majority thus
determines that there was insufficient evidence to support the determination that
Defendant’s conduct “resulted in” Isaac’s death, and double jeopardy bars retrial. Maj.
op. ¶ 3; see also Dowling, 2011-NMSC-016, ¶ 18. Respectfully, I disagree. Although
Defendant had a duty, the opportunity, and the ability to do so, Defendant did nothing to
save Isaac. There was sufficient evidence through both witness and medical expert
testimony that Defendant’s conduct “resulted in” Isaac’s death.

A. Standard of Review: Sufficiency of Evidence

{84} I would hold that the jury was erroneously instructed. The majority does not.
Regardless, case law instructs that we nonetheless apply the same standard to review
the sufficiency of the evidence. This Court reviews a defendant’s claim of insufficient
evidence “under the [] instruction provided to the jury at trial,” to determine if retrial is
barred by double jeopardy protections. Dowling, 2011-NMSC-016, ¶ 18.

{85} “Evidence is viewed in the light most favorable to the guilty verdict, indulging all
reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.”
State v. Garcia, 2016-NMSC-034, ¶ 15, 384 P.3d 1076 (internal quotation marks and
citation omitted). This Court has also “made clear that because an appellate tribunal
does not enjoy the same exposure to the evidence and witnesses as the jury at trial, our
review for sufficiency of the evidence is deferential to the jury’s findings.” Id. (alteration
omitted) (internal quotation marks and citation omitted). “So long as a rational
jury could have found beyond a reasonable doubt the essential facts required for a
conviction, we will not upset a jury’s conclusions.” State v. Garcia, 2011-NMSC-003, ¶
5, 149 N.M. 185, 246 P.3d 1057 (internal quotation marks and citation omitted).
B. The State Put Forth Sufficient Evidence

{86} Isaac’s mother testified that she had been expecting Defendant and Portillo (who
had been watching him the last few days) to bring Isaac home on the evening of March
24, 2015, (according to a phone call around dinner time) but even though they said they
were bringing him, they did not. She did not hear from them until the early morning
hours of March 25, after Isaac had experienced a significant blunt-head trauma, which
ultimately produced a cascade of symptoms that resulted in his death. There were
different theories of how Isaac received the primary injury, his significant head trauma.
However, even if we accept Defendant’s explanation, there is still sufficient evidence to
support a conviction.

{87} To explain the blunt-head trauma Defendant testified that he went to sleep
around two in the morning on March 25, 2015, and “was awakened by [a] crash . . . of
someone falling.” Defendant explained that Isaac had fallen between the night stand
and his bed. Defendant thought that “he had hit his head hard.” He picked Isaac up and
put him on the bed; Isaac was not crying, “[h]e seemed dazed, confused[,] . . . [h]is eyes
were open, and then he would fall back asleep and he would close his eyes.” Defendant
and Portillo took Isaac to the bathroom to splash water on his face, but then Defendant
left Isaac with Portillo to get ready to go back to bed. Defendant was “freaked out,” but
testified that he called Isaac’s mother who told him to bring Isaac to her. That phone call
occurred around 4:35 in the morning.

{88} The jury made a determination of Defendant’s credibility, including his
inconsistent statements to police. Defendant’s versions of the facts changed more than
once. One time, he said that Isaac rolled off the bed and hit the table. Another time, he
said Isaac hit the floor. One time, he said that he immediately took Isaac to Vargas.
Another time, he said that he put Isaac on the bed. Yet another time, he said that before
he took Isaac to Vargas he gave him a bath. The timeline of the evening was presented
to the jury through the perspectives of the witnesses. The jury could have reasonably
concluded that the original injury was survivable without delay, but-for Defendant’s
conduct. There was evidence that Defendant’s primary concern was avoiding discovery
by law enforcement, and this motivated his conduct, which delayed medical attention for
the injury until it foreclosed the chance Isaac would survive.

{89} When Defendant dropped off Isaac, Defendant told Vargas “he’s lifeless, and I
don’t know what to do[,] . . . [j]ust don’t tell the cops that we had the baby, because if
you tell the cops, they’re going to call [Children, Youth & Families Department] on you,”
and he left.

{90} What is critical in the eventual causation analysis, is that Isaac did not succumb
immediately to the trauma. From the moment of impact that caused the injury, blunt-
head trauma, Isaac’s brain began to swell, which caused a disruption and a lack of
oxygen to Isaac’s brain over time. Ultimately, this continually increasing lack of oxygen
killed Isaac. See maj. op. ¶ 13-14. Defendant clearly knew Isaac was injured. See maj.
op. ¶ 10. Dr. Nienow testified that Defendant’s actions to “revive” Isaac by shaking or
splashing water on him, are never an effective or appropriate medical treatment for a
loss of consciousness. Finally, it was clear Defendant’s most urgent concern was
avoiding the notice of authorities who might question where Isaac was when he was
injured.

