State v. Graham

factor, create a but because Plaintiff did not safety him to leave. concerns caused support material fact to his genuine a sufficient nexus issue of Plaintiff never established resignation. his discharge those concerns and constructive claim. between to considered CONCLUSION Other factors {19} resignation worker’s whether the determine law, a matter Plaintiff did not As voluntary compulsory. For or de facto genuine material to issue of fact create require that the em- example, some courts support discharge his constructive claim. notify problem, employer of the ployee Therefore, we affirm the employer opportu- a sufficient and afford summary judgment Appeals affirming for leaving. an nity to it before As ex- resolve Defendant. Worland, City ample, in Woodward v. IT ORDERED. IS SO (10th Cir.1992), the Tenth F.2d person suggested that a reasonable Circuit MINZNER, B. WE CONCUR: PAMELA complaint in re- have filed a formal would SERNA, PETRA JIMENEZ PATRICIO M. prior resign- to sponse to sexual harassment CHAVEZ, MAES, L. and EDWARD claim as a mat- ing and barred worker’s Justices. ter of law.

Here, employee] apparently able [the for

to under these circumstances sev- work showing no ei- years,

eral and there was substantially got

ther that the situation request- just quit or that

worse before she against

ing disciplinary employ- [the action Hence, would have been ineffective.

er] 2005-NMSC-004 record, employee] [the on this failed dispute genuine establish to whether 109 P.3d 285 person would have believed Mexico, Plaintiff- STATE of New no that there was reasonable alternative Petitioner, resignation. Id. GRAHAM, Defendant- that, Antonio fact points to the Defendant also Respondent. occurred, changes Plaintiff

even after these job year. on the for over a Plain- remained 28,286. No. investigated security his benefits tiff social early Supreme for retirement. When Plaintiff submit- Court of New Mexico. by resignation he did so ted his letter March giving a full month’s notice. Plaintiff was stay on asked Cardona to reconsider job, resigned. but refused issue a Defendant asks that we

bright-line requiring prior notice in all rule

instances, stipulating time within which complain of must con- employee leave discharge. so. We decline do

structive many the fact- one factor out

Notice is looking specif- at the

finder to consider when case. The same

ic circumstances each sur- to the circumstances

true long on

rounding employee how remains job from suffer onerous continues us, we affirm In the case before

conditions.

summary judgment not because residue, papers and rolling

noticed stems, top a differ- including seeds and on Additionally, the officers found ent dresser. living-room on floor in roach in a front of the sofa and bud The officers crib in the master bedroom. bag plastic sandwich with a also recovered marijuana just inside the small amount on a next to a fish tank. front door table in and The officers saw two infants the house they diapers. in The noticed were General, Madrid, Attorney A. Pa- dirty untidy, Patricia house was and with soiled Gandert, Attorney Gener- throughout tricia A. Assistant clothes on the floor the house Fe, NM, al, for Petitioner. Santa dishes with old food on them. unwashed drug charges, Along with various the State Defender, Bigelow, Public Wil- John Chief charged Defendant with child abuse. O’Connell, Appellate De- liam A. Assistant fender, Fe, NM, Respondent. Santa trial, testified At Officer Lee Wilder {3} part the most

that the bud is desirable OPINION marijuana plant generally people smoke. part containing high plant It is the SERNA, Justice. tetrahydrocannabinols. concentration of Of- trial, An- Following a Defendant {1} marijuana Dusty explained that ficer Collins of, among tonio Graham was convicted other put in up and dries in buds that are broken abuse, contrary charges, child to NMSA cigarettes bud found bowls or to smoke. The (2001). 1978, § appeal, On the Court 30-6-1 piece the solid with the crib was one other con- affirmed Defendant’s stem. his of child victions but reversed conviction Kelly testified that she was unaware evidence. abuse on the basis of insufficient living marijuana on floor of the room ¶ if the chil- in the She stated that crib. granted 81 P.3d 556. This ingested believed had she dren petition for writ of certiorari to the State’s Kelly they become would have sick. Appeals, and the Court of we now reverse. testified that Defendant told her living room on the presence I. Facts baby’s was fault and floor and crib his residence of his Defendant lived question sorry. response In to a that he was Kelly, with their two chil- girlfriend, Amanda drugs important to were more about whether dren, ages September and three. On children, Kelly than his recited Defendant 2000, police an war- sought to execute arrest thoughts only his Defendant’s statement that Kelly’s house. Police rant for Defendant at smoking selling drinking, dope, were about apprehended Defendant outside the officers running drugs, the streets. in a truck. With the consent house they truck, testified that Two witnesses the officers found crack owner of immediately De- Kelly’s before truck. At that inside house in a search of the cocaine September fendant’s arrest on Kelly stepped out of the house and point, they that while happening. officers These witnesses testified The asked what Kelly’s living they saw two were in the room strong odor of burnt smelled running play- They around the house emanating the house. obtained from Inside, the mari- ing. testified that Officer Collins warrant for the house. search cocaine, living to juana in the room was accessible crack sever- officers found additional addition, marijuana, marijuana photograph children. plastic bags with al crib admitted as exhib- inside the hanging in a dresser drawer bud pipe, and scale it. master The officers also bedroom. II. Standard of Review ask itself whether it believes that evi- guilt beyond dence at the trial established to “[T]he test determine suffi Instead, a reasonable doubt. the relevant ciency of New Mexico ... question whether, viewing after the evi- whether substantial evidence of di either a light dence most favorable sup rect circumstantial nature exists prosecution, any rational trier of fact could port beyond guilt verdict of a reasonable have found the essential elements every doubt with element essential crime a reasonable doubt. This Sutphin, to a conviction.” State v. familiar standard gives play full 126, 131, responsibility fairly trier of fact explained test involves two testimony, weigh resolve conflicts separate parts. Coffin, 1999— evidence, and to draw reasonable infer- NMSC-038, 73,128 477; N.M. 991 P.2d ences from basic facts to ultimate facts. Sanders, 452, 456, 117 N.M. 872 P.2d Once a defendant has been guilty found of (1994). 870, First, reviewing 874 court “[a] charged, the crime the factfinder’s role as light must view the most weigher preserved of the evidence is state, resolving favorable to the all conflicts through legal judi- a upon conclusion that indulging permissible therein and all infer cial review all the evidence is to be of ences therefrom in favor the verdict.” light considered in the most favorable to Sutphin, 131, 107 N.M. at 753 P.2d at 1319. prosecution. Second, appellate court “determines evidence, whether the in this viewed man 318-19, (citation, Id. at quota- 99 S.Ct. 2781 ner, justify by any finding could rational marks, omitted). quoted authority tion trier fact that each element of the crime cautionary We have used similar language: charged beyond has been a rea established reviewing “A may reweigh court neither Sanders, 456, 117 sonable doubt.” N.M. at judgment evidence nor its substitute for that added). 872 P.2d (emphases at 874 jury.” Sutphin, 131, of the 107 N.M. at 753 Thus, P.2d at 1319. question is not setting In out the standard for whether this Court is convinced of Defen- reviewing sufficiency evidence, of the guilt beyond dant’s “a upon doubt based rea- Court stated that “the evidence son and common sense —the kind of doubt and inferences drawn from that evidence that person would make a reasonable hesi- must be sufficiently compelling so that graver tate to act and more important hypothetical reasonable factfinder could have Rather, affairs of life.” UJI 14-5060. subjective reached ‘a state near certitude ” whether, question is viewing all of the evi- guilt of the of the accused.’ a light dence in most upholding favorable to ¶ 2003-NMCA-127, 12,134 613, N.M. 81 P.3d verdict, jury’s there is substantial evi- omitted). (quoted authority 556 It is indeed dence in the support any record to rational true that the standard of reason being trier of fact so convinced. “[Substan- able subjec doubt has “a been described as tial evidence means such relevant evidence as tive state of near guilt certitude of the might a reasonable mind accept adequate as 307, accused.” Virginia, Jackson v. 443 U.S. ” support Lujan, conclusion.... State v. 315, (1979). 