2019 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 6 - Crimes Against Children and Dependents
Section 30-6-1 - Abandonment or abuse of a child.

Universal Citation: NM Stat § 30-6-1 (2019)

A. As used in this section:

(1) "child" means a person who is less than eighteen years of age;

(2) "neglect" means that a child is without proper parental care and control of subsistence, education, medical or other care or control necessary for the child's well-being because of the faults or habits of the child's parents, guardian or custodian or their neglect or refusal, when able to do so, to provide them; and

(3) "negligently" refers to criminal negligence and means that a person knew or should have known of the danger involved and acted with a reckless disregard for the safety or health of the child.

B. Abandonment of a child consists of the parent, guardian or custodian of a child intentionally leaving or abandoning the child under circumstances whereby the child may or does suffer neglect. A person who commits abandonment of a child is guilty of a misdemeanor, unless the abandonment results in the child's death or great bodily harm, in which case the person is guilty of a second degree felony.

C. A parent, guardian or custodian who leaves an infant less than ninety days old in compliance with the Safe Haven for Infants Act [Chapter 24, Article 22 NMSA 1978] shall not be prosecuted for abandonment of a child.

D. Abuse of a child consists of a person knowingly, intentionally or negligently, and without justifiable cause, causing or permitting a child to be:

(1) placed in a situation that may endanger the child's life or health;

(2) tortured, cruelly confined or cruelly punished; or

(3) exposed to the inclemency of the weather.

E. A person who commits abuse of a child that does not result in the child's death or great bodily harm is, for a first offense, guilty of a third degree felony and for second and subsequent offenses is guilty of a second degree felony. If the abuse results in great bodily harm to the child, the person is guilty of a first degree felony.

F. A person who commits negligent abuse of a child that results in the death of the child is guilty of a first degree felony.

G. A person who commits intentional abuse of a child twelve to eighteen years of age that results in the death of the child is guilty of a first degree felony.

H. A person who commits intentional abuse of a child less than twelve years of age that results in the death of the child is guilty of a first degree felony resulting in the death of a child.

I. Evidence that demonstrates that a child has been knowingly, intentionally or negligently allowed to enter or remain in a motor vehicle, building or any other premises that contains chemicals and equipment used or intended for use in the manufacture of a controlled substance shall be deemed prima facie evidence of abuse of the child.

J. Evidence that demonstrates that a child has been knowingly and intentionally exposed to the use of methamphetamine shall be deemed prima facie evidence of abuse of the child.

K. A person who leaves an infant less than ninety days old at a hospital may be prosecuted for abuse of the infant for actions of the person occurring before the infant was left at the hospital.

History: 1953 Comp., § 40A-6-1, enacted by Laws 1973, ch. 360, § 10; 1977, ch. 131, § 1; 1978, ch. 103, § 1; 1984, ch. 77, § 1; 1984, ch. 92, § 5; 1989, ch. 351, § 1; 1997, ch. 163, § 1; 2001, ch. 31, § 9; 2001, ch. 132, § 9; 2004, ch. 10, § 1; 2004, ch. 11, § 1; 2005, ch. 59, § 1; 2009, ch. 259, § 1.

ANNOTATIONS

Cross reference. — For jury instructions to be given in abandonment and abuse or neglect of a child, see UJI 14-606 to 14-607 NMRA.

The 2009 amendment, effective June 19, 2009, added Subsection J.

The 2005 amendment, effective June 17, 2005, added Subsections F, G, and H to define negligent abuse of a child that results in death and the intentional abuse of a child twelve to eighteen years that results in death as first degree felonies and the intentional abuse of a child less that twelve years that results in death as a first degree felony resulting in the death of a child.

The 2004 amendment, effective July 1, 2004, added a new Subsection F; designated the last paragraph of Subsection D as a new Subsection E; and redesignated former Subsection F as Subsection G.

Meaning of "negligently". — The criminal negligence articulated in 30-6-1(A)(3) NMSA 1978 means "reckless disregard" and what has been called "criminally negligent child abuse" should be labeled "reckless child abuse" without any reference to negligence. The jury should be instructed with this terminology alone. State v. Consaul, 2014-NMSC-030, overruling in part State v. Schoonmaker, 2008-NMSC-010, 143 N.M. 373, 176 P.3d 1105.

Sufficient evidence. — Where defendant drove a pickup toward a group of children who were trick-or-treating on Halloween; the chaperone pushed the children out of the way but was struck and killed; the group was visible to motorists; and defendant altered defendant's course and drove toward the group and increased defendant's speed, defendant's conviction of intentional child abuse by endangerment was supported by substantial evidence. State v. Melendrez, 2014-NMCA-062, cert. denied, 2014-NMCERT-006.

Sufficient evidence of child abuse. — Where defendant was charged with criminal sexual penetration of a minor and child abuse, and where the state relied on testimony elicited from the victim that defendant grabbed her forcefully by the arm, threw her onto the ground, and pushed and kicked her when she stood up, that she was fourteen years old and that these events occurred in New Mexico two years earlier, there was sufficient evidence to prove beyond a reasonable doubt that defendant intentionally or with reckless disregard and without justification caused the victim to be placed in a situation which endangered her life or health. State v. Garcia, 2019-NMCA-056, cert. denied.

Circumstantial evidence. — A properly instructed jury may be justified in returning a guilty verdict based primarily on evidence that the defendant had the best opportunity to inflict the injury. State v. Sheldon, 1990-NMCA-039, 110 N.M. 28, 791 P.2d 479, cert. denied, 110 N.M. 44, 791 P.2d 798, and cert. denied, 498 U.S. 969, 111 S. Ct. 435 (1990).

Evidence insufficient. — Mere proximity to a dangerous situation is insufficient to support a conviction for child abuse by endangerment. State v. Trujillo, 2002-NMCA-100, 132 N.M. 649, 53 P.3d 909, cert. denied, 132 N.M. 674, 54 P.3d 78.

Attempt. — There is such a crime as attempt to commit child abuse when the theory of the case is intentional child abuse. State v. Herrera, 2001-NMCA-073, 131 N.M. 22, 33 P.3d 22, cert. denied, 131 N.M. 64, 33 P.3d 284.

