State v. Trossman

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMSC-034

Filing Date: June 22, 2009

Docket No. 31,010

STATE OF NEW MEXICO,

Plaintiff-Respondent,

v.

BRIGETTE TROSSMAN,

Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI
Stephen Bridgforth, District Judge

Hugh W. Dangler, Chief Public Defender
Nancy M. Hewitt, Appellate Defender
Santa Fe, NM

for Petitioner

Gary K. King, Attorney General
Max Shepherd, Assistant Attorney General
Santa Fe, NM

for Respondent

OPINION

CHÁVEZ, Chief Justice.

{1} Defendant Brigette Trossman was convicted of negligently permitting child abuse
by endangerment, contrary to NMSA 1978, Section 30-6-1(D) (2004, prior to amendments
in 2005),1 after she was arrested in a house in Chapparal, New Mexico, where chemicals and

1
Throughout this opinion, our citations refer to Section 30-6-1 as it appeared prior
to the amendments in 2005. As a result, we refer to current Section 30-6-1(I) as Section 30-

1
equipment involved with methamphetamine production were found and the evidence
suggested that her child lived there with her. In addition to the normal instruction for
negligently permitting child abuse, Jury Instruction No. 4 provided 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.

Defendant appealed her conviction to the Court of Appeals, arguing (1) that this instruction
undermined the jury’s responsibility to find all of the essential elements of her charge, and
(2) that there was insufficient evidence to support her conviction. State v. Trossman, No.
26,576, mem. op. at 2 (N.M. Ct. App. Feb. 28, 2008). The Court of Appeals rejected these
arguments, id., and Defendant sought a writ of certiorari from this Court. The Court granted
certiorari on both issues. State v. Trossman, 2008-NMCERT-004, 144 N.M. 48, 183 P.3d
933 (table).

{2} We reverse the Court of Appeals on both issues. First, we hold that Jury Instruction
No. 4, which constituted an evidentiary presumption under our Rules of Evidence, 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. Second, we
conclude that there was insufficient evidence to support Defendant’s conviction of child
abuse. Defendant’s conviction is therefore vacated.

BACKGROUND

{3} The facts in this case are not in dispute. Responding to reports of suspicious
purchases of pseudoephedrine, police followed Billy Glenn, later a co-defendant in this case,
as he and several unidentified adults made additional purchases of ephedrine and matches,
both possible methamphetamine precursors. Glenn was observed entering a house carrying
several bags. Police watched the house that evening and then left for approximately thirty-
six hours, during which time they obtained a search warrant. When the warrant was
executed, police apprehended Defendant, Glenn, and one other female. Inside the house
police found fifty-three items consistent with the presence of a methamphetamine lab.2 One

6-1(F). We also note that Defendant’s indictment and judgment incorrectly refer to the child
abuse by endangerment provision as being found at Section 30-6-1(C) instead of Section 30-
6-1(D).
2
As explicitly described in testimony, these included two metal cans of acetone; one
gallon and a separate quart of denatured alcohol; baggies; scales; a mason jar with a bi-
layered liquid; a heating mantle; a mason jar with a reddish white powdery substance; Red

2
officer also observed what appeared to be a child’s room, although he admitted during cross-
examination that he had no personal knowledge about who lived there or whether a child had
been present at any particular time. However, a social worker who took jurisdiction over
Defendant’s child after the raid later testified that Defendant had told her that Defendant’s
child lived at the house. The social worker also testified that the child had been absent on
the night before the raid, and that she had not asked whether the child had been absent on
any previous nights.

{4} Defendant was charged with violating Section 30-6-1, which at that time provided
in relevant part that:

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 . . . .

F. 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.

{5} At the end of Defendant’s trial, Defendant moved for a directed verdict on the
grounds that there was no evidence “to show that the child was in the proximity or could
have been exposed to [dangerous chemicals and equipment].” The motion was denied. The
parties proceeded to discuss proposed jury instructions and agreed on an instruction on
negligently permitting child abuse under Section 30-6-1(D) based on UJI 14-605 NMRA that
read as follows:

INSTRUCTION NO. 3[.]

[Defendant] has been charged with negligently permitting child abuse
which did not result in death or great bodily harm. For you to find
[Defendant] guilty of child abuse which did not result in death or great bodily
harm, as charged in the Grand Jury Indictment, the state must prove to your
satisfaction beyond a reasonable doubt each of the following elements of the
crime:

Devil lye; a plastic sports bottle; a Pyrex cooking dish; coffee filters; iodine; empty blister
packs for pseudoephedrine or ephedrine (but apparently no pills); hydrogen peroxide; a
cooler; and stained gloves.

3
 1. [Defendant] permitted [her child] to be placed in a situation which
endangered the life or health of [her child];

2. The defendant acted with reckless disregard. To find that
[Defendant] acted with reckless disregard, you must find that [Defendant]
knew or should have known the defendant’s conduct created a substantial and
foreseeable risk, the defendant disregarded that risk and the defendant was
wholly indifferent to the consequences of the conduct and to the welfare and
safety of [her child][;]

3. [Defendant] was a parent, guardian or custodian of the child, or the
defendant had accepted responsibility for the child’s welfare;

4. [Defendant’s child] was under the age of 18;

5. This happened in New Mexico on or about August 12, 2004.

In addition, the State proposed an instruction with the exact wording of Section 30-6-1(F).3
The attorneys for Defendant and her co-defendant objected that such an instruction violated
their clients’ rights to due process because “innocent activity could be construed to meet the
elements of this statute[;]” that the instruction was improper because it could not yet be
found in the UJI; and that the instruction would prevent the jury from finding all of the
required elements of child abuse. The judge suggested modifications to the language of
Section 30-6-1(F), and notwithstanding renewed objections, the jury was eventually
instructed on the judge’s modified version of the statute:

INSTRUCTION NO. 4.

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 [may]
be deemed prima facie evidence of abuse of the child.

Defendant was convicted.

{6} Defendant appealed, continuing to claim that the instruction was flawed and the
evidence was insufficient to convict her. Trossman, No. 26,576, mem. op. at 2. The Court
of Appeals affirmed the conviction. Id. at 8. First, the Court held that Jury Instruction No.
4 was proper because it “simply gave an alternative definition of what can constitute placing

3
The record does not include this proposed instruction, but we are able to infer its
contents from the discussion between the parties in the transcript.

4
a child in a dangerous situation. It did not mandate a conviction . . . .” Id. Second, the
Court held that the evidence was sufficient to support Defendant’s conviction because there
was testimony that her child lived in the house and that being present around the chemicals
was dangerous. Id. at 5-6. We reverse the Court of Appeals and vacate Defendant’s
conviction.

DISCUSSION

I. JURY INSTRUCTION NO. 4 COULD HAVE CONFUSED OR
MISDIRECTED A REASONABLE JUROR

{7} Defendant argues that Jury Instruction No. 4 “mandated a conviction” of child abuse
because it “took away an element from the jury’s determination–the element of whether the
defendant’s actions of having a variety of lawful materials in her house amounted to child
abuse.” In support of this argument, Defendant cites to a series of cases including State v.
Parish, 118 N.M. 39, 878 P.2d 988 (1994), which concern the failure of trial courts to
instruct juries on all of the essential elements of the crime charged. The State responds that
since the Legislature “has gone to the trouble of providing a specific definition of a type of
child abuse by endangerment” under Section 30-6-1(F), it was not error for the trial court to
instruct on that basis. The State contends that Jury Instruction No. 4 did nothing more than
create “a permissive inference,” which did not violate Defendant’s rights because it was
rational for the jury to “make . . . the inference set forth in the challenged instruction, i.e.,
that allowing a child to be in a methamphetamine house is inherently dangerous to the
child’s health and well being.” The Court of Appeals agreed with the State, holding that
Section 30-6-1(F) created “an alternative definition” of child abuse and that nothing
prevented the jury from being instructed on that basis, particularly given the alterations made
by the trial court. Trossman, No. 26,576, mem. op. at 8.

{8} In Parish, 118 N.M. at 41-42, 878 P.2d at 990-91, we explained that jury instructions
can be defective in three ways: (1) they can be facially erroneous, requiring reversal; (2)
they can be vague, in which case the court must “evaluate whether another part of the jury
instructions satisfactorily cures the ambiguity[;]” and (3) they can be contradictory, requiring
reversal because “there is no way to determine whether the jury followed the correct or the
incorrect instruction.” Whatever the case, the ultimate concern of the reviewing court must
be whether “a reasonable juror would have been confused or misdirected.” Id. at 42, 878
P.2d at 991. To determine whether Jury Instruction No. 4 was erroneous under the standards
enunciated in Parish, we must first resolve the conflict between the parties regarding the
import of Section 30-6-1(F).

{9} Rule 11-302(A) NMRA provides that “in criminal cases, presumptions against an
accused, recognized at common law or created by statute, including statutory provisions that
certain facts are prima facie evidence of other facts or of guilt, are governed by this rule.”
(Emphasis added.) A presumption may be instructed to the jury in a criminal trial, subject
to certain restrictions considered later in this opinion. Rule 11-302(C). In the most general

5
terms, “a presumption is a standardized practice, under which certain facts [the basic facts]
are held to call for uniform treatment with respect to their effect as proof of other facts [the
presumed facts].” 2 Kenneth S. Broun, McCormick on Evidence § 342, at 495 (6th ed.
2006). At first glance, the basic facts under Section 30-6-1(F) appear to be both (1) the act
of allowing a child “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”, and (2) the mens rea standard “knowingly, intentionally or
negligently.” These basic facts are given a certain uniform effect (they are “prima facie
evidence”) regarding the presumed fact of child abuse under Section 30-6-1(D).

{10} A careful reading of Sections 30-6-1(D) and (F) requires us to slightly modify this
conclusion, however. First, we note that the acts described in Section 30-6-1(F) are
consistent with only one theory of child abuse: endangerment under Section 30-6-1(D)(1).
Sections 30-6-1(D)(2) and (3) create the other possible forms of child abuse when a child
is “tortured, cruelly confined or cruelly punished” or “exposed to the inclemency of the
weather[,]” respectively. Second, we observe that the mens rea standard of Section 30-6-
1(F) (“knowingly, intentionally or negligently”) is nothing more than a restatement of the
mens rea standard under Section 30-6-1(D). Given these considerations, we hold that the
presumption created by Section 30-6-1(F) can only be understood to allow the basic fact of
allowing a child “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” to serve as evidence of the essential element of endangerment under
Section 30-6-1(D)(1), when this theory of child abuse is at issue. See UJI 14-605.

{11} Rule 11-302 also specifies the effect that the basic facts under Section 30-6-1(F)
should have regarding the presumed fact of endangerment. The jury may, but is not required
to, infer the presumed fact upon evidence of the basic facts; in other words, “[t]he court is
not authorized to direct the jury to find a presumed fact against the accused[,]” if the jury
finds the basic facts. Rule 11-302(B); see also Rule 11-302(C). “This provision
incorporates the constitutional requirement that presumptions not be conclusive in criminal
cases even if unrebutted.” State v. Matamoros, 89 N.M. 125, 127, 547 P.2d 1167, 1169 (Ct.
App. 1976) (internal quotation marks and citation omitted); see, e.g., State v. Jones, 88 N.M.
110, 112, 537 P.2d 1006, 1008 (Ct. App. 1975) (concluding that an instruction was
impermissibly mandatory when it read that “the requisite knowledge or belief that the
property has been stolen is presumed in the case of an individual who is found in possession
or control of property stolen from two or more persons on separate occasions.” (internal
quotation marks omitted) (emphasis added)). As the United States Supreme Court has
explained, to satisfy the mandates of due process, a presumption “must not undermine the
factfinder’s responsibility at trial, based on evidence adduced by the State, to find the
ultimate facts beyond a reasonable doubt.” County Court of Ulster County v. Allen, 442 U.S.
140, 156 (1979). What our criminal rules refer to as a presumption is more properly termed
a permissive inference, the purpose of which “is to guide the jury by highlighting the
propriety of drawing a factual inference they might otherwise be naturally less likely to
draw.” 1 Michael H. Graham, Handbook of Federal Evidence § 303:4, at 296 (6th ed. 2006);

6
see also Jones, 88 N.M. at 113, 537 P.2d at 1009 (“The effect of [the predecessor of Rule
11-302] . . . is to abolish ‘true’ presumptions in criminal cases.”).

