State v. Chavez

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMSC-035

Filing Date: June 23, 2009

Docket No. 31,202

STATE OF NEW MEXICO,

Plaintiff-Respondent,

v.

JULIO CHAVEZ,

Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI
James Waylon Counts, District Judge

Hugh W. Dangler, Chief Public Defender
William A. O’Connell, Assistant Appellate Defender
Santa Fe, NM

for Petitioner

Gary K. King, Attorney General
Anita Carlson, Assistant Attorney General
Santa Fe, NM

for Respondent

OPINION

BOSSON, Justice.

{1} When Defendant Julio Chavez woke up on the morning of October 2, 2003, he
discovered that his infant daughter, Shelby, was not breathing. Despite repeated efforts, she
could not be revived. A police investigation into her death revealed that Shelby had been
placed to sleep in a dresser drawer filled with blankets and padding because her bassinet had
broken a day or two earlier. In addition, police inspected Defendant’s home and discovered
impoverished and dirty living conditions that, in the State’s opinion, posed a significant
danger to Shelby and her two young brothers, Juan and Leo. As a result, Defendant was

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charged with two counts of child abuse by endangerment with respect to the two boys based
on the living conditions in his home. Defendant was charged with one count of child abuse
resulting in death in regard to Shelby, as well as a lesser included charge of child
endangerment for Shelby. The jury did not find Defendant guilty of child abuse resulting
in death but did find Defendant guilty of all three endangerment charges.

{2} In this appeal, we first explore the sufficiency and nature of the evidence necessary
to sustain a child endangerment conviction when it is based only on filthy living conditions
and without any underlying criminal conduct. This is not the first time we have confronted
this question. We refer to our recent holding in State v. Jensen, 2006-NMSC-045, ¶ 14, 140
N.M. 416, 143 P.3d 178, where we stated that “[w]hen filthy living conditions provide the
exclusive basis for charging a defendant with child endangerment, the State must assist the
trier of fact with evidence that supports a finding that there is a reasonable probability or
possibility that such filthy conditions endangered the child.” Although we ultimately upheld
the endangerment conviction in Jensen, we based our decision on a number of risk factors,
including criminal activity coupled with the conditions in the home. This is the first case in
which filthy conditions alone provide the basis for the conviction. We conclude that the
evidence presented at trial was insufficient to support a finding that Defendant’s conduct
created a substantial and foreseeable risk of harm to the children. Whether a defendant’s
conduct creates a substantial and foreseeable risk of harm is what determines whether the
child was endangered. As we will explain, we no longer find the terms “probability” or
“possibility” helpful to our analysis and their use should be discontinued.

{3} In addition, we address whether the sleeping environment for baby Shelby created
a substantial and foreseeable risk of harm sufficient to support a criminal child endangerment
conviction. For the reasons we discuss in more detail below, the evidence did not establish
that the risk of harm was substantial and foreseeable, and therefore, we reverse. The Court
of Appeals having decided otherwise, we reverse.

BACKGROUND

{4} Defendant and Jennifer Wheeler had three children together over the course of their
eight-year relationship: Juan and Leo, ages four and two, and Shelby, who was five months
old at the time of her death on October 2, 2003. In April 2003, shortly after Shelby was
born, the family relocated from Alamogordo to a mobile home in Tularosa. Jennifer worked
long hours, leaving Defendant to stay at home with the children.

{5} On October 1 or the day before, Shelby’s bassinet broke. Defendant planned to get
a crib for Shelby from his mother, but in the meantime he fashioned a temporary bed for
Shelby by placing a 29-by-15 inch dresser drawer on the bedroom floor filled with a pillow,
a sheet, and a blanket for padding. That night, Jennifer laid Shelby in the drawer bed to
sleep. Shelby awoke around 5:00 a.m. and Jennifer and Defendant placed Shelby back to
sleep on her stomach in the drawer. When Defendant woke up hours later, he discovered
that Shelby was not breathing and frantically sought help. Resuscitation efforts were

2
ultimately unsuccessful.

{6} At the hospital police interviewed Defendant and Jennifer, and later that afternoon
went to inspect their home. One officer created a videotape of what he saw, which was
played for the jury at trial. Several witnesses catalogued the unsafe and unsanitary
conditions in and around the home, including the presence of rodent droppings in various
places in the house, such as the cabinets where the dishes were stored and in Shelby’s
makeshift drawer bed. The home had no gas utility or hot water because the propane tank
was empty and disconnected. Dirty clothes were scattered throughout the house; a strong-
smelling bag of dirty diapers was left on the floor in the master bedroom next to the drawer
bed, and there was a bowl of curdled milk on the floor in the kitchen. Outside, the yard
contained a trash pit rife with flies and a pungent odor.

{7} The home was also in need of repair and maintenance. The ceiling tiles were stained
and starting to grow mold, evidencing a water leak, and one area of the ceiling in the living
room appeared ready to collapse. The smoke detector had been disabled and was without
a battery. The shower leaked and appeared to have mold, and a razor was left out in the
bathroom where it might have been accessible to the children. Outside the home, where the
children would run around barefoot and in diapers, there were glass shards from a broken
window and a collapsed shed that contained exposed, rusty nails sticking out of lumber on
the ground. The ramp leading to the front door of the mobile home contained a gap of
several inches. There were also open cans of solvents or cleaners on the porch.

{8} On a positive note, the refrigerator contained fresh milk and cheese, and the record
indicates that the children were physically healthy and well-nourished. There was no
evidence of drugs or alcohol in the home. Jennifer Wheeler testified that Defendant never
used drugs and rarely consumed alcohol, and in fact he had helped her stop using drugs when
they met.

{9} On these facts, the State charged Defendant with one count of child abuse resulting
in death and three counts of child abuse by endangerment, one count for each child. After
a three-day trial which focused on Shelby’s death, the jury acquitted on the charge of child
abuse resulting in death, but convicted Defendant of the three endangerment counts,
including the count pertaining to Shelby. The Court of Appeals reversed one of the three
convictions, holding that Defendant’s abuse of his two sons occurred as a single course of
conduct stemming from the conditions in the home and constituted only one violation of the
statute. State v. Chavez, 2008-NMCA-126, ¶ 19, 145 N.M. 11, 193 P.3d 558. However, the
Court held that the drawer bed presented a danger unique to baby Shelby and was sufficient
to support a second, separate conviction for child endangerment. Id. ¶ 20. On certiorari,
Defendant argues that the conditions in his home, including the makeshift bed he fashioned
for his daughter, were the result of the family’s poverty and did not endanger his children
within the meaning of our child abuse statute.

DISCUSSION

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Standard of Review

{10} To the extent Defendant asks us to interpret our criminal child abuse statute, that
presents a question of law which is reviewed de novo on appeal. See State ex rel. Children,
Youth & Families Dep’t v. Shawna C., 2005-NMCA-066, ¶ 24, 137 N.M. 687, 114 P.3d 367
(citing State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995)). A statute defining
criminal conduct must be strictly construed. Santillanes v. State, 115 N.M. 215, 221, 849
P.2d 358, 364 (1993). “A criminal statute may not be applied beyond its intended scope, and
it is a fundamental rule of constitutional law that crimes must be defined with appropriate
definiteness.” Id. (citing State v. Bybee, 109 N.M. 44, 46, 781 P.2d 316, 318 (Ct. App.
1989)).