Criminal negligence. — The mens rea element of negligence in the child abuse statute requires a showing of criminal negligence instead of ordinary civil negligence. To satisfy the element of negligence in Section 30-6-1 NMSA 1978 requires proof that the defendant knew or should have known of the danger involved and acted with a reckless disregard for the safety or health of the child. Santillanes v. State, 1993-NMSC-012, 115 N.M. 215, 849 P.2d 358.

Failure to instruct on the legal definition of "reckless disregard" as the applicable standard or criminal negligence was fundamental error. State v. Mascarenas, 2000-NMSC-017, 129 N.M. 230, 4 P.3d 1221.

Penalty. — The 2005 amendments to this section and their history show that the legislature intended the phrase "first degree felony resulting in the death of a child" to designate an entirely different level of noncapital offense — one that results in life in prison which is unusual, if not unprecedented, for an offense other than first degree murder. The result is a new level of offense and a new prison sentence that is at least 66% longer than the 18-year sentence for any other first degree felony. Garcia v. State, 2010-NMSC-023, 148 N.M. 414, 237 P.3d 716.

Double jeopardy. — Vehicular homicide is a lesser offense than child abuse resulting in death. State v. Santillanes, 2001-NMSC-018, 130 N.M. 464, 27 P.3d 456.

The child abuse statute is neither preempted by the reckless driving statute, specifically, nor by the Motor Vehicle Code, generally. State v. Guilez, 2000-NMSC-020, 129 N.M. 240, 4 P.3d 1231.

Child abuse of fetus. — Infliction of injuries to a fetus, which resulted in the death of a child, is insufficient to support a charge of child abuse resulting in death under Section 30-6-1 NMSA 1978. State v. Mondragon, 2008-NMCA-157, 145 N.M. 574, 203 P.3d 105.

Any person construed. — The statute for negligent child abuse resulting in death is not restricted to persons having a special relationship with the child, such as parent or guardian. It applied to defendant who was 18 years of age and who shot the victim, who was 14 years of age, and defendant's friend. State v. Reed, 2005-NMSC-031, 138 N.M. 365, 120 P.3d 447.

There is no reason to believe that the legislature intended that the protection of this section be limited only to the children of abusive parents. The defendant who drove a car whose occupants threw beer bottles and rammed a truck in which a child was riding may be guilty of child abuse. State v. Lujan, 1985-NMCA-111, 103 N.M. 667, 712 P.2d 13, cert. denied, 103 N.M. 740, 713 P.2d 556 (1986).

"Leaving" and "abandoning" defined. — The New Mexico legislature intended "leaving" in 30-6-1(B) NMSA to create an independent theory of criminal culpability distinct from "abandoning". The definition of "leave" that is consistent with the intent of the legislation is to take leave of or withdraw oneself from, whether temporarily or permanently, and the definition of "abandon" that is consistent with the intent of the legislation is to forsake or desert in spite of an allegiance, duty, or responsibility, or withdraw one's protection, support, or help from. Section 30-6-1(B) NMSA 1978 criminalizes either intentionally leaving, even temporarily, or intentionally abandoning a child, but only under circumstances where doing so exposes the child to a risk of harm. State v. Stephenson, 2017-NMSC-002, aff'g 2015-NMCA-038.

Insufficient evidence to support abandonment of a child. — Where defendant was convicted of abandonment of a child resulting in great bodily harm, the evidence presented at trial that defendant locked her two-year-old child in his bedroom to go to sleep for the night, but that defendant remained in the apartment, and where the child was found the following morning pinned between the dresser and the crossbar of his toddler bed, was insufficient to prove that defendant intentionally left her child at a time and under circumstances when the child's well-being was at risk of harm. State v. Stephenson, 2017-NMSC-002, aff'g 2015-NMCA-038.

Abandonment construed. — To be convicted of criminal child abandonment, evidence of abandonment must demonstrate that a parent, guardian or custodian left the child without an intent to return. State v. Stephenson, 2015-NMCA-038, cert granted, 2015-NMCERT-001.

Insufficient evidence of criminal child abandonment. — Where parent locked a child in his bedroom and then ignored the child's cries from another room, and where there was no evidence that the parent intended to leave the child in his bedroom without an intent to return, there was insufficient evidence to support a conviction for criminal child abandonment. State v. Stephenson, 2015-NMCA-038, cert granted, 2015-NMCERT-001.

Ordinary negligence not punishable. — A conviction for child abuse by endangerment cannot be based on a mere possibility, however remote, that harm may result from a defendant's acts. The legislature intended to punish conduct that created a reasonable probability or possibility that a child will be endangered. The child abuse statute contains no indication that the legislature intended felony punishment to attach to ordinary negligent conduct. State v. Massengill, 2003-NMCA-024, 133 N.M. 263, 62 P.3d 354, cert. denied, 133 N.M. 126, 61 P.3d 835.

Susceptibility of child. — Although a child's susceptibility to harm is a factor a jury might consider when determining whether a defendant has committed child abuse, this factor alone is insufficient for a reviewing court to rule as a matter of law that defendant did not cause the child to be in a situation that might endanger his health. Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found that the circumstances as a whole satisfied the essential elements of the crime of child abuse beyond a reasonable doubt. State v. Jensen, 2006-NMSC-045, 140 N.M. 416, 143 P.3d 178.

Abuse of a child encompasses abuse by endangerment that results in emotional injury. — The crime of child abuse by endangerment may be based on evidence of a truly significant risk of serious harm to a child's emotional health, just as when a child's physical health is endangered. State v. Galindo, 2018-NMSC-021.

Where defendant was convicted of child abuse not resulting in death or great bodily harm to his thirteen-year-old daughter (child), and where the state presented evidence that on the night defendant's infant daughter died, the child found defendant kneeling on the floor, holding the baby's "purple, bluish" body and calling the child to come and help him revive the baby, that defendant persisted in his frantic attempts to revive the baby, which included putting the baby's naked body in the kitchen sink and rubbing ice on her, performing CPR on her "very hard", biting her, splashing water on her in the shower and rubbing perfume on her body, and that defendant refused to let the child go get help from relatives who lived nearby, and where the child testified that the she felt shocked and scared, and that the baby's death made her feel "dead inside", defendant's conduct was sufficient to show that defendant exposed the child to a truly significant risk of serious emotional harm, because in light of the other evidence that defendant sexually assaulted and violently abused the baby, resulting in her death, defendant's conduct drew the child into the aftermath of defendant's crimes against the baby. The jury reasonably could have found that defendant endangered the child's emotional health by compelling her to witness and participate in the further abuse of the baby's lifeless body, as defendant tried to undo the effects of what he had already done to the baby. State v. Galindo, 2018-NMSC-021.