{91} Even if we presume that the jury did not rely on evidence that the injury occurred
before Isaac “hit his head” when he fell out of bed, Defendant’s testimony entitles the
jury to infer that Defendant was immediately aware of Isaac’s head injury and knew that
Isaac needed medical attention but chose not seek medical attention for Isaac. See
State v. Garcia, 2016-NMSC-034, ¶ 15.

{92} Dr. Hallstrom, a neuroradiologist, looked at images taken after Isaac reached the
hospital and determined that Isaac was suffering from a subdural hemorrhage, bleeding
inside his skull that increased the pressure on his brain and affected the ability of his
heart and lungs to deliver oxygen to the brain. By the time the test was taken, Isaac was
suffering from “global hypoxic ischemia,” oxygen deprivation; and Dr. Hallstrom testified
that the delay in medical care affects, and ultimately determines, whether the injury is
survivable, produces permanent brain damage, or results in death.

{93} Dr. Nienow, a child abuse pediatrician, testified, according to the medical history
she received, that by the time the ambulance arrived to transport Isaac to the hospital,
Isaac was “unresponsive,” had a “very poor neurological exam,” and was experiencing
“agonal breathing . . . kind of like end-of-life breathing” that was “very ineffective . . . and
very infrequent.” When asked how to “stop the progression of [oxygen deprivation],” Dr.
Nienow responded, “the best way . . . is to get the kid oxygen[,] . . . [a]s soon as
possible,” which the emergency medical technicians (EMTs) did while they transported
Isaac, whose oxygen level went up to one hundred percent while his breath was being
assisted. While at the hospital, Isaac regained consciousness, but his condition
continued to deteriorate, because he had significant brain trauma. Dr. Nienow stated
that in her experience the described circumstances of Isaac’s injury would not typically
result in injuries that she observed.

{94} When asked about the length of time it takes for the “cascade of horrible” to
occur, from the time the trauma occurs to death, Dr. Neinow testified that it depends on
the severity of the trauma, which in this case, she understood to be pretty severe. She
continued, “you cannot go without oxygen to your brain . . . for more than six minutes
[without permanent damage],” and that the time it takes for a person suffering from
oxygen deprivation to receive treatment is crucial to their survival. Dr. Nienow
concluded that by “the time [EMTs] arrived[,] . . . the deed was done.”

{95} In this case, based on the medical testimony, the jury was entitled to reasonably
infer that during the time period before the deed was done, before the EMTs arrived, the
injury was survivable, or at least, if medical attention had been sought, Isaac would
have had a significantly greater chance of surviving. See Nichols, 2016-NMSC-001, ¶
40; Montoya, 2003-NMSC-004, ¶ 19. This is precisely the type of testimony that the
Nichols Court determined was absent, which could have proved that the victim had a
significantly greater chance of recovery, “an appreciably better chance of survival.”
Nichols, 2016-NMSC-001, ¶¶ 40, 43 (opining that if the medical experts had testified
“that two hours, one hour, or even twenty minutes would have made a material
difference in [the victim’s] chance of survival, then the jury would have had some factual
basis for its decision to convict”).

{96} Dr. Nienow opined that although she had seen nonmedical professionals place
children in showers to try to revive them, “[i]t’s never effective.” Rather she stated
directly, “[t]here is a very real possibility that had [Isaac] presented for immediate
medical attention after the initial neurologic insult he would still be alive. There are
plenty of children who have traumatic brain injuries, both accidental and non-accidental,
who, given immediate medical attention, survive those injuries.” (Emphasis added.) It is
also significant that Dr. Nienow testified that what was concerning was the “extended
length of time in which [Isaac could not] be revived where no medical attention was
sought.” In her opinion, although caregivers may understandably “freak out[,] . . .
[t]hey’re not going to allow” a child to remain unresponsive for “minutes, upon minutes,
upon minutes [without seeking medical assistance].” When asked whether the delay in
seeking medical attention “foreclosed the possibility” of survival, Dr. Nienow answered
with certainty, “It took away that possibility, yes.”

