OPINION
{1} This case presents another twist on the question of when a defendant can be successfully prosecuted for both driving while intoxicated (DWI) and child abuse by endangerment. A jury found Defendant guilty of DWI by actual physical control and child abuse by endangerment. Defendant does not challenge his DWI conviction. Instead, he raises one issue on appeal, contending that the district court erred in denying his motion for directed verdict because there was insufficient evidence to support a conviction for child abuse when that conviction was based upon a DWI that had not yet occurred. We agree with Defendant and reverse his child abuse by endangerment conviction.
BACKGROUND
{2} Defendant was charged with DWI, contrary to NMSA 1978, Section 66-8-102 (2008) (amended 2010), and child abuse by endangerment, contrary to NMSA 1978, Section 30-6-l(D)(l) (2009), in relation to an incident that occurred in January 2010. The State called two witnesses at trial. Officers Eric Jennings and Joseph Schake testified that they were on duty conducting a “warrant round-up” at a trailer park in Farmington, New Mexico, when they saw Defendant’s pickup truck parked outside of a residence. Believing that Defendant may have been the individual they were pursuing, the officers approached the truck and made contact with Defendant, who was seated in the vehicle. The officers testified that they observed Defendant seated in the driver’s seat of the truck, with his wife in the middle, and his four-year-old child on the other end of the truck’s front bench seat. The vehicle was not running, and Defendant was holding the keys in his hand. In the process of confirming that Defendant was not the subject of the warrant, the officers observed that there were open alcohol containers in the cup holders and on the floor of the vehicle. They testified that Defendant had bloodshot and watery eyes, spoke with slurred speech, and smelled of alcoholic beverages. Officer Jennings testified that Defendant informed him that he, his wife, and his child had just stepped out of the house and that they were “loading up” the vehicle and “leaving here” to go to a local store.
{3} Based on his observations, Officer Jennings began a DWI investigation. He administered field sobriety tests to Defendant and observed that Defendant was unable to keep his balance and could not perform the tests as instructed. Based on Defendant’s statements and the officers’ observations, Defendant was placed under arrest for suspicion of DWI. Defendant was transported to the police station where he provided two breath samples, both of which resulted in alcohol concentration readings of .15 grams per 210 liters of breath.
{4} The State rested after the two officers testified, and Defendant then moved for a directed verdict on the child abuse charge. Defendant argued that no evidence had been presented to support a child abuse conviction — the child had merely been sitting inside a nonmoving vehicle. The district court denied the motion, and Defendant was convicted on both the DWI and child abuse by endangerment charges. This appeal followed.
DISCUSSION
Standard of Review
{5} Defendant challenges his conviction for child abuse by endangerment, arguing that the misdemeanor DWI charge in this case does not support the conviction for felony child abuse. He does not challenge his DWI conviction, and it is thus not a part of this appeal. The parties agree that the question of whether the underlying DWI misdemeanor supports a finding of felony child abuse goes to the sufficiency of the evidence.
{6} We begin our sufficiency of the evidence analysis by first reviewing the elements required to prove child abuse by endangerment. To convict Defendant of child abuse by endangerment, the State had the burden of proving beyond a reasonable doubt that Defendant caused a child to be placed in a situation that endangered his life or health and did so with reckless disregard for the safety of the child. See § 30-6-l(A)(3), (D)(1). Reckless disregard requires that Defendant “knew or should have known [his] conduct created a substantial and foreseeable risk, [he] disregarded that risk and [he] was wholly indifferent to the consequences of the conduct and to the welfare and safety of [the child].” UJI 14-604 NMRA. We have said that 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,
{7} Having set forth the statutory requirements of child abuse by endangerment, we apply a substantial evidence standard to determine the sufficiency of the evidence at trial. State v. Treadway,
There Was Insufficient Evidence to Support a Conviction for Felony Child Abuse by Endangerment
{8} To date, every appellate case inNew Mexico upholding a child endangerment conviction has involved a situation where a defendant was actually driving while intoxicated with a child in the vehicle. See, e.g., State v. Santillanes,
{9} Difficulties arise, however, when an intoxicated defendant is not driving but rather is in a nonmoving vehicle with a child present. Our Supreme Court recognized in Chavez that, “[tjaken 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.’”
{10} In State v. Cotton, we reversed the defendant’s conviction for child abuse by endangerment when the defendant was intoxicated while seated in the driver’s seat of his vehicle with his girlfriend and four children.
{11} Cotton was not yet decided when the parties filed their briefs in this case and, as a result, they could not have foreseen its applicability here. Nevertheless, the analysis and holding in that case are relevant to our decision today. As in Cotton, the evidence in this case for the child abuse by endangerment charge was the same evidence presented in relation to the DWI charge. We briefly review the facts at the point in time when Defendant was intercepted by the police. Defendant was sitting outside a residence in the driver’s seat of a pickup truck, a female was in the middle seat, and a child was on the other end of the front bench seat; Defendant appeared to be impaired; the keys were in his hand; he told the officers he was planning on going to a local store; he was arrested; and he never drove the truck. This conduct supported Defendant’s conviction of DWI by actual physical control (and he does not challenge that conviction). However, we conclude that it does not rise to the level required by our child abuse statute. Clearly, had Defendant carried out his intentions and begun to drive with his child in the car, or had there been evidence that Defendant was driving while intoxicated prior to his contact with the police, he could have been convicted of child abuse by endangerment. But without evidence of actual driving, Defendant had not yet put the child in real peril.
{12} Although the defendant in Cotton was not charged with DWI by actual physical control, we find no reason to depart from the rationale in that case merely because Defendant here admitted that he intended to drive and was ultimately convicted of DWI by actual physical control. DWI by actual physical control by its very nature relies on the possibility of future conduct, and its departure from the typical requirement of criminal actus reus is unique. In State v. Sims, our Supreme Court modified existing DWI by actual physical control law, requiring two elements to secure a conviction: “(1) the defendant was actually, not just potentially, exercising control over the vehicle, and (2) the defendant had the general intent to drive so as to pose a real danger to himself, herself, or the public.”
{13} If interpreted in an overly-broad manner, our Supreme Court’s analysis for DWI by actual physical control set forth in Sims may cause unintended consequences if extended to the child abuse context. Allowing actual physical control without requiring the act of driving to operate as a basis for a child abuse by endangerment charge effectively turns the child abuse charge into an attempted crime as well. In other words, Defendant here was convicted of committing an overt act in furtherance of and with the intent to commit child abuse, but at the point when Defendant was intercepted by the officers, the crime of child abuse had not yet been completed. Allowing a conviction for child abuse to stand on these facts would create liability for an inchoate crime where none was charged or otherwise shown to have been intended by the Legislature.
{14} In State v. Roybal, we determined that mere proximity to a dangerous situation was insufficient to support a conviction for child abuse by endangerment.
CONCLUSION
{15} For the foregoing reasons, Defendant’s child abuse conviction is reversed.
{16} IT IS SO ORDERED.
WE CONCUR: