IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number: 2005-NMSC-004
Filing Date: March 1, 2005
Docket No. 28,286
STATE OF NEW MEXICO,
Plaintiff-Petitioner,
v.
ANTONIO GRAHAM,
Defendant-Respondent.
ORIGINAL PROCEEDING ON CERTIORARI
Frank K. Wilson, District Judge
Patricia A. Madrid, Attorney General
Patricia A. Gandert, Assistant Attorney General
Santa Fe, NM
for Petitioner
John Bigelow, Chief Public Defender
William A. O'Connell, Assistant Appellate Defender
Santa Fe, NM
for Respondent
OPINION
SERNA, Justice.
{1} Following a jury trial, Defendant Antonio Graham was convicted of, among other
charges, child abuse, contrary to NMSA 1978, § 30-6-1 (2001). On appeal, the Court of
Appeals affirmed Defendant's other convictions but reversed his conviction of child abuse
on the basis of insufficient evidence. State v. Graham, 2003-NMCA-127, ¶ 3, 134 N.M.
613, 81 P.3d 556. This Court granted the State's petition for writ of certiorari to the Court
of Appeals, and we now reverse.
I. Facts
{2} Defendant lived at the residence of his girlfriend, Amanda Kelly, with their two
children, ages one and three. On September 1, 2000, police sought to execute an arrest
warrant for Defendant at Kelly's house. Police officers apprehended Defendant outside
the house in a truck. With the consent of the owner of the truck, the officers found crack
cocaine in a search of the truck. At that point, Kelly stepped out of the house and asked
what was happening. The officers smelled a strong odor of burnt marijuana emanating
from the house. They obtained a search warrant for the house. Inside, the officers found
additional crack cocaine, several plastic bags with marijuana, a marijuana pipe, and a
hanging scale in a dresser drawer in the master bedroom. The officers also noticed rolling
papers and marijuana residue, including seeds and stems, on top of a different dresser.
Additionally, the officers found a marijuana roach on the living-room floor in front of the
sofa and a marijuana bud in a crib in the master bedroom. The officers also recovered a
plastic sandwich bag with a small amount of marijuana just inside the front door on a
table next to a fish tank. The officers saw two infants in the house and noticed that they
were in diapers. The house was dirty and untidy, with soiled clothes on the floor
throughout the house and unwashed dishes with old food on them. Along with various
drug charges, the State charged Defendant with child abuse.
{3} At trial, Officer Lee Wilder testified that the bud is the most desirable part of the
marijuana plant that people generally smoke. It is the part of the plant containing a high
concentration of tetrahydrocannabinols. Officer Dusty Collins explained that marijuana
dries in buds that are broken up and put in bowls or cigarettes to smoke. The bud found
in the crib was in one solid piece with the stem.
{4} Kelly testified that she was unaware of the marijuana on the floor of the living
room and in the crib. She stated that if the children had ingested the marijuana she
believed that they would have become sick. Kelly testified that Defendant told her that
the presence of the marijuana on the living room floor and in the baby's crib was his fault
and that he was sorry. In response to a question about whether drugs were more
important to Defendant than his children, Kelly recited Defendant's statement that his
only thoughts were about drinking, smoking dope, selling drugs, and running the streets.
{5} Two witnesses testified that they were inside Kelly's house immediately before
Defendant's arrest on September 1, 2000. These witnesses testified that while they were
in the living room they saw Kelly's two children running around the house and playing.
Officer Collins testified that the marijuana in the living room was accessible to the
children. In addition, a photograph of the bud inside the crib was admitted as an exhibit.
II. Standard of Review
{6} "[T]he test to determine the sufficiency of evidence in New Mexico . . . is whether
substantial evidence of either a direct or circumstantial nature exists to support a verdict
of guilt beyond a reasonable doubt with respect to every element essential to a
conviction." State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). We have
explained that this test involves two separate parts. State v. Coffin, 1999-NMSC-038, ¶
73, 128 N.M. 192, 991 P.2d 477; State v. Sanders, 117 N.M. 452, 456, 872 P.2d 870, 874
(1994). First, "[a] reviewing court must view the evidence in the light most favorable to
the state, resolving all conflicts therein and indulging all permissible inferences therefrom
in favor of the verdict." Sutphin, 107 N.M. at 131, 753 P.2d at 1319. Second, an
appellate court "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." Sanders, 117 N.M. at 456, 872 P.2d at 874
(emphases added).
