STATE of New Mexico, Plaintiff-Appellee,
v.
Alicia Victoria GONZALES, Defendant-Appellant.
Court of Appeals of New Mexico.
*273 Gary K. King, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, NM, for Appellee.
Jane B. Yohalem, Santa Fe, NM, for Appellant.
OPINION
KENNEDY, Judge.
{1} This case raises an issue of first impression as to whether a case that might otherwise be regarded as vehicular manslaughter is punishable under our child abuse statute simply because the person killed or injured by Defendant's criminal negligence was a child. Here, we distinguish between criminal negligence that endangers the public at large and results in injury or death to a member of the public, who happens to be a child, and criminally negligent conduct that creates a discernable risk of danger to a particular child or particular children. We hold that a discernable risk of danger to a particular child or particular children is required to support a conviction for negligent child abuse by endangerment under NMSA 1978, Section 30-6-1(D)(1) (2004) (amended 2009). We further hold that for a defendant to be criminally liable for child abuse by endangerment, he or she must be aware of a particular danger to the identifiable child or children when engaging in the conduct that creates the risk of harm.
{2} In this case, Defendant contends that the district court erred in failing to grant her motion for dismissal and her motion for directed verdict on the child abuse by endangerment charges on the basis that she was unaware that her conduct posed a particular and foreseeable risk of likely injury to the children injured by her actions. The district court similarly denied Defendant's proposed jury instructions requiring child abuse by endangerment to include an element of awareness. We conclude that the district court erred. Accordingly, we reverse Defendant's convictions for negligent child abuse by endangerment, as she was not proven to *274 be aware of the danger to the particular children who were the victims of her drunk driving.
{3} Defendant argues that the State is barred from retrying her for vehicular homicide and intentional child abuse. We agree and hold that double jeopardy bars retrial of Defendant for vehicular homicide. We remand for vacation of the child abuse convictions and discharge of Defendant and the amendment of the judgment and sentence to reflect those charges on which Defendant's convictions remain unaffected by this Opinion.
I. BACKGROUND
{4} Defendant drove on the interstate while severely drunk, sideswiped one car, and ploughed into the rear of another car, in which two minors, Manuel and Deandre, were riding in the back seat. Manuel was pronounced dead at the scene; Deandre received minor injuries. As a result, the grand jury indicted Defendant for two counts of negligent child abuse by endangerment, including one count of endangerment resulting in death.[1] Defendant was also charged and convicted of aggravated driving while intoxicated and leaving the scene of an accident. Defendant does not contest those convictions, and they are not a part of this appeal.
{5} Prior to trial, Defendant filed a motion to dismiss the charges of child abuse, arguing that child abuse cannot be charged when the children injured were "not in the vehicle of the accused and the accused [was] not aware of their presence on the roadway." (Emphasis omitted.) Defendant argued that the State sought to criminalize as child abuse any negligent behavior undertaken on the road when a child might be present in another car without consideration of whether Defendant's conduct specifically put a child at risk. The State did not disagree with this characterization, stating that any conduct undertaken in reckless disregard of the "welfare and safety of everyone on the road" was sufficient to prove child abuse. The State stated:
Criminal negligence does not require a showing that [D]efendant had specific knowledge of her victims. It only requires a reckless disregard of the danger that she is putting her potential victims in. . . . It was foreseeable that her conduct could endanger the lives of not only adults, but also children. Children are a part of the general public, a more vulnerable part.
{6} During the hearing on the motion to dismiss, the district court inquired of the State why child abuse had not been charged in the alternative with vehicular homicide. Counsel for the State initially did not know, but later stated that its decision to charge Defendant only with child abuse and not vehicular homicide was intentionally undertaken as an exercise of its discretion. The State thus did not pursue vehicular homicide charges at any time.
{7} Following extensive argument by the parties, the district court held as a matter of law that "the current statute as it stands under child abuse does not necessitate or need an awareness factor . . . all that's required as far as knowledge is that the defendant knows or should have known that the defendant's conduct created the substantial or foreseeable risk." The district court further stated its opinion that a "person [can] cause [a child to be placed] or place a child. . . in a dangerous situation, life or health,. . . and not be aware of it." The district court denied Defendant's motion, and the case proceeded to trial, resulting in Defendant's convictions and her appeal. The issue continued to be raised by Defendant throughout the trial, including a motion for directed verdict, with identical results.