{12} Rule 11-302(C) guides the trial court in assuring that a jury instruction is given effect
only as a permissive inference:

Whenever the existence of a presumed fact against the accused is submitted
to the jury, the court shall give an instruction that the law declares that the
jury may regard the basic facts as sufficient evidence of the presumed fact
but does not require it to do so. In addition, if the presumed fact establishes
guilt or is an element of the offense or negatives a defense, the court shall
instruct the jury that its existence must, on all the evidence, be proved
beyond a reasonable doubt.

UJI 14-5061 NMRA puts the mandates of Rule 11-302 into a specific form that “shall be
given when the state relies upon a statutory ‘presumption’ to prove an element of the crime
or when an element is inferred (‘implied’) from certain facts.” UJI 14-5061 Use Note.
Pursuant to our reading of the statute, such an instruction based on UJI 14-5061 could have
been given in addition to an instruction on the essential elements of child abuse by
endangerment4 and should have read as follows:

Proof that [Defendant] permitted [her child] to be placed in a situation
which endangered the life or health of [her child] is an essential element of
negligently permitting child abuse as defined elsewhere in these instructions.
The burden is on the state to prove that [Defendant] permitted [her child] to
be placed in a situation which endangered the life or health of child beyond
a reasonable doubt.

In this case if you find that it has been proved that [Defendant]
allowed [her child] 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, you may but are not
required to find that it has been proved that [Defendant] permitted [her child]
to be placed in a situation which endangered the life or health of [her child].
You must consider all of the evidence in making your determination. In
order to find the defendant guilty of negligently permitting child abuse, you
must be convinced beyond a reasonable doubt that the defendant permitted
[her child] to be placed in a situation which endangered the life or health of
[her child].

4
For example, Jury Instruction No. 3 in Defendant’s case, supra. See also UJI 14-
605.

7
{13} Although the trial judge made several well-considered changes to the language of
Section 30-6-1(F) before instructing the jury–for instance, changing “shall” to “may”–Jury
Instruction No. 4 entirely lacked the marked emphasis placed by Rule 11-302 and UJI 14-
5061 on the necessity that the jury find the essential element of endangerment beyond a
reasonable doubt. Thus, while we disagree with Defendant’s characterization of Jury
Instruction No. 4 as mandating a finding of guilt, we believe that the risk of confusion
caused by this instruction is equally troubling. See State v. Montano, 1999-NMCA-023, ¶
18, 126 N.M. 609, 973 P.2d 861 (reversing a conviction for aggravated battery when a jury
instruction implied that the jury need not find that the alleged weapon could have caused
death or serious injury and was therefore ambiguous). We perceive a twofold risk under
Jury Instruction No. 4: (1) the jury might have understood it to supplant the reasonable
doubt standard; and (2) the jury might not have understood that the presumption did not
relieve the jury of the necessity of finding the essential element of endangerment.5 See
Ulster County, 442 U.S. at 156.

{14} Neither can we conclude that other instructions cured the error. See State v. Crosby,
26 N.M. 318, 324, 191 P. 1079, 1081 (1920) (“If this instruction were ambiguous and
incomplete, and also capable of another, different, and correct interpretation . . . it might then
be cured by the subsequent instruction . . . .”). Although Jury Instruction No. 2 provided that
“[t]he burden is always on the state to prove guilt beyond a reasonable doubt[,]” it did not
explain what it was, exactly, that the jury must find beyond a reasonable doubt. If instructed
correctly per UJI 14-5061, Jury Instruction No. 4 would have explained that “[i]n order to
find the defendant guilty of negligently permitting child abuse, you must be convinced
beyond a reasonable doubt that the defendant permitted [her child] to be placed in a
situation which endangered the life or health of [her child]” (emphasis added). It is the
ultimate fact of endangerment that must be proven beyond a reasonable doubt–not just the
basic facts from which the inference may be drawn. We must vacate Defendant’s conviction
where there was a possibility that the jury could have convicted her without finding each of
the elements of the crime charged beyond a reasonable doubt. See Parish, 118 N.M. at 44-
46, 878 P.2d at 993-95 (reversing a conviction when jury instructions failed to place on the

5
In fact, there was a third risk as well. As we noted above, the mens rea standard in
Section 30-6-1(F) is merely a repetition of the mens rea standard in Section 30-6-1(D), and
as such would create a needless redundancy if–as happened in the case at bar–it were
instructed in the presumption as well as in the normal elements of child abuse. In addition,
by including the “knowingly, intentionally or negligently” standard verbatim in Jury
Instruction No. 4, the trial court may have violated our holdings requiring criminal
negligence in child abuse cases. See, e.g., State v. Mascarenas, 2000-NMSC-017, ¶¶ 12, 16,
129 N.M. 230, 4 P.3d 1221 (holding that because criminal negligence is required to prove
child abuse, an instruction incorporating both the words “negligently” and “reckless
disregard” resulted “in the distinct possibility of juror confusion as to the mens rea necessary
for conviction” and mandated reversal (internal quotation marks and citation omitted)).
However, this issue is not before us.