{7} In setting out the standard for reviewing sufficiency of the evidence, the Court of
Appeals stated that "the evidence and inferences drawn from that evidence must be
sufficiently compelling so that a hypothetical reasonable factfinder could have reached `a
subjective state of near certitude of the guilt of the accused.'" Graham, 2003-NMCA-127,
¶ 12 (quoted authority omitted). It is indeed true that the standard of beyond a reasonable
doubt has been described as "a subjective state of near certitude of the guilt of the
accused." Jackson v. Virginia, 443 U.S. 307, 315 (1979). This standard has also been
described as being beyond "a doubt based upon reason and common sense–the kind of
doubt that would make a reasonable person hesitate to act in the graver and more
important affairs of life." UJI 14-5060 NMRA 2005. However, in articulating the
reasonable doubt standard referenced by the Court of Appeals, the United States Supreme
Court emphasized that an appellate court reviewing for sufficiency does not
ask itself whether it believes that the evidence at the trial established guilt
beyond a reasonable doubt. Instead, the 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. This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts. Once a defendant has been found guilty of the crime
charged, the factfinder's role as weigher of the evidence is preserved
through a legal conclusion that upon judicial review all of the evidence is
to be considered in the light most favorable to the prosecution.
Id. at 318-19 (citation, quotation marks, and quoted authority omitted). We have used
similar cautionary language: "A reviewing court may neither reweigh the evidence nor
substitute its judgment for that of the jury." Sutphin, 107 N.M. at 131, 753 P.2d at 1319.
Thus, the question is not whether this Court is convinced of Defendant's guilt beyond "a
doubt based upon reason and common sense–the kind of doubt that would make a
reasonable person hesitate to act in the graver and more important affairs of life." UJI 14-5060. Rather, the question is 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. "[S]ubstantial evidence means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion .
. . ." State v. Lujan, 103 N.M. 667, 669, 712 P.2d 13, 15 (Ct. App. 1985), quoted in State
v. Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661.
III. Sufficiency of the Evidence
{8} We begin our review of the sufficiency of evidence to support Defendant's
conviction with the elements of child abuse. For the form of the crime with which
Defendant was charged, the State had the burden of proving beyond a reasonable doubt
that Defendant caused a child or children under the age of eighteen to be placed in a
situation that may have endangered their life or health and did so with a reckless
disregard. Section 30-6-1(A)(3), (D)(1). A reckless disregard requires that Defendant
"knew or should have known [his] conduct created a substantial and foreseeable risk, [he]
disregarded that risk and . . . was wholly indifferent to the consequences of the conduct
and to the welfare and safety" of the child or children. UJI 14-604 NMRA 2005.
{9} By including endangerment in Section 30-6-1, the Legislature expressed its intent
to extend the crime of child abuse to certain conduct even if the child has not suffered
physical harm. State v. Ungarten, 115 N.M. 607, 609, 856 P.2d 569, 571 (Ct. App.
1993). "The [L]egislature's decision to criminalize the conduct described by the statute
reflects a compelling public interest in protecting defenseless children." Lujan, 103 N.M.
at 671, 712 P.2d at 17; accord Santillanes v. State, 115 N.M. 215, 219, 849 P.2d 358, 362
(1993). "[C]hildren, who are often times defenseless, are in need of greater protection
than adults." State v. Lucero, 87 N.M. 242, 245, 531 P.2d 1215, 1218 (Ct. App. 1975).
However, in designating the crime as, at a minimum, a third degree felony, Section 30-6-1(E), the Legislature did not intend to criminalize conduct creating "a mere possibility,
however remote, that harm may result" to a child. Ungarten, 115 N.M. at 609, 856 P.2d
at 571; accord State v. Coe, 92 N.M. 320, 321, 587 P.2d 973, 974 (Ct. App. 1978)
(rejecting the argument "that because of its negligence requirement the statute covers any
and all harm that might befall the child"), overruled on other grounds by Santillanes, 115
N.M. at 225 & n.7, 849 P.2d at 368 & n.7. "There must be `a reasonable probability or
possibility that the child will be endangered.'" State v. McGruder, 1997-NMSC-023, ¶ 37,
123 N.M. 302, 940 P.2d 150 (quoting Ungarten, 115 N.M. at 609, 856 P.2d at 571)
(quotation marks omitted).