II. STANDARD OF REVIEW
{8} We review the interpretation of a statute in the context of a motion to dismiss de novo with the primary goal of ascertaining and giving effect to the intent of the Legislature. State v. Smith,
{9} Double jeopardy arguments cannot be waived. A defendant may raise such arguments at any time. NMSA 1978, § 30-1-10 (1963); see State v. Jimenez,
III. DISCUSSION
A. The Current Landscape of Child Abuse By Endangerment
{10} Until now, every child abuse by endangerment case in New Mexico pertaining to a defendant's operation of a motor vehicle while intoxicated involved the defendant's knowledge or placement of the children in the vehicle prior to the conduct that constituted the endangerment. See, e.g., State v. Chavez,
{11} Similarly, in State v. Lujan, the defendant was convicted of child abuse when he attacked another car with his own vehicle with prior knowledge that the victim's car was transporting a child.
{12} We have further interpreted Section 30-6-1(D) "to address situations where an accused's conduct exposes a child to a significant risk of harm," irrespective of whether the child was actually injured. Chavez,
B. Criminal Negligence
{13} According to our rules of statutory construction, the statute's plain language "is the primary indicator of legislative intent." High Ridge Hinkle Joint Venture v. City of Albuquerque,
*276 {14} Section 30-6-1(D)(1) criminalizes abuse of a child by endangerment,[2] stating, "[a]buse of a child consists of a person knowingly, intentionally or 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[.]" At issue is whether this statute can be construed to apply in situations where a defendant neither knows of the presence of the child endangered by his or her driving, nor specifically endangers that child any more than his or her actions may endanger the general public. Thus, we must determine the Legislature's intent when it required a defendant to, at minimum, "negligently" cause or permit the child to be placed in a situation that endangered the child's life.
{15} In Santillanes v. State, our Supreme Court held that in convicting a defendant of criminally negligent child abuse, the state must prove negligence to a criminal, rather than civil, standard.
{16} We have held that the child abuse by endangerment statute was "intended to address conduct with potentially serious consequences to the life or health of a child." State v. Trujillo,
{17} Our Supreme Court in Chavez provided factors to consider in determining whether there was a substantial and foreseeable risk of harm to the child, so as to authorize a charge of criminal child abuse by endangerment. Under Chavez, a court should consider (1) the gravity of the risk created by the defendant, (2) whether the underlying conduct violates a statute, and (3) the likelihood of harm to the child.
{18} Concerned with the breadth of conduct potentially ensnared by the phrase "may endanger," our Supreme Court in Chavez limited criminal liability under Section 30-6-1(D)(1) by excluding liability for risks posed by conduct directed at a child that only theoretically endangered the life or health of a child. Chavez,
{19} For instance, in State v. Clemonts, we reversed the defendant's conviction, holding that the defendant's speeding and minor traffic violations committed during a slow speed police chase did not pose a substantial risk to the children in the car because the risk of harm was too remote.
{20} From this discussion, we reach two conclusions. First, endangerment is something that exists as an antecedent to any harm that might befall a child. We reach this conclusion by observing that all of these cases describe endangerment rooted in criminal negligence as arising from a danger to the child that is known or capable of being known. The defendant must have knowledge of potential and likely consequences of the endangering behavior that results in a palpable and foreseeable danger to a child. This is more than merely a "possibility, however remote, that harm may result to a child." Trossman,
{21} Second, and contrary to the State's contention at trial, the defendant's conduct must create a substantial and foreseeable risk of harm to an identified or identifiable child within the zone of danger. The risk cannot be merely hypothetical, as the child must be physically close to an inherently dangerous situation of the defendant's creation. The extension of the risk to encompass any unidentified child who might hypothetically be present within the general population that is endangered by a drunk driver's conduct is too broad an application of this statute. The child victim cannot become identified simply by being injured by Defendant: identification of the child and the risk to that child must precede the injury. We now discuss the particularity with which the conduct must be directed at a child victim to constitute child endangerment.