{97} The jury properly determined the credibility of the various witnesses and
reviewed all of the timelines presented by the various parties. Based on the evidence
presented to the jury, I cannot say that a rational jury could not have found the essential
facts necessary to determine that Defendant’s medical neglect resulted in Isaac’s death.
I would not upset the jury’s conclusion. See Garcia, 2011-NMSC-003, ¶ 5.

III. ISSUES WITH THE MAJORITY’S NEW TEST

{98} Instead, of giving deference to the factfinder and indulging reasonable inferences
that Defendant intentionally took Isaac on a circuitous path away from, rather than
toward, medical attention in an effort to evade discovery, the majority announces a new
standard for satisfying causation. The new standard requires that the state produce
medical expert testimony that “to a reasonable degree of medical certainty that [the
victim] would have lived with earlier medical intervention.” Maj. op. ¶ 14. By requiring a
showing that the victim “would have lived,” if medical care was provided, the majority
creates a standard that the neglect must be the sole cause of death. This elevated
causation requirement overrules prior case law, announces a new standard, and
retroactively applies it.

{99} Further, requiring a medical expert to opine—to “a reasonable degree of medical
certainty”—that but-for the failure to seek medical attention a victim would not have died
conflates the standard of expert reliability with the standard of proof. Most significantly, it
also ignores the Nichols requirement that the state only needs to show the victim had a
significantly greater chance of living.

A. The “Would Have Lived” Standard

{100} Since the injury or illness that causes death is always a concurrent cause of
death in a prosecution premised on medical neglect, the jury is required to determine
that the omission or failure to act was a significant cause of the victim’s death. See
Nichols, 2016-NMSC-001, ¶ 40; Montoya, 2003-NMSC-004, ¶ 19. This is consistent
with Simpson, which reviewed the causation requirements under the vehicular homicide
statute and determined that that a defendant’s culpable act cannot be an insignificant
cause of the victim’s death, even if it may be a but-for cause. See Simpson, 1993-
NMSC-073, ¶¶ 13-14.

{101} The majority’s “would have lived” standard negates the “significant cause”
standard and elevates the quantum of proof required by our case law. I believe it sets
an unachievable evidentiary standard. The possibility that a defendant is culpable
because the identified conduct is a significant cause of death is carved out, and a
defendant must now be the sole cause of death. This majority fails to justify this
departure from precedent. See State v. Montoya, 2013-NMSC-020, ¶ 40, 306 P.3d 426
(“When deciding whether to overrule our own precedents, this Court considers such
common-sense factors as whether the precedent is a remnant of abandoned doctrine,
whether the precedent has proved to be unworkable, whether changing circumstances
have deprived the precedent of its original justification, and the extent to which parties
relying on the precedent would suffer hardship from its overruling.” (internal quotation
marks and citation omitted)).

{102} The standard announced today, that a defendant cannot “be liable for [a] victim’s
death [if] he would have probably died anyway,” has been rejected. See Montoya, 2003-
NMSC-004, ¶ 19 (“[W]here death results from multiple causes, an individual may be a
legal cause of death even though other significant causes significantly contributed to the
cause of death. Thus, even if the victim is at death’s door, a defendant is liable for the
victim’s death if his act hastens the victim’s death. (internal quotation marks omitted));
State v. Munoz, 1998-NMSC-041, ¶¶ 20-22, 126 N.M. 371, 970 P.2d 143 (holding that
under the vehicular homicide statute a “cause of death [is] an act which, in a natural and
continuous chain of events, produces the death [unless the defendant] is only at fault to
an insignificant extent”). I note that the Munoz Court declined “to speculate what
percentage of fault is ‘significant’ or insignificant’ because that determination is to be
made by the jury.” Munoz, 1998-NMSC-041, ¶¶ 20-22. “The jury need not ascertain a
numerical percentage of fault; rather, its verdict is its answer to the question of whether
the defendant was at fault to a significant extent.” Id. ¶ 22.

{103} The majority however has decided to remove from the jury the decision of
whether a cause was a significant cause. It does so by disregarding evidence, which
under Nichols would be sufficient to establish when “intervention would have been
necessary to save [the victim] or give him an appreciably better chance of survival.” See
Nichols, 2013-NMSC-001, ¶ 43; see also maj. op. ¶¶ 31, 40. This case is factually more
like Montoya where the evidence established that failure to timely provide medical care
foreclosed the possibility that the victim would survive. Regardless, this case does not
suffer the evidentiary deficiencies identified by Nichols.