{10} In reviewing the evidence relevant to the charge of child abuse, the Court of
Appeals stated that there was "no direct evidence that the two children were ever close to
the drugs that were found and no direct or circumstantial evidence that the presence of the
drugs posed a direct and imminent threat of danger to them." Graham, 2003-NMCA-127,
¶ 26. We first note that direct evidence is not required. State v. Bell, 90 N.M. 134, 137,
560 P.2d 925, 928 (1977). We also disagree with this assessment of the evidence. With
respect to proximity, two witnesses testified that, while in the living room, they observed
the children running around the house immediately before the arrest and search. Officer
Collins testified that the marijuana on the floor in front of the sofa was accessible to the
children. In addition, a whole marijuana bud was found in a crib, a piece of furniture that
functions as a sleeping area for an infant. We believe that this evidence supports a
reasonable inference that the children were in the immediate vicinity of the marijuana,
that it was accessible to them, and that there was a reasonable possibility that they would
come in contact with the controlled substance. See State v. Romero, 79 N.M. 522, 524,
445 P.2d 587, 589 (Ct. App. 1968) ("An inference is merely a logical deduction from
facts and evidence.") (quoting State v. Jones, 39 N.M. 395, 401, 48 P.2d 403, 406
(1935)). The Court of Appeals indicated that there was no evidence that the crib was
used for either child. Graham, 2003-NMCA-127, ¶ 21. However, the State introduced a
photograph depicting the contents and state of the crib at the time of the incident. Two
police officers testified that the crib was in the master bedroom and that the bud in the
crib was found underneath a teddy bear. This evidence, as well as the inherent purpose of
this piece of furniture and the ages of the children, supports a reasonable inference that
the crib was being used as a sleeping area for at least one of the children. From the
testimony that the officers did not see the bud until they picked up the teddy bear, and
from the absence of any evidence suggesting that the marijuana had just been put in the
crib, a reasonable inference could also be drawn that the bud had been in the crib while
the child slept.
{11} With respect to the danger to the children, the Court of Appeals discounted the
testimony of Kelly. Noting that no objection had been made to Kelly's testimony, the
Court nonetheless determined that Kelly's testimony was inadmissible and "that
inadmissible testimony to which no objection is made has only such probative value as its
rational persuasive power." Graham, 2003-NMCA-127, ¶ 21. Irrespective of its
admissibility, we believe that the Court of Appeals applied an incorrect standard in
reviewing Kelly's testimony. For the proposition that it could weigh Kelly's testimony,
the Court of Appeals relied on State v. Vigil, 97 N.M. 749, 752, 643 P.2d 618, 621 (Ct.
App. 1982). We believe the Court of Appeals' reliance on Vigil is misplaced. In Vigil,
the testimony at issue was hearsay, and it was admissible, despite the existence of an
objection by the defendant, because, as a probation revocation, the proceeding was not
governed by the Rules of Evidence. Id. at 750-51, 643 P.2d at 619-20. The question on
appeal was whether hearsay alone could establish a probation violation. Id. at 751, 643
P.2d at 620. Under these circumstances, the Court assessed the rational persuasive power
of the testimony. Id. at 752, 643 P.2d at 621. This evaluation of the weight of testimony
has similarly been restricted to hearsay serving as the sole evidence supporting a verdict
in other cases. See State v. Romero, 67 N.M. 82, 86, 352 P.2d 781, 783 (1960) (noting
that "hearsay, admitted without objection, is to be considered along with other evidence
in determining whether there is substantial evidence to sustain a verdict on appeal").
Outside this limited context, and for non-hearsay such as Kelly's testimony, we follow the
rule that
[w]e do not . . . substitute our judgment for that of the factfinder
concerning the credibility of witnesses or the weight to be given their
testimony. Testimony by a witness whom the factfinder has believed may
be rejected by an appellate court only if there is a physical impossibility
that the statements are true or the falsity of the statement is apparent
without resort to inferences or deductions.
Sanders, 117 N.M. at 457, 872 P.2d at 875 (citation omitted).
{12} In addition to Kelly's testimony, Officer Wilder testified that the bud is the part of
the marijuana plant containing the highest concentration of tetrahydrocannabinols. We
also note that the Legislature has designated marijuana as a Schedule I controlled
substance under NMSA 1978, § 30-31-6(C)(10) (1978), together with LSD, heroin, and
numerous other drugs. Moreover, the Legislature has increased the penalties available
for distributing controlled substances, specifically including marijuana, to minors as
opposed to adults, NMSA 1978, § 30-31-21 (1987), and has increased penalties for
distributing controlled substances in the vicinity of minors by creating drug-free school
zones, NMSA 1978, § 30-31-22(C) (1990). From these statutes, the Legislature has
indicated its determination that marijuana is a dangerous substance, particularly for
minors. It is also common knowledge that the same amount of an intoxicant can have a
more profound impact on infants and toddlers than on adults or even older children. The
Court of Appeals, as an example of the inadequacy of the record in the present case, cited
to a case in which an expert testified about the extremely large quantity of marijuana
necessary for a lethal dose. Graham, 2003-NMCA-127, ¶ 24. However, Section 30-6-1(D)(1) proscribes conduct that may endanger the health, as well as the life, of a child. It
was thus unnecessary for the State to show that the amount of marijuana accessible to the
children could have been fatal. Given the illegality of the substance and the Legislature's
determination that the substance is particularly dangerous to minors, we believe it was
within the jurors' experience to decide whether the amount of accessible marijuana
endangered the health of a three-year-old child and a one-year-old child.
{13} Contrary to the applicable standard of review, it appears that the Court of Appeals
parsed the testimony and viewed the verdict only in light of the probative value of
individual pieces of evidence. The Court of Appeals stated that "Kelly's testimony takes
on significance far beyond what it should," Graham, 2003-NMCA-127, ¶ 26, that "[t]he
rational persuasive power of . . . Kelly's testimony is minimal," id. ¶ 21, that "[w]e do not
know if the children had access to the marijuana or their proximity to the drugs or drug
users," id. ¶ 25, and that "[w]e do not know where the children were in relation to the
others in the house, or whether the `roach' that was found resulted from this or earlier
smoking." Id. This divide-and-conquer approach is not contemplated in appellate review
for sufficiency of the evidence. Cf. United States v. Arvizu, 534 U.S. 266, 274 (2002)
(noting that a totality of the circumstances review for reasonable suspicion supporting an
investigative stop is inconsistent with a "divide-and-conquer analysis" that looks at
individual facts in isolation). We view the evidence as a whole and indulge all reasonable
inferences in favor of the jury's verdict. "An appellate court does not evaluate the
evidence to determine whether some hypothesis could be designed which is consistent
with a finding of innocence." Sutphin, 107 N.M. at 130-31, 753 P.2d at 1318-19.
Appellate courts "faced with a record of historical facts that supports conflicting
inferences must presume–even if it does not affirmatively appear in the record–that the
trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that
resolution." Jackson, 443 U.S. at 326. We do not search for inferences supporting a
contrary verdict or re-weigh the evidence because this type of analysis would substitute
an appellate court's judgment for that of the jury.
{14} From the evidence in the record, a rational jury could draw reasonable inferences
that the marijuana was accessible to the children, that there was a reasonable possibility
that the children would come in contact with the marijuana, and that there was a
reasonable possibility of danger to the very young children from ingesting the marijuana.
In conjunction with this evidence, the jury heard testimony that Defendant trafficked in
crack cocaine in close proximity to the children and that Defendant kept a substantial
quantity of crack cocaine and marijuana in various places around the house. Defendant
also admitted to being responsible for leaving the marijuana in places that the jury could
infer were easily accessible to the children. Viewing all of the evidence in the record in a
light most favorable to the verdict, we determine that a rational jury could find each
element of child abuse, including a reasonable possibility of danger to the health of the
children, beyond a reasonable doubt.
IV. Conclusion
{15} We conclude that Defendant's conviction of child abuse is supported by sufficient
evidence in the record. We reverse the Court of Appeals and affirm the conviction.
{16} IT IS SO ORDERED.
______________________________
PATRICIO M. SERNA, Justice
WE CONCUR:
___________________________________
PETRA JIMENEZ MAES, Justice
___________________________________
EDWARD L. CHÁVEZ, Justice (specially concurring)
RICHARD C. BOSSON, Chief Justice (dissenting)
PAMELA B. MINZNER, Justice (dissenting)
CHÁVEZ, Justice (specially concurring).
{17} I concur with the opinion authored by Justice Serna. I write separately to address
some of the concerns raised in the dissenting opinion.
{18} In order to prove the offense of child abuse under Section 30-6-1(C)(1), the State
must prove beyond a reasonable doubt that Defendant knowingly, intentionally or
negligently, and without justifiable cause, permitted a child to be placed in a situation that
may endanger the child's life or health. NMSA 1978, § 30-6-1(D) (2001). In child abuse
cases, we have held that the Legislature intended the phrase "may endanger" to constitute
"a reasonable probability or possibility" that the child will be endangered. State v.
Ungarten, 115 N.M. 607, 609, 856 P.2d 569, 571 (Ct. App. 1993). In this case the jury
was instructed that the State had the burden of proving beyond a reasonable doubt that
Defendant caused a child or children to be placed in a situation which endangered their
life or health. UJI 14-604 NMRA 2005.
{19} In my opinion, although this is a close case, the evidence was sufficient to support
the conviction. I do not agree with the dissent that by sustaining this conviction we make
bad parenting a crime. This is not simply a case of bad parenting or a "mistake" as
characterized by the dissent. In this case two children, ages one and three, were running
around the house while adults smoked marijuana rolled in cigar paper. A marijuana
cigarette bud was left on the floor where the children were playing. An open bag with
marijuana residue was left sitting on a table. Marijuana seeds and stems were left on a
dresser in the room where the baby crib was located. In the baby crib was a marijuana
bud, which, according to expert testimony, is the most potent part of the marijuana plant.
The case would have been much stronger had a witness testified that the children were
chewing the marijuana left within their reach and had a toxicologist testified regarding the
toxicity of marijuana. However, in this case the law does not require such direct
evidence. See State v. McGruder, 1997-NMSC-023, 123 N.M. 302, 940 P.2d 150. Given
the jury's reasonable inference in this case that the marijuana bud , a particularly potent
and illegal substance, could harm a child if ingested, I believe the evidence of marijuana
left in the baby's crib and the areas where the children were playing is sufficient to
support a finding of a reasonable probability or possibility that the children would be
endangered.
{20} I am also not persuaded by the concern expressed in the dissent that the Court's
holding criminalizes leaving household products accessible to children. Each of the
products to which the dissent refers is legal. I do not read Justice Serna's opinion as
prohibiting legitimate acts. Additionally, toxic household products have child resistant
caps. The Defendant in this case left the marijuana accessible to children without taking
any steps whatsoever to eliminate or minimize the risk that the children would ingest the
marijuana. A reasonable fact finder could find that such an act constitutes child abuse as
defined by the Legislature.
{21} Finally, the dissent relies on State v. Trujillo as support for the proposition that a
child must be directly in harm's way to support a conviction of child abuse. Much like
the dissent in this case, Trujillo seems to require proof of actual injury beyond all doubt.
In Trujillo the Court of Appeals reversed a jury finding of child abuse, holding there was
insufficient evidence that a child who witnessed the beating of her mother faced a
"substantial risk" to her emotional or physical health. 2002-NMCA-100, ¶¶ 20-21, 132
N.M. 649, 53 P.3d 909. In that case, the drunken father came home late one night, and,
as the children slept, he began to beat his wife. The beating was loud enough to awaken
the couple's eight-year-old child, who went to the room to see what was happening. The
child testified that she saw her dad beating her mother as the mother asked him to stop.
When the child appeared at the door the father stopped beating the child's mother and said
to the child, "Get your little f—ing ass back to bed because I don't want to have you see
me kill your mother." Id. ¶ 5. The Court of Appeals held there was insufficient evidence
for a jury to find a "reasonable probability or possibility" that the daughter's emotional
health was endangered, id. ¶ 20, despite testimony from the child and the mother that the
child was scared and saddened by what she witnessed, and that for some time the child
lived in fear that she would be "taken away," or that her father would injure her or kill her
mother, to the extent that she missed many days of school. Id. ¶¶ 11-12. The dissent in
this case underscores the lack of evidence of direct, physical harm to the child in Trujillo,
emphasizing that "the father ordered his child to leave the room just so she would not be
in the direct line of his anger." ¶ 31. In my opinion, requiring this type of evidence to
sustain a jury finding of child abuse goes well beyond requiring the prosecution to prove
each element of a crime beyond a reasonable doubt.