{11} After reviewing the statutory standard, we apply a substantial evidence standard to
review the sufficiency of the evidence at trial. State v. Treadway, 2006-NMSC-008, ¶ 7, 139
N.M. 167, 130 P.3d 746. “‘[T]he relevant question is whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” State v. Garcia, 114 N.M. 269,
274, 837 P.2d 862, 867 (1992) (alteration in original) (emphasis omitted) (quoting Jackson
v. Virginia, 443 U.S. 307, 319 (1979)). In performing this review, we must view the
evidence 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.
Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. “The reviewing court
does not weigh the evidence or substitute its judgment for that of the fact finder as long as
there is sufficient evidence to support the verdict.” State v. Mora, 1997-NMSC-060, ¶ 27,
124 N.M. 346, 950 P.2d 789.

Child Abuse and Neglect

{12} Given the special recognition of the needs of children and their inability to protect
themselves, our Legislature has adopted a framework of both criminal and civil laws to
address child abuse. State v. Graham, 2005-NMSC-004, ¶ 9, 137 N.M. 197, 109 P.3d 285.
Recognizing the wide variety of ways that a child can be harmed by abuse and neglect, our
Legislature has empowered the State with a broad array of civil remedies, ranging from the
benign, like ensuring that children receive nutritious meals, to the intrusive, such as
placement of children in foster care or termination of parental rights altogether. See NMSA
1978, § 32A-4-22(B) (2005). On the far end of this spectrum lies the sanction for criminal
child abuse, which classifies abuse as, at a minimum, a third-degree felony punishable by
up to three years imprisonment. NMSA 1978, § 30-6-1(D)-(E) (2005). As a practical
matter, criminal convictions for child abuse may also lead to the loss of parental rights over
those children.

{13} On the civil side, the Legislature has enabled the State to act preemptively to protect
children “based upon perceived future harm.” Shawna C., 2005-NMCA-066, ¶ 26. The civil
process addresses situations in which the child “has suffered or who is at risk of suffering

4
serious harm because of the action or inaction of the child’s parent, guardian or custodian.”
NMSA 1978, § 32A-4-2(B)(1) (1999) (emphasis added). Our Court of Appeals recently
stated that when evaluating abuse and neglect cases,

we emphasize that the focus should be on the acts or omissions of the parents
in their caretaking function and not on apparent shortcomings of a given
parent due to his or her unfavorable status. While no child would ask to have
a poor, incarcerated, or addicted parent, poverty, incarceration, or addiction
alone do not perforce equate to neglect as set out in the [civil] statute.

Shawna C., 2005-NMCA-066, ¶ 30.

{14} When parental conduct or the home environment places a child at risk, the State can
use its civil powers to remove the danger to the child, either by allowing the child to remain
with the parents subject to their compliance with court-ordered conditions, by removing the
child from the home, or by transferring legal custody to another. See § 32A-4-22(B).
Importantly, this process contemplates that parents will be afforded advance notice and an
opportunity to comply with a treatment plan before the State proceeds to more drastic
remedies. See § 32A-4-22(C). Parents will have a reasonable opportunity to improve their
parenting skills, with the ultimate goal being to preserve and reunify the family.

Criminal Child Abuse by Endangerment

{15} Our Legislature has also fashioned a parallel criminal scheme to punish conduct that
endangers a child. A third-degree felony, child abuse by endangerment occurs when an adult
knowingly, intentionally, or negligently places a child “in a situation that may endanger the
child’s life or health.” Section 30-6-1(D)-(E). Child abuse by endangerment, as opposed
to physical abuse of a child, is a special classification designed to address situations where
an accused’s conduct exposes a child to a significant risk of harm, “even though the child
does not suffer a physical injury.” State v. Ungarten, 115 N.M. 607, 609, 856 P.2d 569, 571
(Ct. App. 1993). Under this standard, an accused’s culpability is premised upon the degree
of danger created by his conduct.

{16} Taken literally, our endangerment statute could be read broadly to permit prosecution
for any conduct, however remote the risk, that “may endanger [a] child’s life or health.”
However, by classifying child endangerment as a third-degree felony, our Legislature
anticipated that criminal prosecution would be reserved for the most serious occurrences, and
not for minor or theoretical dangers. See Santillanes, 115 N.M. at 222, 849 P.2d at 365
(criminal prosecutions are for “conduct that is morally culpable, not merely inadvertent.”).
Therefore, we have taken a more restrictive view of the endangerment statute, and have
interpreted the phrase “may endanger” to require a “reasonable probability or possibility that
the child will be endangered.” Ungarten, 115 N.M. at 609, 856 P.2d at 571; see also State
v. McGruder, 1997-NMSC-023, ¶ 37, 123 N.M. 302, 940 P.2d 150 (applying Ungarten
“reasonable probability or possibility” test).

5
{17} New Mexico courts have evaluated child endangerment under the “reasonable
probability or possibility” standard for the past sixteen years. In application, however, this
standard has created uncertainty in child endangerment cases because “probability” and
“possibility” connote two different levels of risk. “Probability” conveys a certain likelihood
that a result will occur, whereas “possibility” means that something is merely capable of
occurring. As an unintended consequence, our use of both terms to define endangerment has
left unclear the amount or degree of risk necessary to support a conviction. We therefore
take this opportunity to examine whether we should employ a more precise terminology in
describing the degree of risk to which a child must be exposed before it can constitute
criminal child endangerment.

{18} Although “may” is defined as “a possibility,” our concerns for adequate notice and
fairness to the accused suggest that the relevant conduct must create more than a
“possibility” of harm before it may be punished as a felony. Shawna C., 2005-NMCA-066,
¶ 34 (“In assessing whether a statute provides adequate notice, we ask if the statute ‘allows
individuals of ordinary intelligence a fair opportunity to determine whether their conduct is
prohibited.’” (quoting State v. Laguna, 1999-NMCA-152, ¶ 25, 128 N.M. 345, 992 P.2d
896)). “In writing and construing the criminal law, both our state legislature and this Court
owe the people of this state a duty of clarity. We cannot ask our citizens . . . to guess at the
meaning of a criminal statute.” State v. Sung, 2000-NMCA-031, ¶ 15, 128 N.M. 786, 999
P.2d 430. To satisfy the constitutional requirements of due process, a criminal statute must,
with sufficient certainty, alert a person of ordinary intelligence that his conduct is prohibited.
See State v. Andrews, 1997-NMCA-017, ¶ 10, 123 N.M. 95, 934 P.2d 289; see also Shawna
C., 2005-NMCA-066, ¶ 32 (“In the criminal context, due process requires that a statute be
drafted so that it provides fair warning of the conduct sought to be proscribed and so it does
not encourage arbitrary or discriminatory enforcement.”). As the Colorado Supreme Court
observed when construing an endangerment statute identical to our own, “we seriously doubt
whether ‘may’ in a criminal statute provides a fair description of the prohibited conduct,
since virtually any conduct directed toward a child has the possibility, however slim, of
endangering the child’s life or health.” People v. Hoehl, 568 P.2d 484, 486 (Colo. 1977) (en
banc) (charging defendant with endangerment after allegedly holding child’s hand to a
radiator, resulting in serious second- and third-degree burns) (interpreting prior version of
Colo. Rev. Stat. § 18-6-401(1)(A) (1973)).

{19} To avoid due process and vagueness problems, courts have interpreted may to require
a greater degree of certainty to effectuate legislative intent. Black’s Law Dictionary 1000
(8th ed. 2004); Hoehl, 568 P.2d at 486 (construing an identical endangerment statute’s use
of “may endanger” as requiring a “reasonable probability that the child’s life or health will
be endangered” (emphasis added)); State v. Fisher, 631 P.2d 239, 242 (Kan. 1981) (word
“may” as used in Kansas child abuse statute given restrictive construction, indicating
reasonable probability or likelihood the child would be placed in situation whereby that
child's life or health will be endangered) (emphasis added)). But see State v. Hubble, 2009-
NMSC-014, ¶ 13, 146 N.M. 70, 206 P.3d 579 (interpreting the term “may” to require only
a possibility that other traffic would be affected for purposes of a misdemeanor turn signal

6
violation).