{104} When asked whether the delay in seeking medical attention “foreclosed the
possibility” of survival, Dr. Nienow answered with certainty, “It took away that possibility,
yes.” I cannot say that the jury did not reasonably conclude, based on the medical
testimony, that the injury, as it progressed from trauma to brain swelling, caused an
increasing deprivation of oxygen to the point that ultimately, by the time Isaac was seen
by medical professionals, his opportunity to survive had been foreclosed. Asked
whether a child who has this type of head trauma, with the accompanying cascade of
systemic problems, would survive without medical attention, Dr. Nienow replied no.
Thus, if you find a child in Isaac’s condition and you do nothing will that child die? Yes. 4

{105} A reasonable jury could have concluded, based on the testimony presented, that
Isaac’s life was not irretrievable when Defendant first had knowledge of the severity of
the injury; Isaac could have survived. A reasonable jury could also have concluded that
Defendant’s conduct foreclosed that possibility. This evidence “raised the potential that
the victim might have been taken to the hospital and furthermore, that [d]efendant
removed all hope of this option by kidnaping him, driving him away and leaving him to
die.” Montoya, 2003-NMSC-004, ¶ 28.

{106} The majority attempts to limit the application of Montoya because that sufficiency
review was done under erroneous instructions that misstated the requirements of
proximate cause pursuant to UJI 14-251. See maj. op. ¶ 41. Montoya’s discussion of
UJI 14-251, regardless of how you view it, does render the analysis of the sufficiency of
the evidence of causation inapposite, particularly because but-for cause is still required.
Montoya is directly on point because it establishes: (1) the jury should be given a proper
proximate cause instruction, such as UJI 14-251; (2) the state is not required to prove
the victim would have survived with medical intervention for a defendant to be culpable;
and (3) the district court was incorrect when it stated that the state did not need to prove
but-for causation. Montoya establishes that if A shoots B, and C drives B around instead
of taking him to the hospital, C is culpable as a but-for cause of death; the law does not
require that C be the but-for cause of death. C is culpable if the state establishes that B
had a “significantly greater chance of living,” even if B is at death’s door. A medical
expert does not need to testify that original injury is absolutely survivable if medical
intervention had been provided. The facts must simply prove the victim’s life was not
irretrievable at the time of the direct injury. In fact, the majority disregards the causation
standard applied by Nichols and the testimony therein specified to meet the sufficiency
standard, that there was a period of time when Isaac was in Defendant’s care, that
Isaac’s life was not irretrievable and medical intervention would have given Isaac a
significantly greater chance of survival. Therefore, I cannot agree with the majority’s
standard, which is tantamount to holding that no reasonable juror could have found that

4The questioning of the medical expert in Montoya is strikingly similar:

Q: . . . in your opinion do you think it is more likely that he would have survived. Or more
likely that he would have died anyway if he had been taken straight to the hospital?
A: I think it was still more likely that he would have died even if he would have been taken
to the hospital.
Q: Okay, But, again, I gather you agree that being taken away from a hospital guaranteed
his death?
A: Yes. Without medical treatment the wounds that were inflicted upon him would have
resulted in his death.

Montoya, 2003-NMSC-004, ¶ 27.
Isaac had a chance of living, even if he had received immediate, appropriate medical
attention.

B. The Reasonable Degree of Medical Certainty Standard

{107} In addition, the majority also holds that medical experts must testify “to a
reasonable degree of medical certainty that Isaac would have lived with earlier medical
attention.” Maj. op. ¶ 35. As the Third Circuit has explained that “the phrase ‘with a
reasonable degree of medical certainty’ is a useful shorthand” to the extent that it
expresses “some basis for both the confidence with which [an expert’s] conclusion is
formed, and the probability that [the expert’s] conclusion is accurate.” Schulz v. Celotex
Corp., 942 F.2d 204, 208 (3d Cir. 1991) (internal quotation marks and citation omitted).
“To that extent . . . [the phrase] is helpful in forestalling challenge to the admissibility of
expert testimony.” Id. However, the Third Circuit cautions that (1) courts should be wary
of requiring the “incantation” of the shorthand and (2) using “the failure to voice it . . . as
a basis” for excluding expert testimony without actually analyzing the “testimony itself.”
Id.

{108} The phrase “to a reasonable degree of medical certainty” should not be a
prerequisite for establishing causation. Although doctors or medical experts may use
“phrases like ‘to a reasonable medical probability’ or ‘to a reasonable medical certainty,’
[these] phrases [only] demonstrate a sufficient degree of conviction to be probative,”
and are “terms of art in the law that have no analog for a practicing physician.” Consaul,
2014-NMSC-030, ¶ 69 (citing John B. Wong, et al., Federal Judicial Center, Reference
Manual on Scientific, Evidence, Reference Guide on Medical Testimony, 691, 693 (3rd
ed. 2011)). The term simply satisfies a “minimal standard of . . . admissibility, that an
opinion is more likely than not true.” Id. As such, I do not see that requiring the medical
expert to use the phrase is meaningful after the testimony has been deemed
admissible. Reviewing the record, the medical experts clearly offered their opinions with
conviction that the opinions were more than likely accurate based on their expertise,
which is all that is required.

{109} Requiring a medical expert to testify to a reasonable degree of medical certainty
that a victim would have lived “would seriously mislead the jury as to the nature of the
expertise involved” and impinge upon the ultimate question of the significance of the act
or omission as a cause of death. Cf. United States v. Glynn, 578 F. Supp. 2d 567, 574-
75 (S.D.N.Y. 2008) (precluding a ballistics expert from testifying to “a reasonable
degree of . . . certainty” because it would mislead the jury and limiting testimony to
terms similar to “more likely than not”). Medicine is not directed toward accurately
calculating the probability of survival based on an unknown universe of knowable
variables, which is what the majority’s standard suggests—that medicine makes it
possible to calculate survivability with a degree of certainty. The question of whether a
cause is a significant cause of death is properly left to the jury. Munoz, 1998-NMSC-
041, ¶¶ 20-22.

{110} The jury also was presented evidence that Defendant did what the defendant in
Montoya did, neither took a step toward actually getting the injured victim necessary
medical attention. If a parent or person who has a duty to care for a child does nothing
when they recognize that the child has a severe injury, it is not speculative to infer that
the child’s opportunity to obtain medical care is foreclosed. Here medical testimony
established that doing nothing “certainly” foreclosed the chance to live. The question the
majority demands—“Would Isaac have lived with certainty?”—is not the standard. It was
not the requirement of Montoya, and this evolution will bear dire consequences on
criminal prosecution of child abuse resulting in death due to neglect. It is necessary at
this point to apply common sense. A lawyer understands that asking the question “To a
reasonable degree of medical certainty would the victim have lived without medical
intervention?” is intended to establish the significance of the failure to provide medical
care. However a doctor hearing that question will view it not as a matter of statistics or
probability but one of medicine and thus find it impossible to answer. Our case law does
not require such medical certainty; it only requires that a defendant be shown to
foreclose any chance of survival by not seeking medical attention. Reexamining
Montoya in light of the majority’s new rule shows the consequence of this new
requirement. In Montoya, the state would find it difficult to find an expert to opine that a
victim shot in the head “would have survived the gunshot wound to a reasonable degree
of medical certainty,” if the Defendant had taken him to the hospital and not left him in
the car. Yet, this is what the majority now demands.

C. Additional Consequences of the Majority’s Holding

{111} I am also concerned that the opinion will create a number of perverse incentives.
First, it appears to incentivize an abuser to deny a victim medical care. In the absence
of any medical care, the question of when any injury would have been survivable (and
at what point the injury was certainly fatal) becomes more difficult, if not impossible, to
answer with any degree of certainty. We do not allow such an outcome in the civil
context, and it seems more abhorrent in the context of abuse of a child. See Alberts v.
Schultz, 1999-NMSC-015, ¶ 30, 126 N.M. 807, 975 P.2d 1279 (“[T]he physician should
not be able to avoid liability on the ground that it is uncertain what that outcome would
have been.” (internal quotation marks and citation omitted)). The best way an abuser
can avoid proof that it is “a certainty” a child would have lived, is to ensure that he or
she does not by foreclosing any medical response. The more traumatic the original act
the less likely the state will prove that with medical care the victim would have lived.

{112} Second, I do not believe that the majority’s heightened standard is necessarily
limited to medical neglect, child abuse cases, and so it is absolutely unclear to what
degree the majority is changing precedent without providing any justification for
overruling, abrogating, or unsettling what has been a settled standard in concurrent-
actor criminal prosecutions based on medical neglect such as Montoya. See State v.
Montoya, 2013-NMSC-020, ¶ 40 (stating some commonsense factors that this Court
considers before deciding to disturb settled precedent).

IV. CONCLUSION

{113} Applying the proper deferential standard of review, I would hold that, based on
the instructions given, sufficient evidence supported Defendant’s conviction of child
abuse resulting in the death of a child. However, since I believe that the district court’s
instruction on causation constituted reversible error, I would remand for retrial on this
charge, but I agree with the majority’s reasoning and conclusion that Defendant’s
conviction of conspiracy to commit child abuse should be vacated.

DAVID K. THOMSON, Justice