State v. Consaul, 332 P.3d 850

Background

Defendant Daniel Consaul cared for his ten-week-old nephew Jack the night Jack became critically ill and suffered a hypoxic ischemic brain injury and cerebral edema.
Daniel admitted in police interviews that he swaddled Jack more tightly than usual and placed him face-down on a pillow; he was the only caregiver present when Jack became ill.
UNMH physicians concluded Jack’s injuries were "non-accidental," with several doctors testifying that suffocation was a possible or likely mechanism; hospital staff notified CYFD and police.
Grand jury indicted Consaul on alternative theories: negligent (criminal negligence/"reckless") child abuse resulting in great bodily harm and, in the alternative, intentional child abuse resulting in death or great bodily harm; the indictment alleged swaddling/placing face down as the operative act.
At trial the State initially proceeded on the swaddling/face-down theory but, after medical testimony undermined that theory, advanced a suffocation (intentional) theory; the district court refused defense requests for separate jury instructions/verdict forms for negligent and intentional child abuse and gave a single, unified instruction.
New Mexico Supreme Court granted certiorari, held the court erred by refusing separate instructions, found the evidence insufficient on causation for the reckless/negligent theory and insufficient to prove intentional suffocation beyond a reasonable doubt, and reversed and dismissed the charges with prejudice.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether separate jury instructions/verdicts were required where State advanced inconsistent theories (reckless swaddling vs. intentional suffocation)	Single UJI adequately covered elements; same statutory penalty for great bodily harm theories so separate forms unnecessary	Jury must unanimously identify which culpable act caused harm when State advances inconsistent alternative acts	Reversed: under these facts, refusal to give separate instructions/verdicts was reversible error; jury must be asked to specify the act it finds proved
Proper mens rea label/standard for "negligently" in NMSA §30-6-1 (criminal negligence)	Statute and prior cases permit using language like "knew or should have known" alongside reckless language	Defendant argued criminal standard requires recklessness, not civil negligence	Court clarified "criminally negligent child abuse" should be labeled "reckless child abuse"; overruled prior language to the extent it treated negligence as less than recklessness
Sufficiency of evidence on causation for reckless (criminally negligent) child abuse based on swaddling/face-down placement	Swaddling and face-down placement caused oxygen deprivation and brain injury; medical testimony could support causation	Medical experts largely testified that mere swaddling/face-down placement would not produce Jack’s severe injuries; no nonmedical evidence supported causation	Insufficient: State’s own medical witnesses testified that swaddling/face-down placement would likely not cause the observed injury; causation not proved beyond a reasonable doubt
Sufficiency of evidence to prove intentional suffocation (actus reus / mens rea) when State shifted theory mid-trial	Medical experts’ differential etiology, combined with alleged change in story and defendant’s admitted frustration, supported a finding of intentional suffocation	No eyewitness, no confession, expert opinions were speculative or only probabilistic; tertiary hearsay (CART report) and frustration do not prove intentional act beyond reasonable doubt	Insufficient: medical differential etiology here was insufficient to prove intentional suffocation beyond a reasonable doubt; tertiary hearsay and evidence of frustration did not supply the missing proof; conviction reversed and charges dismissed

Key Cases Cited

Santillanes v. State, 115 N.M. 215, 849 P.2d 358 (N.M. 1993) (construed "negligently" in child abuse statute to require criminal negligence and applied lenity)
State v. Cabezuela, 150 N.M. 654, 265 P.3d 705 (N.M. 2011) (discussed need for separate instructions for negligent vs. intentional child abuse in death cases)
State v. Schoonmaker, 143 N.M. 373, 176 P.3d 1105 (N.M. 2008) (prior treatment of negligence/ recklessness standard in child abuse jury instruction; partially overruled here)
State v. Jojola, 138 N.M. 459, 122 P.3d 43 (N.M. Ct. App. 2005) (discussed sufficiency/double jeopardy principles on retrial after instructional error)
State v. Dowling, 150 N.M. 110, 257 P.3d 930 (N.M. 2011) (standard of review for sufficiency of the evidence; view evidence in light most favorable to verdict)