{22} Justice is a community project in which individuals participate directly when
serving on a jury. While it is certainly appropriate in some cases to reverse a jury
conviction based on insufficient evidence, this is not the case. The jury was instructed in
such a way that what may be a vague and overbroad statute–requiring only a showing that
a child was negligently placed in a situation that may have endangered the child–in fact
required a showing that the child was placed in a situation which endangered the child's
life. For the reasons previously stated, I believe a reasonable jury could find the
defendant guilty based on the direct and circumstantial evidence presented to the jury and
the reasonable inferences that could be drawn from such evidence.
{23} If our interpretation of legislative intent is incorrect as it relates to child abuse, let
us err on the side of the safety of children. If the Legislature did not intend for the child
abuse definition to reach the circumstance in which illegal drugs are placed within reach
of children, the Legislature should revise the definition and tighten up what may be a
vague and overbroad statute.
{24} For the foregoing reasons, I concur in affirming Defendant's conviction for child
abuse.
____________________________________
EDWARD L. CHÁVEZ, Justice
BOSSON, Chief Justice (dissenting).
{25} I do not believe the State provided sufficient evidence at trial that the children were
actually in danger of ingesting marijuana, and therefore I respectfully dissent. To establish
a claim of child abuse, the State must demonstrate that the defendant caused the children "to
be placed in a situation which endangered [their] life or health." UJI 14-604 NMRA 2005.
The State must first show that marijuana is a potentially dangerous substance, and then that
the children were actually in danger from it.
{26} Because most of the trial focused on the other charges arising from Defendant's drug
dealing, the one count dealing with child abuse received little attention at trial from either
side. The State presented only one theory for the charge in its opening statement: that
Defendant committed child abuse by leaving the marijuana in areas accessible to children.
State v. Graham, 2003-NMCA-127, ¶ 19, 134 N.M. 613, 81 P.3d 556. But it has never been
a crime, before now, to leave a potentially toxic chemical in an area where there is only a
mere possibility, however remote, that a child might come in contact with it. This cannot be
what the legislature had in mind when it made criminal child abuse a third degree felony.
Otherwise, we risk criminalizing huge territories of benign, though perhaps careless, conduct
which up to now has been the province of the abuse and neglect statutes or the law of civil
negligence. See NMSA 1978, § 30-6-1 (2004). We risk making a criminal act out of merely
being a bad parent.
{27} I agree with our Court of Appeals that the State presented an anemic case in support
of the child abuse charge. Despite the testimony of a police officer formally trained in the
identification and handling of marijuana, and a forensic chemist from the state crime lab, the
State failed to elicit any expert testimony describing the toxicity of the two small pieces of
marijuana or directly linking such a small amount to its potential effects upon small children.
Presumably, the State could have done so without undue inconvenience, and the jury would
have had the kind of evidence it deserved to make an informed decision.
{28} However, this satisfies only half the State's burden. Beyond proving the degree of
risk to the child's health from marijuana generally, the State had to prove proximity: that a
child was actually placed in a direct, physical line to that danger.
The danger to this
particular child must be more than merely theoretical. Although the law does not require that
a child suffer actual injury, it does require that the hazard be greater than a "mere possibility."
State v. Ungarten, 115 N.M. 607, 856 P.2d 569 (Ct. App. 1993). The risk of harm has to be
substantial; the legislature did not intend to criminalize every harm that might possibly come
a child's way. State v. Massengill, 2003-NMCA-024, ¶¶ 43-47, 133 N.M. 263, 62 P.3d 354.
Our courts have previously lent such a reasonable interpretation to the child abuse statute,
and I believe we should do so here. "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." State v. Trujillo, 2002-NMCA-100, ¶ 21, 132 N.M. 649, 53
P.3d 909.
{29} With this caution in mind, I would point out what is self-evident about modern
households. They contain a wide assortment of commonly used agents, potentially toxic to
children, such as detergents, paint products, cleansers and bleaches, insecticides, herbicides,
and even alcoholic beverages and cigarettes. Most of the time, these toxic agents are not
under lock and key. Sensibly, as a society we place a considerable degree of trust and
discretion in parents; we trust them to undertake reasonable precautions to keep these toxic
agents away from children. We do not make a criminal act out of merely making a mistake;
after all, none of us is a perfect parent.