{20} However, we acknowledge there are many situations that may not produce a strict
mathematical probability of harm, but nevertheless endanger a child. For example, if a
defendant placed one bullet in a six-shot revolver, spun the chamber, placed the pistol to the
child’s head, and pulled the trigger, the risk that the child will suffer a lethal shot is only
16.67%, less than a statistical probability. Yet few would doubt the very real and
unacceptable risk of harm to the child.

{21} Even more problematic are situations such as the present case, where the probability
of harm cannot easily be measured or accurately quantified as a mathematical statistic.
Therefore, a standard that requires proof of a strict probability under all circumstances poses
too rigid a bar in its application. For these reasons, it is apparent that neither probability nor
possibility provides an accurate, universal description of legislative intent.

{22} Accordingly, we look to the Uniform Jury Instruction on child endangerment for
guidance on the endangerment standard. UJI 14-604 NMRA asks the jury to determine
whether the “defendant caused [the child] to be placed in a situation which endangered the
life or health of [the child].” The UJI does not define “endangerment.” See Black’s Law
Dictionary 568 (8th ed. 2004) (“endangerment” is “[t]he act or an instance of putting
someone or something in danger; exposure to peril or harm”). However, to find that the
accused acted with the requisite mens rea, the jury is instructed that it must find that
“defendant’s conduct created a substantial and foreseeable risk” of harm. See UJI 14-604
(emphasis added). This standard more closely aligns with the legislative purpose that
animates the child endangerment statute - to punish conduct that creates a truly significant
risk of serious harm to children.

{23} Our prior cases illustrate that there are several factors the factfinder may consider to
determine whether the risk created by an accused’s conduct is substantial and foreseeable.
One is the gravity of the threatened harm. See State v. Trujillo, 2002-NMCA-100, ¶ 21, 132
N.M. 649, 53 P.3d 909 (stating that a defendant’s conduct must create a substantial risk with
“potentially serious consequences to the life or health of a child”). It is the gravity of the
risk that serves to place an individual on notice that his conduct is perilous, and potentially
criminal, thereby satisfying due process concerns. See State v. Schoonmaker,
2008-NMSC-010, ¶ 43, 143 N.M. 373, 176 P.3d 1105 (“What distinguishes civil negligence
from criminal negligence is not whether the person is subjectively aware of a risk of harm;
rather, it is the magnitude of the risk itself.” (Emphasis added.)).

{24} In many of our prior endangerment cases, the seriousness of the threatened injury has
often been apparent. See Graham, 2005-NMSC-004, ¶ 10 (defendant left marijuana in areas
accessible to children, including a potent marijuana bud in a baby crib); McGruder, 1997-
NMSC-023, ¶¶ 5-6 (defendant fatally shot mother’s boyfriend before threatening to shoot
mother who was standing in front of her child in the line of fire); Ungarten, 115 N.M. 609-
10, 856 P.2d 571-72 (defendant brandished knife at child’s father while child was standing

7
directly behind father, and child testified that the knife came so close to his body that he
“could not discern whether it was directed at him or his father”); State v. Guilez, 2000-
NMSC-020, 129 N.M. 240, 4 P.3d 1231 (defendant failed to secure three-year-old child in
a safety seat and drove his truck while intoxicated at night without working head lights or
tail lights before crashing into a fence), abrogated by State v. Santillanes, 2001-NMSC-018,
130 N.M. 464, 27 P.3d 456; State v. Castañeda, 2001-NMCA-052, ¶ 14, 130 N.M. 679, 30
P.3d 368 (defendant drove while intoxicated on the wrong side of a divided highway with
children in the vehicle that were unsecured by seatbelts).

{25} We have also relied on the Legislature’s independent assessment that conduct is
inherently perilous when evaluating endangerment convictions. See Graham, 2005-NMSC-
004, ¶ 12 (noting that the Legislature’s designation of marijuana as a Schedule I controlled
substance, increased penalties for distributing marijuana to minors or in the vicinity of
schools, all illustrate a legislative determination that marijuana is a dangerous substance,
particularly for minors.). Where a defendant’s underlying conduct violates a separate
criminal statute, such legislative declaration of harm may be useful, though not dispositive,
to an endangerment analysis when the Legislature has defined the act as a threat to public
health, safety, and welfare.

{26} In addition, although no longer the determinative factor, the likelihood that harm will
occur remains an important consideration when evaluating the magnitude of the risk. We
have declined to uphold endangerment convictions where the risk of harm is too remote,
which may indicate that the harm was not foreseeable. See State v. Clemonts,
2006-NMCA-031, ¶ 16, 139 N.M. 147, 130 P.3d 208 (reversing child endangerment
conviction where defendant committed misdemeanor traffic offenses while engaged in low-
speed police chase with children in car but defendant “did not expose a substantial risk to
the children’s lives or health as passengers in Defendant’s car” (emphasis added)); State v.
Roybal, 115 N.M. 27, 34, 846 P.2d 333, 340 (Ct. App. 1992) (reversing conviction for child
endangerment where defendant left his six-year-old daughter in car near a drug transaction
but removed from any actual threat of harm); Jensen, 2006-NMSC-045, ¶ 10 (holding the
State must prove that “a defendant place[d] a child within the zone of danger and physically
close to an inherently dangerous situation”).

Sufficiency and Nature of the Evidence

{27} Having clarified the appropriate endangerment standard, we turn to the sufficiency
of the evidence necessary to prove a criminal violation. We discuss first the evidence
pertaining to the alleged endangerment of the two boys, Juan, age four, and Leo, age two.
In this respect, the present case is novel in that we are asked to determine for the first time
whether a filthy home environment is sufficient on its own to support a felony endangerment
conviction. Our recent decision in Jensen indicates that conditions in a home may, in some
extreme circumstances, create a sufficiently dangerous environment to rise to the level of
criminal child endangerment. 2006-NMSC-045, ¶ 14. However, we stated in Jensen that
the State has the burden to identify the specific dangers posed by the living environment and

8
to present evidence to demonstrate that such filthy conditions endangered the child. Id. ¶ 14.
We affirm the principles behind that conclusion here and, consistent with how juries are
instructed on the subject, the State must present evidence to prove a substantial and
foreseeable risk that such filthy living conditions endangered the child.

{28} In Jensen, the defendant allowed his fifteen-year-old neighbor, Robbie, to become
intoxicated at his house, smoke cigarettes, and look at adult pornographic websites on the
defendant’s computer every night for more than two weeks. 2006-NMSC-045, ¶ 6. When
Robbie was reported missing, police went to the defendant’s home and discovered
unimaginable conditions within. Id. ¶¶ 4-5. Witnesses described the presence of several
dogs and even an emu inside the home, which needed to be removed by animal control
officers before the police could enter. Id. ¶ 4. An officer testified that, once inside, she
observed dog feces and vomit, rotten food, and rodent droppings throughout the home. The
officer stated that

[i]n the living room area, there were dog feces, dog vomit on the floor, and
rat and bird droppings in a cage. The entire kitchen area, including the stove,
dishwasher, sink, and counter top, was dirty and littered with rodent
droppings. The stove top burners, where Defendant cooked for Robbie, were
also littered with rat droppings. The computer table that Robbie frequently
used to surf the Internet was covered with trash and had rat or mouse
droppings. Black rotten food was in the refrigerator next to some good
hamburger meat. There was no place to sit at the dining room table without
coming into contact with the extremely dirty conditions. The baseboards
looked as though dogs had urinated on them, and the dirty bathroom had
empty coke bottles and a filthy looking plastic soda pop jug with a yellowish
orange liquid in it. The entire house was littered with dust, papers, bottles,
and animal waste that created a constant stench. In fact, an animal control
officer who came to take Defendant's emu had to go outside to avoid
vomiting from the smell.