Insufficient evidence of recklessly permitting child abuse. — Where defendant was convicted of child abuse not resulting in death or great bodily harm to his thirteen-year-old daughter (child) based on three alternative theories of abuse, including intentionally causing the child to be placed in a situation that endangered her life or health, recklessly causing the child to be placed in a situation that endangered her life or health, and recklessly permitting the child to be placed in a situation that endangered her life or health, defendant's conviction for recklessly permitting the child to be placed in a situation that endangered her life or health was not supported by sufficient evidence, because there was no evidence that anyone other than defendant inflicted the abuse against the child, and "permitting" child abuse refers to the passive act of failing to prevent someone else, a third person, from inflicting the abuse. State v. Galindo, 2018-NMSC-021.

Sufficient evidence of child abuse resulting in death. — Where defendant was convicted of child abuse resulting in the death of his infant daughter, and where the state presented evidence that the baby died from blunt force trauma to her head, that the baby also suffered injuries to her groin area, and that the baby showed no signs of choking, and where defendant claimed that there was insufficient evidence that he acted intentionally and without justification because the evidence showed not that he meant to harm the baby, but that he was attempting to shock her into consciousness after he found her not breathing, the jury was free to reject defendant's version of events especially where there were inconsistencies between defendant's explanation of the baby's injuries and the medical evidence; the jury could have reasonably concluded that defendant acted intentionally and without justification. State v. Galindo, 2018-NMSC-021.

Sufficient evidence of intentional child abuse. — Where defendant admitted to police that she often lost her temper when her eight-month-old baby cried, admitted that she had bitten her baby, that she had shaken her baby, that she had hit the baby in the head, that she had thrown the baby on the bed causing the baby to hit her head against the wall, and that she had thrown the baby on the floor, and where the forensic pathologist testified that, based on the evidence of multiple bruises on the baby's face and head and evidence of bleeding around the baby's brain and inside the baby's eyes, the baby died from a fatal traumatic brain injury, defendant's conviction for intentional child abuse resulting in the death of a child was supported by substantial evidence. State v. Cabezuela, 2015-NMSC-016.

Elements of intentional child abuse. — Intentional child abuse under Section 30-6-1 NMSA 1978 occurs only when a defendant causes the abuse. It does not include the failure to act to prevent another from abusing the child. UJI 14-602 NMRA for intentionally causing child abuse is a misstatement of the relevant law when it includes the phrase "failure to act". State v. Cabezuela, 2011-NMSC-041, 150 N.M. 654, 265 P.3d 705.

Where the state only charged defendant with intentional child abuse resulting in death and the court instructed the jury that the state had to prove beyond a reasonable doubt that defendant's "actions or failure to act resulted in the death" of the child, the jury was improperly instructed as to the elements of intentional child abuse resulting in death, because the instruction included both intentional and negligent theories of child abuse. State v. Cabezuela, 2011-NMSC-041, 150 N.M. 654, 265 P.3d 705.

Elements of intentional child abuse resulting in the death of a child under the age of twelve. Where the state charged defendant with intentional child abuse resulting in death of a child who was eight months old and the jury instruction required the jury to find that the child was under the age of eighteen, but did not require the jury to find that the child was under the age of twelve, the jury was improperly instructed as to the elements of intentional child abuse resulting in the death of a child under the age of twelve. State v. Cabezuela, 2011-NMSC-041, 150 N.M. 654, 265 P.3d 705.

Elements instruction on intentional child abuse resulting in death did not result in fundamental error. — Where defendant was convicted of intentional child abuse resulting in the death of a child less than twelve years of age, defendant's contention that the jury instructions improperly defined the intent element for the crime of intentional child abuse by endangerment was without merit, because the instructions given at defendant's trial required the jury to find that defendant acted intentionally when he caused the child to be placed in a situation that endangered her life or safety or caused the child to be tortured, cruelly confined, or cruelly punished. The elements instruction for intentional child abuse by endangerment was not incomplete or otherwise inconsistent with the law, nor was the jury instruction confusing or misleading under the circumstances of the case. State v. Lucero, 2017-NMSC-008.

Proof required for conviction of child abuse by endangerment. — A discernible risk of danger to a particular child or particular children is required to support a conviction of child abuse by endangerment and for a defendant to be criminally liable for child abuse by endangerment, the defendant must be aware of a particular danger to the identifiable child or children when engaging in the conduct that creates the risk of harm. State v. Gonzales, 2011-NMCA-081, 150 N.M. 494, 263 P.3d 271, cert. granted, 2011-NMCERT-008, 268 P.3d 513.

Evidence of DWI was insufficient to support conviction of child abuse by endangerment. — Where defendant, who was severely drunk, collided with a vehicle in which two children were riding in the back seat, killing one child and injuring the other child, and the state failed to prove that defendant was aware of the danger to the particular children who were the victims of defendant's drunk driving, the evidence was insufficient to convict defendant of negligent or intentional child abuse by endangerment. State v. Gonzales, 2011-NMCA-081, 150 N.M. 494, 263 P.3d 271, cert. granted, 2011-NMCERT-008, 268 P.3d 513.

A moving DWI is a sufficient factual basis for a child abuse by endangerment conviction. — The mere fact that a defendant was driving a vehicle in which a child was a passenger while defendant was intoxicated, standing alone, is sufficient as a matter of law to support a conviction of for child abuse by endangerment. State v. Orquiz, 2012-NMCA-080, 284 P.3d 418, cert. quashed, 2013-NMCERT-003.