8
State the burden of proving that the defendant did not act in self-defense).

II. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT DEFENDANT’S
CONVICTION

{15} Defendant claims that the evidence presented at trial was insufficient to support her
conviction because it did not show that her child was endangered, since he “was not in the
residence at the time that any manufacture of any controlled substance took place.”
Defendant argues that our review must employ the criterion of endangerment set forth by our
child abuse precedents, that endangered children must be “exposed to a substantial risk to
their health.” State v. Trujillo, 2002-NMCA-100, ¶ 21, 132 N.M. 649, 53 P.3d 909. The
State argues that Section 30-6-1(F) creates its own substantive standard that obviates the
need to determine whether there was sufficient evidence of endangerment, as defined by our
precedents. Moreover, the State argues that even under the endangerment standard,
testimony established the child’s presence in the house and the dangers that would have
resulted from being in the presence of the seized chemicals. The Court of Appeals
concluded the jury could infer that Defendant’s child was endangered because dangerous
chemicals were stored in the house where he lived. Trossman, No. 26,576, mem. op. at 5-6.

{16} To decide whether there was sufficient evidence, we conduct the following analysis:
“[i]nitially, the evidence is viewed in the light most favorable to the verdict. Then the
appellate court must make a legal determination of 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. Lopez, 2008-NMCA-111,
¶ 14, 144 N.M. 705, 191 P.3d 563 (internal quotation marks and citation omitted). We
“indulge all permissible inferences in favor of upholding the verdict.” State v. Apodaca, 118
N.M. 762, 766, 887 P.2d 756, 760 (1994). Also, in reviewing such cases for sufficient
evidence, we must not “parse[] the testimony and view[] the verdict only in light of the
probative value of individual pieces of evidence,” but rather “view the evidence as a whole.”
State v. Graham, 2005-NMSC-004, ¶ 13, 137 N.M. 197, 109 P.3d 285.

{17} As an initial matter, we must settle the debate between the parties over whether the
sufficiency of the evidence in this case should be decided, as Defendant urges, under
traditional endangerment standards or, as the State argues, solely with reference to Section
30-6-1(F). We concede that the State’s position has, on its face, a certain appeal. Section
30-6-1(F) is framed in terms of “prima facie evidence.” In general legal parlance, “prima
facie evidence” is “[e]vidence that will establish a fact or sustain a judgment unless
contradictory evidence is produced.” Black’s Law Dictionary 598 (8th ed. 2004); see also
Matamoros, 89 N.M. at 127, 547 P.2d at 1169. The Court of Appeals applied this definition
to a provision similar to Section 30-6-1(F) in In re Shaneace L., 2001-NMCA-005, ¶ 12, 130
N.M. 89, 18 P.3d 330. In Shaneace L., the Court reviewed the defendant’s conviction under
NMSA 1978, Section 30-20-12 (1967) (“Use of telephone to terrify, intimidate, threaten,
harass, annoy or offend”) for sufficiency of the evidence in light of Section 30-20-12(B),
which provided that “[t]he use of obscene, lewd or profane language or the making of a

9
threat or statement . . . shall be prima facie evidence of intent to terrify, intimidate, threaten,
harass, annoy or offend.” 2001-NMCA-005, ¶ 12. Unlike the case at bar, in Shaneace L.,
no instruction was given on the basis of this provision. The Court of Appeals held that
Section 30-20-12(B) was the Legislature’s way of mitigating “the difficulty in proving the
requisite statutory intent[.]” Id. As such, the Court of Appeals concluded that “testimony
that Child threatened to kill [the victim] and her baby shortly after the placing of the
telephone call is sufficient evidence from which the children’s court could infer that Child
had the intent to annoy or harass [the victim].” Id. In short, the Court viewed the “prima
facie evidence” provision as creating an evidentiary standard for use in reviewing claims of
insufficient evidence. If we were to apply this reasoning to the case at bar, we would hold
that there was sufficient evidence of endangerment if a rational jury could have found the
basic facts described in Section 30-6-1(F) beyond a reasonable doubt. This would permit
a finding of endangerment when, for example, a child was allowed to enter and remain in
a house containing iodine that the child’s parent planned to use in methamphetamine
production, even if the situation would not qualify as endangerment under our precedents.