{30} In interpreting the child abuse statute, our courts have recognized the distinction
between imminent danger and danger which is more remote. For example, we have upheld
child abuse convictions when the violent behavior of adults places children physically
proximate to that violence and directly in harm's way. See State v. McGruder, 1997-NMSC-023, ¶ 38, 123 N.M. 302, 940 P.2d 150 (upholding child abuse conviction despite the lack
of any physical harm when defendant aimed a gun at a woman and threatened to kill her
while her daughter was standing behind her); Ungarten, 115 N.M. at 609-10, 856 P.2d at
571-72 (upholding child abuse conviction when defendant's knife thrusts at a child's parent
came close to the child). In these cases, the evidence demonstrated that children were
physically close to an inherently dangerous situation.
{31} On the other hand, our courts have reversed child abuse convictions when a child may
be in the general area of a potentially dangerous situation, but the child is not placed directly
in harm's way. For example, in State v. Roybal, 115 N.M. 27, 29, 846 P.2d 333, 335 (Ct.
App. 1992), a father sold illegal drugs, itself a dangerous proposition, while his daughter
waited in the car about ten to fifteen feet away. On appeal from a conviction for child abuse,
the court reversed, finding insufficient evidence that the child's mere presence in the car put
her sufficiently at risk to constitute criminal child abuse. Id. at 34, 846 P.2d at 340.
Similarly, in Trujillo, 2002-NMCA-100, ¶ 7, a father was convicted of child abuse after his
daughter witnessed the father's attack upon her mother from the bedroom doorway out of the
direct line of danger. Oddly, the father ordered his child to leave the room just so she would
not be in the direct line of his anger. Id. ¶ 5. Again, the court reversed, finding that any risk
of danger was physically remote. Id. ¶ 19.
{32} Defendant's case is similar to both Trujillo and Roybal. Even though Defendant
introduced a potentially dangerous, illegal substance into the house, Defendant has already
been convicted of possession and trafficking. With respect to the separate offense of child
abuse, the State failed to demonstrate that either child was ever close enough to the
marijuana to be seriously at risk.
At trial, the State presented no evidence that these children
were ever in the crib with the marijuana bud or even in the same bedroom. In fact, there was
very little evidence linking either piece of marijuana to the physical location of the children.
The only indication from the record regarding the children's whereabouts is that they were
running around the house, not in the bedroom with the crib, at approximately 5:30 p.m.,
shortly before Defendant's arrest. When the house was secured and officers awaited a search
warrant, the children were most likely outside the house with their mother. For all we know,
Defendant placed the marijuana bud in the crib earlier in the day, and we have no idea if the
children were ever actually in the crib at the same time as the contraband.
{33} Importantly, there was no evidence that the children were ever left unsupervised by
their mother. In fact, to make one of these children physically proximate to the marijuana
in the crib, an adult would have to pick up the child, place the child in the crib, and then
leave the child unsupervised in the crib with the marijuana bud. But the mother, not
Defendant, was the parent in the house with her children, and there is no evidence that she
would likely have been so careless. This does not absolve Defendant of blame or otherwise
excuse his reprehensible behavior toward these children. But it does absolve Defendant of
guilt under this particular child abuse statute, because the evidence does not prove the
elements of the crime established by our legislature.
{34} More significantly, I fear the implications of this opinion with respect to what the
legislature has defined as criminal child abuse. If we are going to convict based on nothing
more than speculation as to what might have happened if certain events had occurred in the
future, then there are almost no limits to what a jury might conclude is child abuse. But
juries do not define crimes; the legislature does. And our legislature required evidence of
"endangerment," which, under our existing case law, means something more than "what
might have been."
{35} Under its broad reading of the statute, the majority is effectively allowing the jury to
usurp the role of the legislature in determining what constitutes child abuse. I cannot agree
to such a standard-less, open-ended reading, especially of a criminal statute. I especially fear
the due process implications to which we give rise with such an unprecedented reading of
our child abuse law. Accordingly, with respect, I am compelled to dissent.
________________________________
RICHARD C. BOSSON, Chief Justice
I CONCUR.
________________________________
PAMELA B. MINZNER, Justice
Topic Index for State v. Graham, No. 28,286
AE Appeal and Error
AE-SR Standard of Review
AE-SB Substantial or Sufficient Evidence
CL Criminal Law
CL-CN Child Abuse or Neglect
CA Criminal Procedure
CA-SE Substantial or Sufficient Evidence