Where defendant with driving a vehicle with defendant's nine-year-old child in the vehicle; defendant drove through an intersection without stopping at a stop sign and crashed into a ditch across the intersecting roadway; the child suffered minor injuries; defendant claimed the defendant could not stop the vehicle because the brakes failed; and defendant was convicted of driving while intoxicated, defendant's moving DWI alone was a sufficient factual basis for defendant's child abuse by endangerment conviction even if the DWI did not otherwise separately evince indicial of unsafe driving. State v. Orquiz, 2012-NMCA-080, 284 P.3d 418, cert. quashed, 2013-NMCERT-003.

Evidence sufficient to support conviction for child endangerment. — Where defendant claimed, in his trial on child endangerment, that the state failed to prove that defendant knew the victim was a child, evidence that defendant, during a home invasion, asked the fifteen-year-old victim, "Are your parents home?", was sufficient evidence for the jury to infer defendant's awareness that the person he would later hold at gunpoint was a child. State v. Ramirez, 2016-NMCA-072, cert. denied.

Sufficient evidence of child abuse. — Where, in defendant's trial for first-degree murder and child abuse, the jury heard evidence that defendant fired a gun at the victim nine times at point-blank range, that the victim was seated in the front passenger seat of his vehicle, and that the victim's three children were sitting in the back seats of the vehicle in immediate proximity to their father, and where the jury heard evidence that although the victim was shot nine times, only five of the bullets were found inside his body, that several of the bullets defendant fired traveled through the victim and continued onward, one of which traveled through the driver's-side window in the second row of seats of the vehicle and one of which was recovered from the inside roof of the vehicle, there was sufficient evidence to support the jury's determination that defendant placed the three children in a situation that endangered their lives and that defendant showed a reckless disregard for their safety and health. State v. Ramirez, 2018-NMSC-003.

Corpus delicti rule. — A defendant's extrajudicial statements may be used to establish the corpus delicti when the prosecution is able to demonstrate the trustworthiness of the confession and introduce some independent evidence of a criminal act. State v. Wilson, 2011-NMSC-001, 149 N.M. 273, 248 P.3d 315.

Proof of corpus delicti. — Where defendant was charged with first degree abuse of a child resulting in death; the child died without any physical signs of trauma; defendant confessed to suffocating the child with a blanket; the evidence confirmed the statements made by defendant in the confession; the evidence also showed that the child was in normal respiratory and cardiovascular health on the day prior to the child's death, the child had not been breathing before the child was taken to an emergency room even though there was no underlying medical condition that would kill the child, defendant made false statements to police and medical personnel about the child's medical record suggesting that defendant portrayed the child as chronically sick to cover up a crime, and the cause of death was consistent with a blockage to the mouth and nose, the corpus delicti of the crime was established because the evidence corroborated the trustworthiness of defendant's confession and independently showed that the child died from a criminal act. State v. Wilson, 2011-NMSC-001, 149 N.M. 273, 248 P.3d 315.

Separate instructions on intentional and negligent child abuse were warranted. — Where defendant, who was responsible for watching the child and who was frustrated and irritated by the child's crying, bundled the child in a blanket tighter than usual and put the child face down on a pillow in the crib; the child became ill, was taken to a hospital and died from an injury to the brain caused by lack of oxygen to the brain; defendant was indicted for both negligent and intentional child abuse resulting in great bodily harm; at the beginning of the trial, the state's theory was that defendant placed the child in a dangerous situation by swaddling the child tightly and leaving the child unattended; and during the trial, the state introduced the theory that defendant intentionally suffocated the child, defendant was entitled to separate jury instructions for negligent and intentional child abuse because the state's theories of how the harm to the child occurred were different and inconsistent. State v. Consaul, 2014-NMSC-030.

When separate instructions are required to prove reckless or intentional child abuse. — Jury instructions are to be read and considered as a whole and when so considered they are proper if they fairly and accurately state the applicable law; where a defendant is charged with both reckless and intentional child abuse resulting in the death of a child under twelve years of age, separate instructions for reckless and intentional child abuse are not necessary as long as the verdict forms make it clear which crime defendant was convicted of because the punishments are different for each crime. State v. Montoya, 2015-NMSC-010.

Where defendant was charged with both intentional and reckless child abuse, it was not reversible error where the elements of both intentional and reckless child abuse were contained in one instruction, when the instruction provided the definitions of reckless acts and intentional acts, and the special forms provided to the jury made it clear which crime defendant was convicted of: intentional child abuse resulting in the death of a child under twelve years of age. State v. Montoya, 2015-NMSC-010.

Reckless child abuse resulting in the death of a child under twelve is a lesser-included offense of intentional child abuse resulting in the death of a child under twelve. — The statutory elements of reckless child abuse resulting in the death of a child under twelve are a subset of the statutory elements of intentional child abuse resulting in the death of a child under twelve; the only distinction between the two crimes is the mens rea required, either intentional or reckless; one can commit child abuse recklessly without acting intentionally, but one cannot intentionally commit child abuse without consciously disregarding a substantial and unjustifiable risk. State v. Montoya, 2015-NMSC-010.

Where defendant was charged with both intentional and reckless child abuse, it was appropriate for the trial court to use a step-down instruction, instructing the jury that if they determined that defendant was guilty of child abuse resulting in death, they had to then determine whether defendant committed the crime intentionally or with reckless disregard, if the jury found that defendant committed the crime intentionally, then they were to complete the special verdict form and go no further, if they had reasonable doubt as to whether the crime was committed intentionally, they had to decide whether the crime was committed with reckless disregard, and if the jury could not find that the crime was committed intentionally or with reckless disregard, they were to find defendant not guilty of child abuse resulting in death. State v. Montoya, 2015-NMSC-010.

Lesser-included offense of intentional child abuse resulting in the death of a child under twelve. — Because reckless child abuse resulting in the death of a child under twelve is a lesser-included offense of intentional child abuse resulting in the death of a child under twelve, when a defendant is charged with intentional child abuse resulting in the death of a child under twelve, the defendant will be on notice to defend against both intentional and reckless child abuse resulting in the death of a child under twelve when the abuse results from the same conduct or course of conduct. State v. Montoya, 2015-NMSC-010.

Where defendant was charged with both intentional and reckless child abuse, it was appropriate for the trial court to use a step-down instruction providing the process by which the jury should consider each charge when both charges were based on the same course of conduct. State v. Montoya, 2015-NMSC-010.