Id. ¶ 5.

{29} The State argued that these conditions endangered Robbie by exposing him to a risk
of contracting hantavirus. Id. ¶ 14. Jensen responded that the conditions in his home only
created a speculative possibility of danger, which was unsubstantiated by specific evidence
sufficient to satisfy the criminal child endangerment standard. Id. ¶ 13. To that extent, we
agreed with the defendant, holding that the State failed to present evidence to assist the jury
with understanding how one contracts hantavirus and how one would connect that disease
to the particular conditions in the defendant’s home. Id. ¶ 14.

{30} However, the endangerment charge was not premised exclusively on filthy
conditions, but rather on a combination of risks including the criminal acts of supplying
alcohol to a minor, allowing him to drink in excess to the point of sickness every night for

9
two weeks, and allowing him to view pornography and smoke cigarettes, all within the filthy
environment. Given the cumulative effect of this evidence, we affirmed the child
endangerment conviction, noting that these factors “[distinguish] this case from those cases
where only filthy conditions are at issue.” Id. ¶ 15.

{31} Jensen supports the proposition that particularly egregious living conditions can
conceivably fall within the ambit of criminal child endangerment. The conditions in
Defendant Chavez’s home appear to be factually similar to those described in Jensen,
although arguably not as extreme. However, the present case is materially different from
Jensen, in part based on the absence of any evidence indicating that Defendant engaged in
other, per se unlawful acts to bolster the endangerment charges. Therefore, as we stated in
Jensen, “[w]hen filthy living conditions provide the exclusive basis for charging a defendant
with child endangerment, the State must assist the trier of fact with evidence that supports
a finding that there is a [substantial and foreseeable risk] that such filthy conditions
endangered the child.” We now evaluate the present case in light of the standard we set forth
above.

Conviction for Endangering the Boys

{32} In order to prove child endangerment in this case, the State was required to show that
the conditions created a substantial and foreseeable risk that Juan and Leo would suffer
serious injuries from the otherwise lawful conditions in Defendant’s home. We begin our
risk analysis by reviewing the gravity of the dangers created by the home environment to
determine whether these dangers created a substantial and foreseeable risk of serious injury.

{33} That this was a filthy house is obvious, evidenced by the dirty laundry, dirty dishes,
dirty diapers, and mouse droppings throughout the home. The home also contained certain
dangerous features, such as the damaged ceiling, the broken glass in the yard, the nail-ridden
debris from the collapsed shed, the gap in the floor boards on the front porch, and household
chemicals within reach of the children. Sheriff’s Deputy Lisa Delorm testified that some of
the dresser drawers were open and broken, and that the openings were easily accessible to
the children who could get inside and get stuck. She also noted that the closets were open
and had piles of items stacked inside that could fall on and injure a child. In the bathroom,
witnesses observed that the shower and toilet were covered in mold. A razor was accessible
to the children. The most salient sanitary issue in the home was the presence of rodent
droppings throughout, including in the cabinets where dishes and food were stored and on
the dishes.

{34} In addition, the home had no hot water available from the tap because the propane
which fueled the water heater was empty and disconnected. Clearly, a lack of hot water
makes it difficult to sterilize dishes. Although hot water was not available at the faucet, the
record indicates that the stove was electric and presumptively capable of boiling water for
washing, cooking, and even bathing. Had the children’s mother testified that the family was
unable to heat water on the stove, or that the family functioned for months without any

10
ability to heat water, then in light of the other conditions, this aspect of the home would have
presented a serious threat to the children’s health. The record, however, reveals no such
testimony.

{35} It is apparent that these conditions evidence poverty, filth, and neglect, and that they
create some degree of risk, particularly for young children. Jensen, 2006-NMSC-045, ¶ 3
(“[A] child’s susceptibility to harm is a factor a jury might consider when determining
whether a defendant has committed child abuse . . . .”). But the question before us is
whether these conditions created a substantial and foreseeable threat of serious injury. As
we have said, not every risk of injury rises to the level of felony child endangerment. The
State was required to establish that the risks arising from this home environment were far
greater than those in the average home.

{36} The dangerous aspects identified by the State in Defendant’s home included broken
glass, nails, dirty diapers, household chemicals, trash, and mold. Under certain
circumstances supported by substantial evidence, similar conditions could conceivably
present the kind of risk of serious injury that falls within the statute. Cf. State v. Deskins,
731 P.2d 104, 105-06 (Ariz. Ct. App. 1986) (“[T]he jury heard evidence of unsanitary
conditions, including a leaking portable toilet and that the children slept in close proximity
to animals which appeared to be diseased and scrap metal automobile parts, tin cans and
other discarded items. The children, who were kept barefoot, were not protected from scrap
lumber with protruding nails and were exposed to the animal feces . . . . The jury heard
evidence that the parents were given one week in which to make changes which were
indicated by the caseworker, but failed or refused to do so.” (Emphasis added.)). For
example, the length of time that these conditions are allowed to exist and the amount of
supervision in the home are certainly factors that can increase or mitigate the degree of risk
involved. Unfortunately, although the State offered some testimony on these factors, the
record is largely silent in this regard.

{37} The problem with the present case and this record is the lack of any specific evidence
connecting these conditions to a substantial and foreseeable risk of harm. Any dirty house
can lead to illness or injury, but the critical difference that distinguishes a filthy house from
conditions that are criminal is whether those conditions present a truly consequential and
foreseeable threat of harm to children. The risk of a cut or a bruise is not the same as the risk
of a virulent disease. Our endangerment jurisprudence, as illustrated by Jensen, indicates
that most of the hazards present in Defendant’s home do not present the sort of serious risk
anticipated by our Legislature, at least in the absence of specific evidence to the contrary.

{38} Of course, the risk of disease and parasites presents a potentially more serious threat
of harm. The State presented several witnesses to testify about the extent of the rodent
infestation and the prevalence of rodent droppings throughout the home. Although mice are
commonly associated with disease, not every exposure to rodents will result in serious
illness. Therefore, the presence of mice in a home is not enough on its own to conclude that
the children are at risk of contracting a serious illness.

11
{39} Similar to Jensen, the State failed to present any specific evidence to establish a
substantial and foreseeable risk that the children would suffer serious disease as a result of
being present in Defendant’s home. The State offered no expert testimony. Instead, the
State merely cross-examined Defendant’s own expert, Dr. Sparing, by asking, “Would you
agree that having an infestation of mice in a home is not conducive to good health?” Dr.
Sparing responded by acknowledging that mice can carry different diseases and parasites,
including hantavirus and plague. But Dr. Sparing was never asked to address the specific
risk that the children would contract a serious illness from this particular environment.