C. Criminal Negligence Must be Directed Toward a Child
{22} In addition to the requirement that the defendant create a substantial and foreseeable risk of harmplacing a child in the zone of dangerthe defendant must also direct his or her criminal negligence toward a child specifically and not solely at the general public. The State argues that it can meet its burden to prove child abuse by endangerment, simply by showing that Defendant put children at risk when she put the public as a whole at risk in driving drunk.
{23} We agree that the Legislature intended to protect children through this statute because of their vulnerability. Our Supreme Court has been quite clear to point out that the child abuse statute is "designed to give greater protection to children than adults because children are more vulnerable than adults and are under the care and responsibility of adults. When an adult, without justification, endangers a child's safety, the adult is more culpable than when the safety of another adult is jeopardized." Santillanes,
{24} However, precedent indicates that to be convicted of child endangerment, the defendant must act in such a way so as to specifically endanger the child. The defendant must do more than act in a way that endangers the public as a whole. In Chavez, our Supreme Court required that the risk created by the defendant create conditions that "present truly consequential and foreseeable threat of harm to children."
{25} In this case, Defendant may have acted with criminal negligence in driving drunk, but she did not act with reckless disregard in relation to the safety or health of the children specifically. The "should have known standard" of criminal negligence is consistent with the requirement that the defendant has "disregarded [the] risk and [has been] wholly indifferent to the consequences." Schoonmaker,
{26} The fact that the behavior creating a risk results in the injury of a child is not dispositive to the analysis. As our Supreme Court observed in Schoonmaker, it is almost impossible to be indifferent to or disregard a risk of which one is not aware.
{27} In this case, the facts establish the accidental nature of the harm to the children. Defendant's reckless behavior endangered all persons on the road, but nothing about the situation gives rise to evidence that the children were subjected to any particular danger not shared by all fellow motorists and their passengers. Defendant did not specifically act in a criminally negligent manner with regard to endangering these particular children. Rather, she acted that way toward people of all ages on the road that night.
{28} The State acknowledges the nature of endangerment as proceeding the harm when it points out that Defendant did not know if she would crash into another vehicle, injure another person, or cause no injury at all. The State stated, "Defendant did not know what penalty she was facing until the results were seen." This is an incorrect standard to apply. Under the State's logic, the occurrence of child abuse depends completely upon the incidental age of the injured party and not upon any culpable state of mind of the defendant. Such logic imposes criminal liability irrespective of how remote the risk of injury is to a child. To adopt this view does not allow consideration of whether Defendant can assess the potential occurrence of "a substantial and foreseeable risk" of harm to the children. Chavez,
{29} More specifically, to operate under the State's view offends the requirement that a defendant be cognizant that his or her behavior creates a specific danger to a particular child. This approach creates a strict liability crime based on the victim's age and the resultant injury, not the defendant's culpability in creating antecedent and child-directed danger. Such an application of the statute is improper. Conviction of a defendant for negligent child abuse by endangerment requires a demonstration of some risk to a child specifically, as opposed to a general risk to the public with an accidental harm resulting to a child.
{30} "Typically, criminal liability is premised upon a defendant's culpable conduct, the actus reus, coupled with a defendant's culpable mental state, the mens rea." State v. Padilla,
{31} Where the risk of an injury is apparent or of a great magnitude, the statute requires that we ask to what extent the circumstances are a particular risk to children. Consequently, we hold that for a person to be guilty of child abuse by endangerment, it must be shown that he or she engaged in conduct that directs the risk at a child in a manner that is foreseeable and is likely to produce endangerment to the particular child. We interpret the plain meaning of "negligence" in Section 30-6-1(D)(1) to require the State to prove that Defendant knew, or should have known, of the foreseeable risk created by her behavior that threatens a child's life or health. Because a drunk driver creates the possibility of a risk to all persons on the road, it is insufficient for the State to prove a substantial and foreseeable risk by simply establishing that the possibility exists that a hypothetical child will be injured thereby, or that a child was actually injured as a result of the defendant's acts, even though that child was not known to be endangered at the time. The risk of harm to the child must be perceived separately from a risk to the public as a whole, so that the defendant actively disregarded the likelihood of injury to a child.