Sufficient evidence of intentional child abuse. — Where the state presented evidence that the seventeen-month-old child was in good health prior to being left alone with defendant, the child's injuries could not have been accidental, and that defendant admitted hitting the child, there was sufficient evidence from which the jury could have found beyond a reasonable doubt that defendant committed intentional child abuse resulting in the death of a child under the age of twelve. State v. Montoya, 2015-NMSC-010.

Instruction on lesser included offense not warranted. — Where defendant was charged with child abuse resulting in the death of a child under twelve years of age; the state presented expert evidence that the child's death was caused by blunt force injuries to the child's head due to vigorous shaking of the child; and defendant requested an instruction on the lesser included offense of child abuse not resulting in death on the basis of defendant's admission that when defendant pulled the child's pants too hard, the child fell back on the child's head, the trial court did not abuse its discretion in refusing the lesser included instruction, because the incident to which defendant admitted did not rise to the level of criminally punishable conduct and there was insufficient evidence to support a conviction of child abuse not resulting in death. State v. Juan, 2010-NMSC-041, 148 N.M. 747, 242 P.3d 314.

Substantial evidence. — Where defendant left the defendant's child, who was two years of age, with defendant's friend while defendant went to work; the friend later asked defendant to return home and told defendant that the friend had picked the child up by the child's ears and had thrown the child into a bathtub; defendant saw physical symptoms, which suggested that the friend had caused serious injury to the child; defendant had previously witnessed the friend abuse the child; defendant stayed home with the child the next day, but returned to work on the third day leaving the child in the friend's care; the friend later asked defendant to return home; when defendant returned home, defendant found that the child was dead; and the evidence showed that the injury that resulted in the child's death occurred on the third day, there was sufficient evidence to support defendant's conviction of negligently permitting child abuse resulting in death. State v. Vasquez, 2010-NMCA-041, 148 N.M. 202, 232 P.3d 438. cert. denied, 2010-NMCERT-004, 148 N.M. 572, 240 P.3d 659.

Sufficient evidence of child endangerment. — Where defendant was driving with defendant's six-year-old child in the car; defendant smelled of alcohol and defendant's eyes were bloodshot and watery; defendant admitted to drinking at least five beers and some tequila prior to driving; and defendant admitted that defendant probably had too much alcohol to drive, the circumstantial evidence constituted substantial evidence that defendant acted with reckless disregard for the safety of defendant's child. State v. Chavez, 2009-NMCA-089, 146 N.M. 729, 214 P.3d 794, cert. denied, 2009-NMCERT-007, 147 N.M. 361, 223 P.3d 358.

Sufficient evidence of intentional child abuse. — Where defendant did not dispute that the child died due to a blunt force injury to the head and that the cause of death was homicide; in two police interviews, defendant admitted harming the child on the day and night of the incident; and in a third police interview, defendant stated that defendant's friend harmed the child, there was sufficient evidence from which the jury could have found beyond a reasonable doubt that defendant intentionally abused the child and a retrial was not barred by double jeopardy. State v. Cabezuela, 2011-NMSC-041, 150 N.M. 654, 265 P.3d 705.

Where the defendant's three-year-old son was found by police officers naked with linear wounds on the child's back and stomach; the child was staying with the defendant at the time; the officers testified that the defendant was hostile and uncooperative; there were fifteen marks on the child's body extending from the child's lower to upper back; some of the marks wrapped around the child's abdomen; the defendant claimed that a dog caused the marks on the child's body; a doctor testified that the marks were consistent with child abuse, that the marks appeared to have been caused by the child being hit with a thin, flexible object, and that the marks were not consistent with dog scratches; and the officers retrieved various cords from the home that were consistent with the child's injuries, the evidence was sufficient to convict the defendant of intentional child abuse. State v. Davis, 2009-NMCA-067, 146 N.M. 550, 212 P.3d 438.

Sufficient evidence. — Circumstantial evidence that the child was in defendant's sole care for 56 minutes preceding defendant's discovering of the child's injuries; the child's injuries may have been inflicted minutes before the child began to display symptoms of the injury; once the child suffered the injuries, the child would have quickly become very sick; the child's injuries were acute, meaning that the injuries may have been inflicted seconds before they were discovered; and the child's skull fracture looked as if it had been inflicted a very short time prior to the child's death, there was sufficient evidence to support the finding that defendant caused the child's death. State v. Jojola, 2005-NMCA, 119, 138 N.M. 459, 122 P.3d 43, cert. quashed, 2006-NMCERT-010, 140 N.M. 674, 146 P.3d 809.

Sufficient evidence of intentional child abuse by torture. — Where a child victim testified that defendant, the child's foster father, used a stun gun on him more than twenty-four times, where pictures admitted at trial showed injuries to the child and where there was corroborating testimony from the child's sister and the investigating detective, a rational jury could have found defendant guilty beyond a reasonable doubt as the child's principal abuser on twenty-four counts of child abuse by torture, and where the child testified that defendant purchased the stun gun and gave it to his son, that the child was stunned by defendant's son approximately fifteen times, was stunned by defendant's other son approximately three times, that defendant was present during the assaults by one of the sons and would laugh in response, and where there was corroborating testimony from the child's sister, a rational jury could have found defendant guilty beyond a reasonable doubt as an accessory to child abuse inflicted by another. State v. Vargas, 2016-NMCA-038.

Instruction based on the statutory presumption of child abuse by endangerment. — Where the defendant was convicted of negligently permitting child abuse by endangerment after the defendant was arrested in a house where chemicals and equipment involved with methamphetamine production were found, and where the trial court, in addition to an instruction on the essential elements of child abuse by endangerment, instructed the jury, based on the presumption created by Section 30-6-1 NMSA 1978, that "Evidence that demonstrates that a child has been knowingly, intentionally or negligently allowed to enter or remain in a motor vehicle, building or any other premises that contains chemicals and equipment used or intended for use in the manufacture of a controlled substance may be deemed evidence of abuse of the child", the instruction was erroneous, because a reasonable juror could have concluded that he or she was not required to find the essential element of endangerment beyond a reasonable doubt. State v. Trossman, 2009-NMSC-034, 146 N.M. 462, 212 P.3d 350.