{40} The State could have met its burden in this case. The risk of serious disease or illness
is a matter of science and can be established with empirical and scientific evidence. To
determine the presence of disease or parasites, the State could have subjected the rodent
droppings to laboratory testing. See State v. Greene, 811 P.2d 356, 358-59 (Ariz. Ct. App.
1991) (stating that “neither the feces nor the spoiled food had been tested for the presence
of disease or parasites”). The State could have presented testimony from a health
professional explaining the scientific nexus and degree of likelihood regarding these
conditions and specific diseases or other significant threats to the welfare of children. The
entire house could have been environmentally analyzed for the presence of unusual health
risks. The State could have presented statistical information from the Department of Health
or the Centers for Disease Control on the presence and incidence of hantavirus and plague
in or near Tularosa. As we indicated in Jensen, our juries deserve more evidentiary
assistance, particularly when the risks are based on matters of science, to help them decide
whether the threat of serious illness is significantly greater in the particular home in
question.

{41} Importantly, the State had been aware of this family even before the investigation
into Shelby’s death; Defendant had two prior encounters with the New Mexico Children,
Youth and Families Department (CYFD). The first encounter occurred in 2001 when a
social worker visited the family’s prior home in Carrizozo. Although the social worker
never went inside the home, she reported that a visual inspection revealed “unsanitary”
conditions and “safety issues.” It is unclear from the record whether Defendant and his
family actually resided in the home at that time, and the record does not indicate that further
actions were taken by CYFD after that visit. The second visit occurred only one month
before Shelby died, when police officers responded to a CYFD call from Defendant’s cousin
and went to the home to perform a welfare check on Shelby. The police left without taking
any action, and the record does not reflect any further actions by CYFD between the
September 7, 2003 visit and Shelby’s death on October 2, 2003.

{42} The Court of Appeals concluded that these visits placed Defendant on notice that the
conditions in his home were perilous. Chavez, 2008-NMCA-126, ¶ 10. We agree that the
CYFD visits provide an inference that Defendant should have known, at the very least, that
he needed to pay attention to conditions in his home. However, the lack of any CYFD action
following the two prior visits suggests that those conditions, while unclean, were not
seriously threatening and did not necessitate additional, immediate intervention through the

12
civil process. Without a record of further intervention, it is difficult for this Court to
envision how conditions that did not merit further civil action could put Defendant on notice
of the potential for criminal prosecution.

{43} We do not imply that the State need exhaust all of its civil remedies before turning
to criminal sanction. However, use of the civil process seems particularly appropriate here.
This is not a case where the children were subjected to physical violence, nor where the
parents struggled with addiction and the children suffered as a result — a predicament all
too common in child neglect cases. Instead, this is a case where the family struggled with
poverty, and our ultimate goal should be to assist, rather than to punish, that status. Had the
State intervened in a more meaningful way, the family would have either addressed the home
environment or the State could have removed the children to protect their health and safety.
Failing to intervene civilly, however, the State then put on a criminal case without the kind
of specific and pointed evidence necessary to support the verdict. Evidence of diffuse
hazards and a general lack of supervision is insufficient to establish that the children faced
specific and identifiable harm in violation of the endangerment statute. Without additional
evidence, the risk of harm was only speculative, indicating that Defendant’s conviction was
based on the condition of his home rather than the specific dangers arising therefrom.

Conviction Relating to Endangerment—Not Death—of the Infant Shelby

{44} Defendant was also charged with child abuse resulting in death and a step-down
charge of child abuse by endangerment based on the risk created by allowing his infant
daughter Shelby to sleep in a drawer. The autopsy listed the cause of death as
“inconclusive,” and the medical examiner testified that he could not tell with any certainty
whether the death occurred as a result of Sudden Infant Death Syndrome or because of
asphyxiation. The jury ultimately acquitted Defendant on the charge of child abuse resulting
in death, and, therefore, we do not consider whether the drawer bed caused any injury in fact.
The question before us is limited to whether the evidence established that, by allowing
Shelby to be placed in the drawer to sleep, Defendant created a substantial and foreseeable
risk that Shelby would suffer a serious injury. In addition, the drawer is the only significant
factor that distinguishes the conviction relating to Shelby from Defendant’s conviction for
endangering his sons. Therefore, to the extent that the unsanitary conditions in the home
presented dangers common to all three children, they would merge into a single conviction
for purposes of double jeopardy, and we do not consider them again in this section.

{45} The State pursued this case under a criminal negligence theory and, therefore, was
required to prove beyond a reasonable doubt that Defendant “knew or should have known
of the danger involved and acted with a reckless disregard for the safety or health of the
child.” Id. § 30-6-1(A)(3). As we recently stated in Schoonmaker, criminal negligence for
purposes of child endangerment is measured objectively, and occurs when a person

should be aware of a substantial and unjustifiable risk [that harm] will result
from his conduct. The risk must be of such a nature and degree that the

13
 actor’s failure to perceive it, considering the nature and purpose of his
conduct and the circumstances known to him, involves a gross deviation
from the standard of care . . . .

2008-NMSC-010, ¶ 43 (quoting Model Penal Code § 2.02(c) (Official Draft and Revised
Comments 1962)) (emphasis omitted). Thus, the State had the burden to first establish the
actus reus of endangerment—that the drawer created a substantial and foreseeable risk of
harm. Once the danger is established, the State must also show that a reasonable person
would have apprehended the risk, and that Defendant recklessly disregarded the risk by
allowing Shelby to sleep in the drawer.

{46} The State sought to show that the sleeping arrangement created a serious danger to
Shelby due to Shelby’s size in relation to the drawer and bedding. At five months old,
Shelby was approximately twenty-six inches long. The drawer that Defendant chose for his
daughter measured 29-by-15 inches. Several witnesses testified that the drawer, particularly
when filled with soft bedding and a blanket, did not allow Shelby much room to move
around. The State presented testimony that if the bedding blocked Shelby’s nose and mouth,
she may not have had room to free herself, creating a possibility that she could suffocate.
In addition, witnesses testified that if Shelby became pressed up against the wall of the
drawer, she might re-breathe her expelled air, high in carbon dioxide, creating a risk of
asphyxiation. This is the sort of substantial injury contemplated by our endangerment
statute.

{47} However, in addition to the gravity of the potential injury, we must also consider
whether it was foreseeable that an injury would actually occur. In performing this review,
we note the absence of evidence in the record to indicate that the sleeping conditions
presented anything more than a mere possibility of harm.1

{48} The State asked Doctor Ross Reichard, the medical examiner who performed the
autopsy on Shelby, whether the sleeping environment was dangerous. Dr. Reichard
responded that danger was possible, but that he listed cause of death as “undetermined”
because he could not prove one way or the other that the sleeping environment was a cause
of Shelby’s death. The State also asked Dr. Reichard whether “placing an infant such as
Shelby with her size on her stomach in a fifteen by twenty-nine inch drawer, with soft items
in it [makes] it more likely or less likely that she may suffocate,” to which he responded
only that it was “worrisome” and that suffocation was a “possibility.” Both of these
statements were in relation to the likelihood that the sleeping environment actually caused
Shelby’s death, rather than whether harm would foreseeably result from placing Shelby to

1
The testimony cited in the dissent confirms only a possibility that harm would occur.
As we have already discussed, the term “possibility” is unhelpful as a measure of proof in
this context. A remote possibility of harm is insufficient to support a felony conviction, and
an endangerment conviction cannot be sustained without proof of a greater degree of risk.

14
sleep in the drawer.

{49} The only evidence presented to quantify the likelihood that harm would occur came
from Defendant’s own expert witness, Dr. Sparing, who testified that he had never seen a
child suffocate in a drawer, and that even if possible, it would be uncommon. He also stated
that the risk created by placing a child to sleep in a drawer is very small, unpredictable and
unmeasurable, particularly in comparison to conduct that carries a great deal of risk, such
as failing to secure a child in a car seat. Dr. Sparing estimated that the risk of harm created
by placing a child to sleep on a water bed, for example, is more “definite and predictable”
and is much greater than placing a child to sleep in a drawer. He further stated, “We know
now that putting children on soft water beds, infants on soft water beds face down, could
potentially kill them. Does it kill all of them? No. A very, very tiny number. Maybe one
out of a thousand. One out of two or three thousand, something like that.” Dr. Sparing’s
testimony provided the only substantive evidence to quantify the probability that harm would
occur, and he opined that “a reasonable individual would not look at an environment like this
and consider the child to be at risk.”