{32} The State failed to prove that Defendant's behavior endangered a particular child that was foreseeable at the time of the accident. As a result, Defendant's conviction must be reversed. In addition, the jury hung and did not return a verdict on the intentional child abuse charges. Based on the facts of this case and this Court's reversal of the conviction for the lesser-included offenses of negligent child abuse, the evidence is also insufficient to convict Defendant on the more severe charge of intentional child abuse. Intentional child abuse also requires that the facts demonstrate that Defendant endangered a particular child that was foreseeable at the time of the accident. Absent such facts, as conceded by the State in this case, the charge of intentional child abuse by endangerment must also be dismissed as insufficient as a matter of law. State v. Reed,
D. Double Jeopardy
{33} As a final matter, Defendant argues that if this Court reverses her conviction, the doctrine of double jeopardy prohibits the State from prosecuting her for vehicular homicide. As double jeopardy applies where Defendant challenges her convictions for sufficiency of the evidence and she has successfully done so with regard to negligent child abuse here, we now review Defendant's double jeopardy contentions. See State v. Lynch,
{34} The Double Jeopardy Clause represents three broad guarantees. First, when a defendant has been acquitted of an offense, the clause guarantees freedom from subsequent prosecution for the same offense. Second, the double jeopardy clause guarantees freedom from prosecution for the same offense after conviction. Third, it guarantees a defendant will not be punished twice for the same offense. Id. ¶ 9; see U.S. Const. amend. V ("No person shall be . . . subject for the same offense to be twice put in jeopardy of life or limb[.]"); N.M. Const. art. II, § 15 ("No person shall be . . . twice put in jeopardy for the same offense[.]"); § 30-1-10 ("No person shall be twice put in jeopardy for the same crime [and] he may *281 not again be tried for a crime or degree of the crime greater than the one of which he was originally convicted."). In Lynch, our Supreme Court held:
[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
{35} For double jeopardy purposes, a greater offense is considered the same offense as any lesser offenses included therein. See id. ¶ 1 (holding that double jeopardy barred the state from prosecuting a defendant for first-degree murder after his acquittal for second-degree murder for the same killing). "The Double Jeopardy Clause prohibits successive prosecutions for two offenses arising out of the same conduct if either one is a lesser-included offense within the other." State v. Meadors,
{36} Applying the cognate approach announced in Meadors, we hold that, under the unique facts of this case, any subsequent prosecution of Defendant for vehicular homicide would be prohibited as a lesser-included offense under double jeopardy.
{37} As stated above, during trial, the State presented evidence that Defendant drank to intoxication and drove her vehicle in such a manner that she negligently caused the death of one child and injured another. The crux of the parties' dispute at trial, and indeed this appeal, was whether such evidence was sufficient to convict Defendant of negligent child abuse, particularly in light of the fact that the State presented little evidence suggesting Defendant appreciated any risk that her actions posed any harm to a specific child victim. Had the jury been *282 instructed on vehicular homicide, it could have reasonably concluded that Defendant was guilty of that offense instead of negligent child abuse. Moreover, Defendant's awareness that her actions imperiled a specific child was sufficiently in dispute, so as to reasonably lead to acquittal on the negligent child abuse charge, had the jury received a vehicular homicide instruction.
{38} Accordingly, we hold that any subsequent prosecution for vehicular homicide in this case would violate double jeopardy. The State chose an "all or nothing" strategy that excluded vehicular homicide. See State v. Villa,
IV. CONCLUSION
{39} For Defendant to be convicted of child abuse, the State must show that she specifically directed her criminally negligent conduct toward children, particularly toward Manuel and Deandre, in such a way that is distinguishable from the danger she posed to the public at large. Furthermore, double jeopardy bars retrial of Defendant for vehicular homicide. Thus, we reverse and remand for vacation of the child abuse convictions, for amendment of the judgment and sentence to reflect those charges on which Defendant's convictions remain unaffected by this opinion, and for discharge of Defendant.
{40} IT IS SO ORDERED.
WE CONCUR: JAMES J. WECHSLER and TIMOTHY L. GARCIA, Judges.
NOTES
Notes
[1] Defendant was alternatively indicted for intentional and negligent child abuse in each count. She was convicted of negligent child abuse.
[2] The crime of negligent abuse of a child by endangerment under Section 30-6-1(D)(1) is predicated on the same elements regardless of the consequence to the child, which only influences the degree of punishment for the offense. Thus, we apply the same analysis to both counts of negligent child abuse of which Defendant stands convicted.