A conviction of child abuse by endangerment requires proof of the actual presence of a child when the dangerous situation occurred and the mere fact that a child normally resided in a home that contains chemicals and equipment used or intended for use in the manufacturing of a controlled substance is insufficient to support a conviction of child abuse by endangerment. State v. Trossman, 2009-NMSC-034, 146 N.M. 462, 212 P.3d 350.

Evidence insufficient. — Where the defendant was convicted of negligently permitting child abuse by endangerment after the defendant was arrested in a house where chemicals and equipment involved with methamphetamine production were found; there was evidence that the child resided in the house with the defendant; the child was not present in the house on the date the defendant was arrested; no methamphetamine was found in the house; and there was no evidence of specific dates when the child had been present in the house, of when the items that could be used to produce methamphetamine had been taken into the house, that any of the dangerous, legal, household chemicals in the house were stored in a manner that could endanger a child, of when or how often methamphetamine production had occurred in the house, or that the house was contaminated, the evidence was insufficient to support the defendant's conviction of child abuse by endangerment. State v. Trossman, 2009-NMSC-034, 146 N.M. 462, 212 P.3d 350.

Endangerment by medical neglect. — In the context of medical neglect, causing medical neglect and permitting medical neglect define identical criminal acts. State v. Nichols, 2016-NMSC-001, rev'g 2014-NMCA-040, 321 P.3d 937.

Where defendant, whose six-month-old baby died from a loss of blood associated with blunt abdominal trauma and a lacerated liver, was charged with both causing endangerment by medical neglect and permitting endangerment by medical neglect, and where the jury found defendant not guilty of causing medical neglect but guilty of permitting medical neglect, both of which imply passive involvement, the conflicting verdicts preclude any determination of which culpable act was the actual basis for the jury's conviction of defendant. Defendant's conviction for negligently permitting medical neglect of his son was reversed. State v. Nichols, 2016-NMSC-001, rev'g 2014-NMCA-040, 321 P.3d 937.

Insufficient evidence of reckless child abuse based on medical expert testimony. — Where defendant, who was responsible for watching the child and who was frustrated and irritated by the child's crying, bundled the child in a blanket tighter than usual and put the child face down on a pillow in the crib; the child became ill, was taken to a hospital, and died from an injury to the brain caused by lack of oxygen to the brain; the state's theory was that defendant placed the child in a dangerous situation by swaddling the child tightly and leaving the child unattended; expert medical testimony provided the only evidence that the child may have been suffocated and that the child had not been injured by other, noncriminal causes; and the state's medical experts testified almost unanimously that the mere act of swaddling the child and placing the child face down on a pillow would not have caused the severe brain injuries they observed in the child, the state failed to prove causation and the charge of criminal recklessness completely failed for lack of substantial evidence. State v. Consaul, 2014-NMSC-030.

Use of medical testimony alone to support a criminal conviction. — Medical testimony to support causation in a criminal proceeding, as a matter of evidentiary foundation, should describe in detail the methodology utilized first to "rule-in" possible causes and then to "rule-out" all but one. Based on that process of elimination, described in detail to the jury, a doctor then should be able to offer an opinion on causation to a reasonable degree of medical probability which satisfies a minimum standard for admissibility. In a criminal trial, to meet a standard of proof beyond a reasonable doubt, prosecutors point to additional, non-opinion evidence, so that when considered cumulatively all the evidence is sufficient to support a verdict beyond a reasonable doubt. If, however, the prosecution is relying solely on medical opinion, it must go beyond the mere probable causation required for admissibility. The medical testimony should establish why the expert opinions are sufficient in themselves to establish guilt beyond a reasonable doubt. State v. Consaul, 2014-NMSC-030.

Insufficient evidence of intentional child abuse based on medical testimony as to a "likely" cause. — Where defendant, who was responsible for watching the child and who was frustrated and irritated by the child's crying, bundled the child in a blanket tighter than usual and put the child face down on a pillow in the crib; the child became ill, was taken to a hospital and died from an injury to the brain caused by lack of oxygen to the brain; the state's theory was that defendant intentionally suffocated the child; the expert medical testimony provided the only evidence that the child may have been suffocated and that the child had not been injured by other, noncriminal causes; and the state's medical experts testified that they suspected child abuse, that they could not rule out child abuse, and that they could not think of other explanations for the child's injuries, that child abuse was a likely cause, and that the child was likely suffocated, the evidence was insufficient to establish beyond a reasonable doubt that defendant intentionally suffocated the child. State v. Consaul, 2014-NMSC-030.

Mens rea for intentional child abuse by endangerment. — Where defendant was charged with intentional child abuse by endangerment, and where the state presented evidence at trial that defendant drove poorly while intoxicated, with her child strapped in a car seat, the evidence was insufficient to support the jury's verdict that defendant committed intentional child abuse by endangerment, because the mens rea for intentional child abuse by endangerment requires a conscious object to endanger a child, and no evidence was presented that it was defendant's conscious objective to endanger her child. State v. Granillo, 2016-NMCA-094, cert. denied.

Insufficient evidence of child abuse based on DWI. — Where police officers found defendant in the driver's seat of a van that was parked on a roadside; the van was not running; the keys were not in the ignition; both defendant and the passenger in the van were intoxicated and incapable of driving; the passenger's children were in the back seat; and the state did not rely on a theory of past driving, but on the theory that defendant might drive the van while impaired and place the children in a situation which endangered their lives and health, the evidence was insufficient to support defendant's conviction of child abuse. State v. Cotton, 2011-NMCA-096, 150 N.M. 585, 263 P.3d 925, cert. denied, 2011-NMCERT-008, 268 P.3d 513.

Evidence of endangerment based on filthy living conditions. — When filthy living conditions provide the exclusive basis for charging the defendant with child endangerment, the state has the burden to identify the specific dangers posed by the living environment and to present evidence to support a finding that there is a substantial and foreseeable risk that such filthy living conditions endangered the child. State v. Chavez, 2009-NMSC-035, 146 N.M. 434, 211 P.3d 891, rev'g 2008-NMCA-126, 145 N.M. 11, 193 P.3d 558.