{18} We cannot adopt this reasoning. To interpret Section 30-6-1(F) in accordance with
Shaneace L. would bring us into conflict with our specific rule on presumptions. Rule 11-
302(B) requires that:

When the presumed fact establishes guilt or is an element of the offense or
negatives a defense, the court may submit the question of guilt or of the
existence of the presumed fact to the jury, if, but only if, a reasonable juror
on the evidence as a whole, including the evidence of the basic facts, could
find guilt or the presumed fact beyond a reasonable doubt.

When the Legislature has directed that one or more basic facts may be considered prima
facie evidence of a presumed fact, the trial court must test the sufficiency of the evidence of
the presumed fact before the jury may be instructed that the presumed fact may be inferred
from the basic fact or facts. In Defendant’s case, Rule 11-302(B) requires that the trial court
be satisfied that sufficient evidence has been presented of the child’s endangerment before
giving an instruction in accordance with UJI 14-5061. As discussed above, this requirement
assures that the presumption does not “undermine the factfinder’s responsibility at trial,
based on evidence adduced by the State, to find the ultimate facts beyond a reasonable
doubt.” Ulster County, 442 U.S. at 156. An evidentiary presumption does not change the
State’s burden to establish the essential elements of the crime without reference to the
presumption itself. Accordingly, for the purposes of our review, the evidence must have
been sufficient to prove endangerment under Section 30-6-1(D)(1).

{19} For this reason, to the extent that Shaneace L. suggests that a statutory provision like
Section 30-6-1(F), making a basic fact prima facie evidence of a presumed fact, is a standard
for deciding the sufficiency of the evidence, it is overruled. However, we have no quarrel
with the ultimate outcome of Shaneace L.; there was certainly sufficient evidence of intent
in that case, not because of the presumption, but because of the natural inference that flows

10
from threatening behavior to the intent to annoy or harass. See, e.g., State v. Silva,
2008-NMSC-051, ¶ 18, 144 N.M. 815, 192 P.3d 1192 (observing that “[i]ntent is subjective
and is almost always inferred from other facts in the case, as it is rarely established by direct
evidence” (internal quotation marks and citation omitted)).

{20} Viewing the evidence as a whole under the endangerment standard, we are compelled
to agree with Defendant that there was insufficient evidence to support her conviction. We
have held that in creating the crime of child abuse by endangerment, “the Legislature did not
intend to criminalize conduct creating a mere possibility, however remote, that harm may
result to a child.” Graham, 2005-NMSC-004, ¶ 9 (internal quotation marks and citations
omitted).

In making this offense a third degree felony, the legislature intended to
address conduct with potentially serious consequences to the life or health of
a child. The coupling in the statute of the word “health” with the word “life”
suggests to us that the legislature intended to address situations in which
children are exposed to a substantial risk to their health.

Trujillo, 2002-NMCA-100, ¶ 21; see also UJI 14-603 NMRA (requiring a “substantial and
foreseeable risk” to the child). In State v. Jensen, 2006-NMSC-045, ¶ 10, 140 N.M. 416,
143 P.3d 178, we explained that “[p]roof of child endangerment is sufficient for a conviction
if a defendant places a child within the zone of danger and physically close to an inherently
dangerous situation.”