{50} The elevated risk, if any, created by the small size of the drawer in relation to
Shelby’s body, and by including soft bedding in the drawer which restricted the infant’s
ability to move, is not quantifiable based solely on common knowledge or experience.
Specific evidence was needed to assist the jury in ensuring that a conviction would be based
on science and not emotion. This is particularly important in this case, where the trial
focused on the death of an infant and the level of parenting was easy to criticize. Natural
factors of sympathy and even outrage in the face of an infant death can create a perilous
situation where judgment is based on emotion and not evidence.

{51} To meet its burden, the State could have presented testimony from a medical doctor
or a health professional to explain and quantify the increase in risk from these factors,
individually or in combination. The State could have referred to medical journals or treatises
on the risks and causes of infant suffocation or statistical information on the risk of death
from certain infant sleeping arrangements. Clearly, some things can be left to ordinary jury
knowledge and experience, while others cannot. The fatal flaw here is that the prosecution
left its entire case to the jury unaided by the kind of evidence necessary to prove its case.

{52} Defendant’s act of placing a child to sleep in a drawer as a temporary solution to a
broken bassinet is not the kind of obvious risk contemplated by our Legislature as a felony.
It is difficult to conceive that identical conditions would be prosecuted as felony child
endangerment in the absence of the infant’s death. Without additional evidence to establish
significantly greater level of risk of injury or death under these circumstances, the jury’s
conviction is supported primarily by speculation and surmise.

CONCLUSION

{53} For the reasons stated in this Opinion, we reverse all convictions.

15
{54} IT IS SO ORDERED.

____________________________________
RICHARD C. BOSSON, Justice

WE CONCUR:

____________________________________
EDWARD L. CHÁVEZ, Chief Justice

____________________________________
PATRICIO M. SERNA, Justice

____________________________________
CHARLES W. DANIELS, Justice

PETRA JIMENEZ MAES, Justice (concurring in part and dissenting in part)

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

{55} I concur in the majority opinion that the evidence in the present case is insufficient
to establish that the filthy living conditions in Defendant’s home posed a substantial and
foreseeable risk of harm to his three children. I disagree, however, that the evidence was
insufficient to permit the jury reasonably to find that Defendant recklessly endangered the
life or health of five-month old Shelby by placing her to sleep face-down in a small confined
space filled with soft bedding. Accordingly, I respectfully dissent from that portion of the
majority opinion.

{56} The deferential standard by which this Court reviews sufficiency of the evidence
claims is well established.

[T]he reviewing court engages in a two-step process: First it reviews the
evidence [resolving all conflicts and indulging all permissible inferences]
with deference to the findings of the [trier of fact]; then it determines whether
the evidence, viewed in this manner, could justify a finding by any rational
trier of fact that each element of the crime charged has been established
beyond a reasonable doubt.

State v. Myers, 2009-NMSC-016, ¶ 13, __ N.M. __, __ P.3d __ (second alteration in
original) (citation omitted). “Our role is not to weigh the evidence, nor do we substitute
[our] judgment for that of the fact finder so long as there is sufficient evidence to support the
verdict.” State v. Day, 2008-NMSC-007, ¶ 15, 143 N.M. 359, 176 P.3d 1091 (internal
quotation marks and citation omitted).

16
{57} To find Defendant guilty of negligent child abuse contrary to NMSA 1978, Section
30-6-1(D)(1) (2005), the jury was required to find the following essential elements beyond
a reasonable doubt: (1) Defendant caused the child to be placed in a situation that
endangered the child’s life or health; (2) Defendant knew or should have known that
Defendant’s conduct created a substantial and foreseeable risk, Defendant disregarded that
risk, and Defendant was wholly indifferent to the consequences of the conduct and to the
welfare and safety of the child; (3) the child was under the age of eighteen; and (4) this
happened in New Mexico on or between September 7, 2003 through October 2, 2003. See
UJI 14-604 NMRA. The question is not whether this Court is convinced of Defendant’s
guilt beyond a reasonable doubt, but rather, “whether, viewing all of the evidence in a light
most favorable to upholding the jury’s verdict, there is substantial evidence in the record to
support any rational trier of fact being so convinced.” State v. Graham, 2005-NMSC-004,
¶ 7, 137 N.M. 197, 109 P.3d 285.

{58} The evidence established that Shelby’s bassinette had broken approximately a day
or two before her death. Defendant planned to retrieve a crib from his mother, who lived in
Carrizozo, but in the meantime, he fashioned a make-shift bassinette out of a dresser drawer.
Shelby, at five months old, was approximately twenty-six inches in length, and the drawer
was only marginally bigger, measuring 29-by-15 inches. Defendant padded the drawer with
a sheet, a blanket, and a pillow.

{59} On the night of October 1, 2003, Jennifer Wheeler was home alone with Leo, Juan
and Shelby, while Defendant went to Alamogordo and Carrizozo. Wheeler and the children
fell asleep watching television in the living room. At some point Wheeler woke up, changed
Shelby’s diaper, and placed her to sleep in the drawer. Sometime between 3:00 a.m. and
5:00 a.m. the next morning, Defendant arrived home. Shelby woke up, and although
Wheeler tried to give her a bottle, she refused to eat. Wheeler and Defendant put Shelby
back to sleep in the drawer on her stomach because “she liked to go to sleep on her
stomach.” Defendant typically would “neatly tuck[]” the blankets around and underneath
Shelby, sometimes covering her head, to ensure that the blankets remained in place
throughout the night.

{60} A few hours later, Wheeler was shaken awake by Defendant. Defendant was holding
Shelby, who was covered from head-to-toe in a blanket, and said, “Shelby’s not breathing.
She’s not breathing.” Subsequent resuscitation efforts were unsuccessful and Shelby was
pronounced dead later that morning.

{61} The Office of the Medical Investigator launched an investigation into the cause and
manner of Shelby’s death. Cheryl Bunker, a field deputy medical investigator for Otero
County, interviewed Wheeler and Defendant in connection with the investigation. Both
Wheeler and Defendant initially informed Bunker that they had placed Shelby to sleep in a
bassinette. When Bunker inspected the home, however, she could not find a bassinette, but
she did find the drawer filled with soft bedding. Bunker testified that she became concerned
about the drawer because “[t]he sleeping conditions—the baby was placed in a drawer on

17
blankets that were placed inside the drawer. The drawer was—in my opinion—not wide
enough or long enough for an infant to move around freely.” Wheeler and Defendant
subsequently admitted that Shelby had been sleeping in the drawer on the night that she died.

{62} Pamela Wong, a social worker supervisor with the investigations unit for the
Children, Youth and Families Department (Department), also testified about Shelby’s
sleeping environment. She explained that the Department

understands poverty. We understand the difference between poverty and
neglect. There are normally sleeping spaces for children, whether it’s a bed
or a crib or a bassinette. Generally, those items are in homes for children to
sleep on. Pallets on the floor, perhaps. Normally, you don’t see an infant
sleeping in a drawer.

Wong testified that based on her training and experience, the drawer in which Shelby had
been placed to sleep was inappropriate for a child of Shelby’s age and size because “there
was [not] adequate room in that particular drawer for a five-month-old child.”