Insufficient evidence of endangerment based on filthy living conditions. — Where there was dirty laundry, dirty dishes, dirty diapers and mouse droppings throughout the defendant's house; the house contained dangerous features, such as a damaged ceiling, broken glass in the yard, nail-ridden debris from a collapsed shed, a gap in the floor boards on the front porch and household chemicals within reach of the children; open and broken dresser drawers were easily accessible to the children who could get inside and get stuck; closets were open and had piles of items inside that could fall on and injure a child; the shower and toilet were covered in mold; a razor was accessible to the children; rodent droppings were present throughout the house, including in cabinets where dishes and food were stored and on the dishes; no hot water from the tap was available, because the propane that fueled the water heater was empty and disconnected; the electric stove was available to heat water for washing, cooking and bathing; there was no evidence of drugs or alcohol in the house; the children were physically healthy and well-nourished; and there was no evidence connecting these conditions to a substantial and foreseeable risk of harm to the children, the evidence was insufficient to support a finding that the defendant's conduct created a substantial and foreseeable risk of harm to the children. State v. Chavez, 2009-NMSC-035, 146 N.M. 434, 211 P.3d 891, rev'g 2008-NMCA-126, 145 N.M. 11, 193 P.3d 558.

Insufficient evidence of endangerment. — Where defendant's neighbor found defendant's three-year-old child wandering around outside their apartment building at 2:00 a.m.; the child was crying and cold and wearing only a dirty diaper; the apartment was in a high-crime area and there was a busy parking lot, alley and street nearby; the door to defendant's apartment was ajar when the neighbor returned the child to the apartment; the neighbor found defendant asleep in the apartment; defendant was intoxicated; and the state produced no evidence that the child had been in a direct line of harm or exposed to anything more than a possibility of danger or that defendant's intoxication contributed to the child's wandering outside the apartment, the evidence was insufficient to support defendant's conviction for negligent child abuse by endangerment because the state failed to prove that the risk to the child was foreseeable and probable. State v. Garcia, 2014-NMCA-006, cert. granted, 2013-NMCERT-012.

Where defendant took the child to a tattoo parlor and signed a written consent to allow the child to have the child's tongue pierced without the knowledge, authorization or permission of the child's parent; the piercing was successful, but the child sustained serious injuries as a result of an accidental fall in the tattoo parlor; the child received penicillin during the course of treatment and it was discovered that the child was allergic to the drug; defendant lacked knowledge about tongue piercing and about the child's allergy to penicillin; defendant did not perform the piercing; and the owner of the tattoo parlor had sufficient knowledge and experience to perform the tongue piercing, the evidence was insufficient to support defendant's conviction of child abuse by endangerment because the evidence did not show that defendant's conduct created a substantial and foreseeable risk of serious harm to the child. State v. Webb, 2013-NMCA-027, 296 P.3d 1247, cert. denied, 2013-NMCERT-002.

Where the defendant placed the defendant's five-month-old child to sleep in a dresser drawer filled with blankets and padding because the child's bassinet had broken; the child died in the drawer; the autopsy listed the cause of death as inconclusive; and there was an absence of evidence in the record to indicate that the sleeping conditions presented anything more than a mere possibility of harm, the evidence failed to establish that the defendant created a substantial and foreseeable risk that the child would suffer a serious injury. State v. Chavez, 2009-NMSC-035, 146 N.M. 434, 211 P.3d 891, rev'g 2008-NMCA-126, 145 N.M. 11, 193 P.3d 558.

Insufficient evidence of endangerment based on DWI. — Where defendant was seated in the driver's seat of a vehicle with defendant's spouse in the middle, and defendant's four-year-old child on the passenger side of the vehicle; the vehicle was not running; defendant was holding the keys; open alcohol containers were on the floor and in the cup holders; defendant was intoxicated; defendant informed police officer that defendant was going to a local store; and defendant was convicted of DWI by actual physical control, there was insufficient evidence to support a conviction for felony child abuse by endangerment. State v. Etsitty, 2012-NMCA-012, 270 P.3d 1277, cert. denied, 2011-NMCERT-012.

Sufficient evidence of child abuse. — Where defendant fired two gunshots into a house in which a child, aged three weeks, was situated at the time of the shooting; the bullets found in the house matched those fired from defendant's handgun; and before the shooting, a witness told defendant that there was a newborn baby in the house, there was sufficient evidence to support defendant's conviction of negligent abuse of the child. State v. Arrendondo, 2012-NMSC-013, 278 P.3d 517.

Sufficient evidence of child abuse by endangerment. — Where five-year-old triplets and a 15-year-old child lived with defendant and defendant's spouse in a small house; the home was littered with cat urine and feces, trash, rotten food, dirty dishes and piles of dirty clothes; two loaded firearms with spare ammunition and magazines were in an open box on the floor in the master bedroom; the children played with toy guns, including a toy gun that was a Glock replica indistinguishable from a real gun; when police officers enter the home, defendant had glass pipes for smoking methamphetamine on defendant's person; defendant admitted that defendant and defendant's spouse had been using methamphetamine for three days and had not slept; and defendant admitted that defendant smoked methamphetamine when the children were home and left drug paraphernalia, including syringes, strewn about the master bedroom and the backyard, there was sufficient evidence to support defendant's conviction of negligent child abuse by endangerment. State v. Schaaf, 2013-NMCA-082.

Where the defendant lived in a trailer with his three small children and the mother of the children; the trailer had no gas utility and no alternative heating source or hot water; the trailer was infested with mice; the ceiling appeared ready to collapse; one window was missing, another was broken and glass shards were on the ground; the bathroom and shower were moldy; razors and chemicals were left where the children could access them; there was a trash pit at ground level outside the trailer that had flies and a pungent odor; open cans of solvent and cleaning fluid were on the porch; there were car parts, spray cans, matches and other objects that could be dangerous to children about the yard; the ramp leading to the trailer had a gap wide enough to injure a child; and the defendant sometimes left the children unattended in this environment, the defendant's conviction of child abuse by endangerment was supported by substantial evidence. State v. Chavez, 2008-NMCA-126, 145 N.M. 11, 193 P.3d 558, rev'd, 2009-NMSC-035, 146 N.M. 434, 211 P.3d 891.