{21} Applying the substantial and foreseeable risk standard, our courts have found
sufficient evidence of endangerment when the defendant invited a minor to drink alcohol,
view pornography, and eat possibly tainted food in a filthy house, id. ¶¶ 15-16; when
marijuana, a controlled substance determined by the Legislature to be hazardous, had been
left by the defendant in his house in locations where children had been playing just prior to
its discovery and in a baby’s crib, Graham, 2005-NMSC-004, ¶¶ 10-12; when the defendant
drove drunk and in a dangerous manner with her children in the car, State v. Castañeda,
2001-NMCA-052, ¶ 22, 130 N.M. 679, 30 P.3d 368; and when the defendant pointed a gun
at a woman and threatened to kill her while her daughter stood behind her, State v.
McGruder, 1997-NMSC-023, ¶¶ 37-38, 123 N.M. 302, 940 P.2d 150. Our courts have found
insufficient evidence of child abuse by endangerment when the defendant had allowed a
stroller to roll in front of him beyond his reach and it tipped over, injuring the child, State
v. Massengill, 2003-NMCA-024, ¶ 47, 133 N.M. 263, 62 P.3d 354; when the defendant
assaulted the child’s mother while the child was in a different part of the house, Trujillo,
2002-NMCA-100, ¶¶ 19-20, 132 N.M. 649, 53 P.3d 909; and when the defendant had left
his child in a car with the child’s mother, ten to fifteen feet from the defendant’s drug
transaction, State v. Roybal, 115 N.M. 27, 34, 846 P.2d 333, 340 (Ct. App. 1992). These
cases clearly require the State to prove the child’s presence in a situation where harm was
both probable and sufficiently grave to justify a criminal sanction.

11
{22} In this case, we are concerned with the lack of evidence that establishes the presence
of the child in the home on or about August 12, 2004 and under conditions that could have
endangered his life or health. The evidence supporting the jury’s verdict is as follows. A
social worker testified that Defendant told her that the child “lived with [Defendant]” at the
house in Chapparal, but could provide no specific dates that the child was present at the
house, and in fact stated that the child was not present the night before the raid. A police
officer testified that he had seen what appeared to be a child’s room in the house but
conceded that he had no personal knowledge about who lived in the room or when he or she
had been present. The mere fact that the child normally resided in the home is insufficient.
The Legislature requires actual presence, as evidenced by the basic facts detailed in Section
30-6-1(F)–that the child be allowed to enter or remain in the building at the relevant time.
Similarly, every New Mexico case cited above has as its premise that the child was actually
present when the dangerous situation occurred.

{23} In addition, our cases require a greater showing of risk of harm. Here, there was
testimony that on the day of the raid, the house contained numerous items that were most
likely used for methamphetamine production in the house. However, there was no evidence
regarding when any of the items had been taken into the house, with the possible exception
of some matches, pseudoephedrine, and ephedrine, which testimony implied may have been
taken into the house about thirty-six hours before the raid. Police testified that some
methamphetamine labs can be moved quickly from place to place and that others cannot, but
did not specify into which category the lab in the house fell. Witnesses testified that some
of the materials found in the house could be dangerous: iodine could result in burns, lye is
a carcinogen, and organic solvents like acetone could be dangerous. However, there was no
evidence that any of these legal, household chemicals were actually stored in a manner that
could endanger a child in the house. There was ample evidence that the process of creating
methamphetamine is extremely hazardous, releasing toxic gases and creating the potential
for fires. However, there was no evidence regarding when or how often methamphetamine
production had occurred in the house. Indeed, testimony suggested that this process takes
only six to eight hours. There was evidence that, because of the hazards inherent in
methamphetamine production and the likelihood that an entire house used in processing
methamphetamine could become contaminated, police typically use fully contained suits to
enter houses containing methamphetamine labs. However, there was no evidence that the
house in Chapparal was actually contaminated. Finally, we note that no methamphetamine
was found in the house.

{24} Viewing the evidence as a whole, we conclude that there was not sufficient evidence
to support a finding of child abuse by endangerment. We concede that if the State had
produced evidence that Defendant had allowed her child to be present during the process of
methamphetamine production, or had stored such dangerous chemicals in ways that could
have harmed her child, we would be highly inclined, in light of the precedents cited above,
to conclude that there was sufficient evidence that she placed her child’s life or health at risk.
Cf. Graham, 2005-NMSC-004, ¶¶ 10-12 (finding sufficient evidence of endangerment when
the defendant had allowed children to play in the vicinity of marijuana and marijuana was

12
found in a child’s crib). In the case before us, however, the State failed to provide any
evidence whatsoever that Defendant allowed her child to be present in the house under
hazardous conditions. Although a jury is certainly entitled to draw reasonable conclusions
from the circumstantial evidence produced at trial, see id. ¶ 10, it must not be left to
speculate in the absence of proof. See Silva, 2008-NMSC-051, ¶ 19 (reversing a conviction
of tampering with evidence when the State showed that the police had failed to find a
weapon that was previously in the defendant’s possession, and did not produce any evidence
that defendant had acted in any way to hide or destroy the weapon). In State v. Leal, 104
N.M. 506, 510, 723 P.2d 977, 981 (Ct. App. 1986), the Court of Appeals overturned a
conviction for negligently permitting child abuse when the child’s injuries occurred at
Defendant’s residence within twelve to eighteen hours before the child was taken to the
hospital, but no specific evidence placed Defendant at the scene when the violence was
perpetrated by another. We believe that, just as “[t]he fact that an injury occurred is not
sufficient to prove this defendant guilty[,]” id., in the case at bar, the likelihood that a
hazardous activity probably took place in the house at some time is not sufficient to prove
Defendant guilty of allowing her child to be present while it took place. There was no
testimony that placed Defendant’s child at the house under any hazardous conditions or
suggested that hazardous conditions must have been ongoing in such a way that the jury
could have judged the probability that the child must have encountered them at some point.
Similarly, there was no testimony that indicated the house was actually contaminated or
chemicals were stored in such a way that the child’s presence at any time would have been
dangerous. Even if the jury could have concluded that at some point over the months prior
to the arrest, Defendant’s child was likely to have been endangered by Defendant’s
activities, it would not have been entitled to convict; the jury instructions only charged
Defendant for conduct occurring “on or about August 12, 2004.” The State simply did not
present any evidence to allow the jury to draw the specific inferences required for it to find
endangerment. For these reasons, we find that there was insufficient evidence to support
Defendant’s conviction of child abuse.

CONCLUSION

{25} The Court of Appeals’ opinion is reversed. Because the jury was instructed
improperly and because there was insufficient evidence to convict Defendant, her conviction
is vacated.

{26} IT IS SO ORDERED.

____________________________________
EDWARD L. CHÁVEZ, Chief Justice

WE CONCUR:

____________________________________
PATRICIO M. SERNA, Justice

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____________________________________
RICHARD C. BOSSON, Justice

____________________________________
CHARLES W. DANIELS, Justice

MAES, Justice (specially concurring).

MAES, Justice (specially concurring).

{27} I concur in the majority opinion. I write separately, however, because I disagree with
the majority that “[t]he mere fact that the child normally resided in the home is insufficient”
to prove that the child was permitted “to enter or remain” in the home pursuant to NMSA
1978, Section 30-6-1(F) (2004, prior to amendments in 2005). I believe that, absent
evidence to the contrary, it is reasonable to infer that a ten-year-old child sleeps in his
primary residence and, therefore, the evidence in the present case was sufficient to prove that
Defendant permitted the child to enter or remain in the home on the night of August 10,
2004. Nonetheless, for the reasons explained in the majority opinion, the evidence was
insufficient to prove that the chemicals or equipment subsequently found in the home on the
morning of August 12 posed a risk of danger to the child’s life or health approximately two
days earlier, on the night of August 10. As aptly stated by the majority, “in the case at bar,
the likelihood that a hazardous activity probably took place in the house at some time is not
sufficient to prove Defendant guilty of allowing her child to be present while it took place.”
Accordingly, the evidence was insufficient to support Defendant’s conviction of negligently
permitting child abuse contrary to Section 30-6-1(D).

____________________________________
PETRA JIMENEZ MAES, Justice

Topic Index for State v. Trossman, No. 31,010

AE APPEAL AND ERROR

AE-AR Appellate Review
AE-SR Standard of Review
AE-SB Substantial or Sufficient Evidence

CL CRIMINAL LAW

CL-CN Child Abuse and Neglect
CL-CL Controlled Substances

CA CRIMINAL PROCEDURE

14
CA-BP Burden of Proof
CA-JI Jury Instructions
CA-SF Standard of Proof
CA-SE Substantial or Sufficient Evidence

EV EVIDENCE

EV-PS Presumptions
EV-SS Substantial or Sufficient Evidence

JI JURY INSTRUCTIONS

JI-CJ Criminal Jury Instructions
JI-IJ Improper Jury Instructions

15