{63} At trial, the State admitted into evidence a videotape depicting the drawer in the
condition in which it was found by the police on the day that Shelby died. From this
videotape, it appears that the drawer was filled to overflowing with soft bedding. Indeed,
large blankets or sheets can be seen spilling out of the drawer onto the floor. Additionally,
it reasonably could be inferred that the bottom of the drawer was lined with a pillow, which
may have been intended to serve as a make-shift mattress. The videotape, as well as the
drawer and the blankets, was admitted into evidence and, therefore, was available to the jury
for visual inspection during their deliberations.

{64} Doctor Ross Reichard, a forensic pathologist with the Office of the Medical
Investigator, was unable to determine the cause and manner of Shelby’s death based on his
post-mortem examination of her physical condition. Dr. Reichard testified that although
there was no external evidence of physical trauma, he could not exclude the possibility that
Shelby had suffocated to death because

based on our investigation, the decedent had been sleeping in a small drawer
with a fixed wall, just like a regular dresser drawer, with a pad and a blanket.
And, so, one of our concerns in small children is their inability to move and
free themselves if they’re to get into a situation where their airway may be
obstructed. So, a soft material may [occlude] their airway. Their face may
be between, say, the solid drawer, there may be a blanket or a pillow over
which [there was]—based on our investigation, those were likely present.
And, that may have resulted in the child re-breathing the same air, which can
then lead to their death. Unfortunately, there are limits to modern medicine
and pathology as well, and one of those is that there’s certain things that we
can’t determine, based on the autopsy. So, for example, if the airway is

18
 occluded or the—there’s some sort of obstruction to the breathing, we would
not necessarily find any evidence of that on the autopsy. And, so, based on
our investigation, we felt that those things were worrisome enough for us that
the death was best classified as an undetermined cause, and, therefore,
undetermined manner of death.

Dr. Reichard further explained that “[d]epending on the circumstances it can be relatively
easy for a child to suffocate at that age,” and that the magnitude of the risk depends on “the
size and the surrounding environment and the placement of the infant.” Based on Shelby’s
size, the size of the drawer, and the amount of soft bedding inside the drawer, Dr. Reichard
testified that, in his opinion, there was a reasonable possibility that Shelby’s sleeping
environment posed a risk of danger to her life or health.

{65} Aside from suffocation, the other possible cause of Shelby’s death was Sudden Infant
Death Syndrome (SIDS). Dr. Reichard explained that SIDS

is a category of deaths that occur in children that are typically older than one
month of age, and less than six months, and most of them occur between the
ages of one month and four months of age. And, what this is, is a
classification that after—of the death—that after a complete autopsy,
including a scene investigation, you find no explanation for their deaths. So,
it’s a way of categorizing a group of deaths that occur in children, in a
relatively specific time frame. And, it’s felt to be a natural death, although
no exact explanation for why their death is currently known.

Dr. Reichard testified that to reduce the occurrence of SIDS, the Back to Sleep campaign
encourages parents to put their children to sleep on their backs, and that since this campaign
first started in the early 1990s there has been a decrease in the number of SIDS-related
deaths. Shelby’s death, however, could not be classified as a SIDS-related death because
of the reasonable possibility that she had died from suffocation.

{66} Defendant offered the expert testimony of Doctor Chrisley Sparing, a forensic
pathologist and Chief Medical Examiner for the state of Georgia. Dr. Sparing agreed with
Dr. Reichard that the cause and manner of Shelby’s death could not be determined based on
the results of the autopsy because “[w]e know as pathologists that little babies could be
suffocated, and leave no mark on them whatsoever,” and in the present case, there was no
“physical evidence from the autopsy to prove or disprove that something like a pillow or a
blanket or excess bedding caused the child’s death, or that this is just crib death [SIDS].”
Additionally, Dr. Sparing agreed with Dr. Reichard that “infants can be suffocated, you
know, rapidly, within just a few minutes,” and that based on Shelby’s age and size, the size
of the drawer, and the amount of soft bedding inside of the drawer, there was a reasonable
possibility that her sleeping environment posed a danger to her life or health. Specifically,

[i]f the child became entrapped, especially between the bedding—

19
 maybe turned and was up and fell or became lodged in between the bedding
and the edge of the inner lining of the drawer, it’s possible that this could
interfere with the child’s ability to breathe and the child could possibly
suffocate. I have to say in my career, I’ve never seen a child that suffocated
in a drawer before. I can’t tell you it’s impossible, but it’s—I mean, all I can
say is this possibility exists, although I would say it would be relatively
uncommon. Could it happen? Sure. But, that’s the best that I can really say.

{67} Construing the foregoing evidence in the light most favorable to the jury’s verdict,
I believe that it was sufficient to support the jury’s factual finding that Defendant’s conduct
posed a substantial and foreseeable risk to Shelby’s life or health. Bunker, Wong, Dr.
Reichard and Dr. Sparing all testified that the drawer was an inappropriate sleeping
environment for an infant of Shelby’s age and size. Indeed, both Dr. Reichard and Dr.
Sparing agreed that it is very easy for a five-month-old infant to suffocate and that
suffocation can occur in a matter of mere minutes. Additionally, they both agreed that in
light of Shelby’s age and size, the size of the drawer, the excessive amount of soft bedding,
and Shelby’s prone sleeping position, Shelby’s sleeping environment posed a risk of danger
of suffocation. Accordingly, the evidence was sufficient for the jury reasonably to find that
Defendant’s conduct placed Shelby in a situation “that may endanger [her] life or health”
contrary to Section 30-6-1(D)(1).

{68} The majority concludes, however, that the evidence was insufficient to prove that the
risk of danger to Shelby’s life or health was substantial and foreseeable. I respectfully
disagree. As the majority acknowledges, the risk of death by suffocation is a “substantial
injury” of the type “contemplated by our endangerment statute.” Given the severity of the
harm and the ease with which infants may suffocate, parents are on notice that they must be
vigilant in their care and supervision of infants. Indeed, it is common knowledge that many
everyday household items that pose no risk of harm to adults, i.e., plastic bags and items
small enough to fit within a child’s mouth, pose a unique and significant risk of harm to
infants, namely, the risk of death by suffocation. Furthermore, consistent with the expert
testimony in the present case, it is common knowledge that infants are particularly
vulnerable to the risk of suffocation while sleeping and that this risk is heightened when any
of the following factors are present: (1) a soft sleeping surface, (2) a prone sleeping position,
(3) a confined space with fixed walls in which the infant is unable to move about freely, and
(4) soft items that may block the infant’s nose and mouth. In the present case, all of these
risk factors were present and, therefore, the jury reasonably could have found that they
heightened the risk of suffocation to an unreasonable and intolerable degree. In light of the
severity of the harm and the ease and speed with which the harm may occur, it defies logic
and experience to characterize this risk as anything less than substantial and foreseeable.

{69} The majority opinion concludes, however, that no rational juror could have found
that the risk of harm to Shelby was anything more than a remote possibility in light of Dr.
Sparing’s testimony. I disagree. First, I note that the jury was not required to credit Dr.
Sparing’s expert testimony, even if uncontradicted. See State v. Jason F., 1998-NMSC-010,

20
¶ 29, 125 N.M. 111, 957 P.2d 1145; see also State v. Moore, 42 N.M. 135, 160, 76 P.2d 19,
34 (1938) (“The judgments of experts or the inferences of skilled witnesses, even when
unanimous and uncontroverted, are not necessarily conclusive on the jury, but may be
disregarded by it.”). Second, as the following discussion demonstrates, the majority fails to
construe Dr. Sparing’s testimony in the light most favorable to the jury’s verdict.