Sufficient evidence of child abuse resulting in death. — Where the defendant put her child, who was sick with bronchitis, in a low youth-bed without rails on his back with a bottle and covered him with a blanket and placed an electric space heater on the floor within nine inches from the bed and left the child unattended all night and where the child rolled off the bed and was burned to death by the space heater, the evidence was sufficient to convict the defendant of negligent child abuse resulting in death. State v. Chavez, 2007-NMCA-162, 143 N.M. 126, 173 P.3d 48, cert. denied, 2007-NMCERT-011, 143 N.M. 155, 173 P.3d 762.

"Endangered". — Although the jury was not instructed on the definition of "endangered", when a common term is used, the jury may properly apply the common meaning of the term. State v. Jensen, 2005-NMCA-140, 138 N.M. 647, 124 P.3d 1186, rev'd, 2006-NMSC-045, 140 N.M. 416, 143 P.3d 178.

Evidence insufficient. — Where the state's case was nothing more than that the child abuse by endangerment statute criminalizes the filthy conditions of a non-controlling caretaker's home continually made available to a 15-year old boy, and absent evidence showing the particular susceptibility to endangerment of a child who has reached 15 years of age, the evidence was not sufficient for a rational jury to conclude, from common experience beyond a reasonable doubt, that the situation was sufficiently precarious such that the child was on a reasonably sure path to harm's way with unfortunate health consequences reasonably likely to result. State v. Jensen, 2005-NMCA-140, 138 N.M. 647, 124 P.3d 1186, rev'd, 2006-NMSC-045, 140 N.M. 416, 143 P.3d 178.

Evidence insufficient to convict of child abuse. — In low-speed vehicle chase, where evidence showed that defendant was speeding, but then slowed to posted speed limit; that defendant lawfully went through intersections after he failed to stop for the police; that defendant failed to use a turn signal on one turn; that defendant slowed, but did not come to a complete stop at one stop sign; that defendant's automobile was drifting back and forth within its lane of travel; that there was no evidence that three children in the vehicle were unrestrained; that there was no evidence of the surrounding circumstances, such as the extent of defendant's abrupt swerve, traffic congestion or volume; and that defendant was acquitted of DWI, the evidence was insufficient to justify a finding that defendant showed a reckless disregard for the children in the automobile or exposed them to a substantial risk to their safety, to sustain a conviction of felony child abuse. State v. Clemonts, 2006-NMCA-031, 139 N.M. 147, 130 P.3d 208, cert. denied, 2006-NMCERT-003, 139 N.M. 352, 132 P.3d 1038.

Reckless disregard. — For negligent child abuse, one need only have reckless disregard to the consequences in the face of substantial and foreseeable danger. State v. Schoonmaker, 2005-NMCA-012, 136 N.M. 749, 105 P.3d 302, rev'd on other grounds, 2008-NMSC-010, 143 N.M. 373, 176 P.3d 1105.

Evidence sufficient to convict of negligent abuse. — Where the evidence established that prior to 3:20 p.m. on July 24, 2000, deceased child was a normal and healthy baby, and two hours later, after being in defendant's sole custody and care, he was not, and medical witnesses testified that deceased child suffered substantial, serious injuries that were consistent with shaken baby syndrome and that those injuries would manifest shortly after being violently shaken, and although defendant offered several innocent explanations, the consensus of the medical witnesses was that his explanations were medically unacceptable, and he also admitted shaking the child on two occasions, evidence is sufficient for the jury to convict defendant of criminally negligent child abuse. State v. Schoonmaker, 2005-NMCA-012, 136 N.M. 749, 105 P.3d 302, rev'd on other grounds, 2008-NMSC-010, 143 N.M. 373, 176 P.3d 1105.

Endangerment. — Because Subsection D(1) of this section proscribes conduct that may endanger the health, as well as the life, of a child, it was unnecessary for the state to show that an amount of marijuana accessible to the children could have been fatal. State v. Graham, 2005-NMSC-004, 137 N.M. 197, 109 P.3d 285.

It was within the jurors' experience to decide whether the amount of accessible marijuana in the apartment endangered the health of a three-year-old child and a one-year-old child who lived in the apartment. State v. Graham, 2005-NMSC-004, 137 N.M. 197, 109 P.3d 285.

Double jeopardy not violated. — Defendant's acquittal of intentional child abuse and subsequent prosecution for negligent child abuse did not violate the federal constitutional guarantee against double jeopardy. State v. Schoonmaker, 2005-NMCA-012, 136 N.M. 749, 105 P.3d 302, rev'd on other grounds, 2008-NMSC-010, 143 N.M. 373, 176 P.3d 1105.

Double jeopardy violated. — Defendant's convictions for second degree murder and child abuse resulting in death, for the death of defendant's child that resulted from the same conduct, violated the double jeopardy clause. State v. Mann, 2000-NMCA-088, 129 N.M. 600, 11 P.3d 564, aff'd, 2002-NMSC-001, 131 N.M. 459, 39 P.3d 124.

Single continuous act. — Where defendant drove while intoxicated with three children who were not restrained, defendant committed one continuous act and defendant was subject to only one charge and one punishment for child abuse. State v. Castaneda, 2001-NMCA-052, 130 N.M. 679, 30 P.3d 368, cert. denied, 130 N.M. 558, 28 P.3d 1099.

Viable fetus not a child. — Legislature did not intend for a viable fetus to be included within the statutory definition of a child for the purposes of the child abuse statute. State cannot prosecute a mother for child abuse when the mother uses cocaine during her pregnancy. State v. Martinez, 2006-NMCA-068, 139 N.M. 741, 137 P.3d 1195, cert. quashed, 2007-NMCERT-005, 141 N.M. 762, 161 P.3d 259.

Law reviews. — For note, "Criminal Law: Applying the General/Specific Statute Rule in New Mexico — State v. Santillanes," see 32 N.M.L. Rev. 313 (2002).

For note, "Criminal Law: The Child Abuse Statute Now Requires Criminal Negligence — Santillanes v. State," see 24 N.M.L. Rev. 477 (1994).

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