{70} The record reflects the following colloquy between Dr. Sparing and defense counsel
with respect to the possibility that Shelby had suffocated on soft bedding:

[Defense Counsel]: And, if it did happen, how would you characterize
that, as to cause and manner of death?
[Dr. Sparing]: That would be an accident. I would call it
suffocation, and how it occurred is suffocated in bed
clothes within drawer. That would be considered to
be an accidental death.
....
[Defense Counsel]: Why not homicide if someone puts blankets in there?
[Dr. Sparing]: Because—
[Defense Counsel]: (Inaudible) expertise?
....
[Dr. Sparing]: Because, basically, for an accident, we consider
that—the terminology we use is “unpredictable,”
“unforeseen,” and “unknown.” Basically, a
reasonable individual would not look at an
environment like this and consider the child to be at
risk. It’s a drawer with blankets and bedding in it to
sleep in. . . . But, things can happen, and result in the
child being dead. And, it’s not predictable. It’s not to
say that, you know, you should never, ever, ever do
this. But, the risk, albeit small, exists. And, because
it’s unpredictable and unforeseen, then we consider
those to be accidents. No one intended for such a
death to occur. But, accidents happen in all sorts of
different ways.

On redirect examination, defense counsel clarified Dr. Sparing’s testimony with respect to
the manner of death if an infant suffocates on soft bedding.

[Defense Counsel]: And, you talked about the fact that people are told not
to put their infants on soft bedding. If parents do that,
is that a homicide?
[Dr. Sparing]: I’ve never seen—seen that rule[d], a homicide, or had
a case like that come to my office or under my
supervision.

21
 [Defense Counsel]: Well, why isn’t it—if parents should know better?
[Dr. Sparing]: There’s a difference between a risk that is very, very
small and hypothetical, and all those unmeasurable,
versus that we know carries a great deal of risk. I
mentioned car seats earlier. We know that if you put
an infant in a car seat and strap it in, strap that car seat
in, and there’s a head-on collision, more likely than
not, that infant is going to survive and be okay. If it’s
not in a car seat, if it’s sitting in mama’s lap, or the
car seat isn’t strapped in, and there’s a head-on
collision, the injuries are catastrophic, even fatal,
more often than not. That is something we know,
very, very, very clearly. That’s why car seats are
very, very important. But, bedding, when it comes
down to it, there are certain situations where, I think,
like, say on a water bed. We know now that putting
children on soft water beds, infants on soft water beds
face down, could potentially kill them. Does it kill all
of them? No. A very, very, tiny number. Maybe one
out of a thousand. One out of two or three thousand,
something like that. But, it’s something that
potentially can happen. That doesn’t mean that you
should never, ever, ever, say, put a child on soft
bedding because that’s where you want a child, in soft
bedding. But, there’s a tiny risk that exists that most
of the time is pretty much unpredictable. And,
because it’s speaking of a tiny risk that’s
unpredictable, versus a large risk like a car seat issue
that is very, very predictable, that’s why
recommendations are very difficult to make, as far as
where you put your baby to sleep. Do you put them
on a naked mattress? No, you don’t want to do that.
You want the child comfortable so it will sleep, but
covered up and taken care of. And, the vast
majority—you know—ninety-nine point nine nine . .
. percent, grow up and do just fine.

{71} As the foregoing summary reflects, Dr. Sparing testified that if an infant suffocates
to death on soft bedding, he would categorize the manner of death as an accident, rather than
a homicide, even if the parents should have known better, because an accident is
“unpredictable,” “unforeseen,” and “unknown.” In the present case, it is undisputed that
Shelby’s death, if attributable to her sleeping conditions, was nothing short of a tragic
accident. Nonetheless, accidental harm is not excluded from the purview of Section 30-6-
1(D)(1), which explicitly provides that “[a]buse of a child consists of a person . . .

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negligently, and without justifiable cause, causing or permitting a child to be . . . placed in
a situation that may endanger the child’s life or health.” (Emphasis added.)

{72} This is not to say, however, that mere negligence is sufficient to sustain a conviction
of negligent child abuse. As this Court previously has observed, “the child abuse statute
contains no indication that the legislature intended felony punishment to attach to ordinary
negligent conduct” under Section 30-6-1(D). Santillanes v. State, 115 N.M. 215, 223, 849
P.2d 358, 366 (1993). Indeed, if “‘imprudent and possibly negligent’ conduct were
sufficient to expose a care giver to criminal liability for child endangerment, ‘undoubtedly
the majority of parents in this county would be guilty of child endangering—at least for acts
of similar culpability.’” State v. Massengill, 2003-NMCA-024, ¶ 46, 133 N.M. 263, 62 P.3d
354 (quoting State v. Massey, 715 N.E.2d 235, 238-39 (Ohio Ct. App. 1998)). Accordingly,
the State is required to prove that the defendant acted with criminally negligent intent, that
is, 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, 115 N.M. at 222, 849
P.2d at 365.

{73} In the present case, the evidence was sufficient to prove that Defendant’s conduct
was criminally negligent. The jury reasonably could have inferred that Defendant acted with
reckless disregard with respect to the risk of harm to Shelby by choosing a drawer that was
too small for Shelby’s size, placing a soft pillow on the bottom of the drawer, placing Shelby
to sleep face-down on her stomach, and covering her head-to-toe with an excessive amount
of soft bedding. Defendant could have used a larger drawer or a laundry basket as a make-
shift bassinette or alternatively, he could have procured a crib from his mother in Carizzozo.
Indeed, the evidence established that Defendant was in Carizzozo on the night that Shelby
died, but that he did not bother to stop by his mother’s house to pick up a crib for his infant
daughter. Additionally, Defendant could have placed Shelby to sleep on her back, used less
soft bedding, or arranged the bedding more loosely, all of which would have reduced the risk
of harm to Shelby’s life or health. Defendant, however, did not do any of these things.

{74} Although the State was not required to prove that Defendant actually was aware of
the risk of harm, evidence existed from which the jury reasonably could have inferred
consciousness of guilt. It is well established that lying to the police about the circumstances
surrounding a crime or an accident evidences “a consciousness of guilt that would allow the
[trier of fact] to find a level of awareness on Defendant’s part that his actions were likely to
cause harm.” State v. Worrick, 2006-NMCA-035, ¶ 9, 139 N.M. 247, 131 P.3d 97; see also
State v. Faubion, 1998 -NMCA- 095, ¶ 13, 125 N.M. 670, 964 P.2d 834 (holding that the
defendant’s “lies and misleading actions” are evidence of consciousness of guilt). Defendant
initially lied to Bunker, informing her that Shelby had been sleeping in a bassinette on the
night that she died. The jury reasonably could have inferred that Defendant lied about
Shelby’s sleeping environment because he was aware that this environment posed a
substantial and foreseeable risk of harm to Shelby’s life or health.

{75} For the foregoing reasons, I believe that the evidence was sufficient to support

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Defendant’s conviction of negligent child abuse contrary to Section 30-6-1(D)(1) with
respect to Shelby. I therefore respectfully dissent.

____________________________________
PETRA JIMENEZ MAES, Justice

Topic Index for State v. Julio Chavez, No. 31,202

AE Appeal and Error

AE-SB Substantial or Sufficient Evidence

CT Constitutional Law

CT-DP Due Process

CL Criminal Law

CL-CN Child Abuse and Neglect
CL-FE Felony

CA Criminal Procedure

CA-JI Jury Instructions
CA-SE Substantial or Sufficient Evidence

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