2781, 99 S.Ct. 61 L.Ed.2d 560 667, 669, 13, 103 N.M. 712 P.2d 15 (Ct.App. This standard also has been described as 1985), quoted Salgado, in State being beyond “a upon doubt based reason NMSC-008, 25, 974 N.M. P.2d 661. and common sense —the kind of doubt that would make a person hesitate Sufficiency III. of the Evidence act in graver important and more affairs of life.” UJI begin 14-5060 NMRA 2005. Howev our review the suffi er, in articulating ciency the reasonable support doubt stan of evidence to Defendant’s dard referenced of Appeals, Court conviction the elements of child abuse. emphasized United Supreme States For the form of the crime with which Defen appellate that an reviewing court charged, suffi dant was had the burden ciency does proving beyond not a reasonable doubt circumstantial or under direct or a child Defendant caused drugs posed placed presence in a situation a direct and age eighteen to be life health endangered their imminent threat to them.” Gra- disregard. ham, 2003-NMCA-127, ¶26, Sec- so with a reckless did 30-6-l(A)(3), (D)(1). A reckless disre- tion We first note that direct evi- P.3d 556. Bell, “knew or gard requires that Defendant required. State v. dence not 134, 137, have known conduct created a [his] should 560 P.2d We also risk, disre- [he] substantial foreseeable disagree with this assessment the evi- wholly ... was indiffer- garded risk and proximity, With two wit- dence. consequences of the conduct that, room, ent to living while in the nesses testified safety” of or chil- the welfare and the child they running the children around observed 14-604 NMRA 2005. dren. UJI immediately the house before the arrest and search. Officer Collins testified including endangerment By on the floor front sofa 30-6-1, Legislature expressed its Section addition, was accessible to the children. crime of child abuse to intent extend the crib, whole bud was found if child has certain even conduct sleeping piece of furniture that functions Ungarten, suffered harm. area for an infant. We believe that (Ct.App. supports a reasonable inference evidence 1993). [L]egislature’s crimi “The decision to the immediate vi- that the children the conduct described the statute nalize marijuana, cinity of that it was accessible the compelling public pro reflects interest them, that there a reasonable was tecting Lujan, children.” 103 defenseless possibility they would come in contact that 17; 671, at 712 at accord Santil N.M. P.2d with the controlled substance. See State v. 219, State, 215, v. 115 N.M. 849 P.2d lanes 522, 524, 587, Romero, 79 N.M. 445 P.2d 589 (1993). “[C]hildren, 358, who often 362 are (“An merely logi- is (Ct.App.1968) inference defenseless, greater in need of times are evidence.”) cal from facts and deduction Lucero, v. 87 protection than adults.” State Jones, 395, 401, (quoting 39 N.M. 48 State 242, 1215, 245, 1218 (Ct.App. 531 P.2d N.M. (1935)). 403, Appeals The Court of P.2d 406 1975). as, However, designating the crime no there was evidence that the indicated that minimum, degree felony, at a third Section Graham, for either child. crib was used 30-6-l(E), Legislature did not intend to the ¶ 613, 21,134 81 N.M. P.3d creating possibil “a criminalize conduct mere However, photo- the introduced a remote, ity, however that harm result” depicting the contents and state the graph 609, Ungarten, 115 N.M. at 856 to a child. police the of the Two crib at time incident. Coe, 571; N.M. at accord State v. 92 P.2d that the crib was the officers testified 973, 321, 320, (Ct.App.1978) 974 587 bud in the crib master bedroom and the (rejecting argument of its the “that because teddy bear. This was found underneath requirement covers negligence the statute evidence, purpose well as the inherent as any might harm that befall the and all ages the piece of furniture and child”), grounds by San overruled on other children, supports a inference reasonable 7, tillanes, & n. P.2d at 115 N.M. at 225 849 sleeping as being was used that the crib must ‘a 368 n. 7. “There reasonable & From for at one of the children. area least probability possibility that the child will be ” testimony the officers did not see the McGruder, endangered.’ 1997- bear, they teddy picked up the the bud until ¶ 37, 302, NMSC-023, P.2d 150 940 sug- evidence and from the absence (quoting N.M. at Ungarten, just put gesting had been that the omitted). 571) (quotation at marks crib, inference could also reviewing the rele In the bud had been crib be drawn that abuse, charge Court of child vant slept. while direct Appeals that there was “no stated respect to With the two children were ever Appeals discounted drugs and no that were found close testimony Kelly. Noting Kelly’s no In testimony, ob- addition to Offi- cer jection Kelly’s testimony, part made Wilder testified that bud had been marijuana plant containing highest the Court that Kel- nonetheless determined tetrahydrocannabinols. concentration of testimony ly’s inadmissible and “that Legislature designated also note that the has testimony objection to which no inadmissible as a Schedule controlled sub- only probative is made has such value as its 1978, 30-31-6(0(10) § stance under NMSA power.” persuasive rational (1978), LSD, heroin, together with nu- NMCA-127, 21, 81 P.3d 556. Moreover, drugs. merous other Legisla- Irrespective admissibility, of its we believe ture has penalties increased the for available Appeals applied that the Court of an incor- substances, distributing specifical- controlled Kelly’s rect in reviewing testimony. standard ly marijuana, including opposed to minors as proposition weigh For the that it could Kel- adults, (1987), § NMSA 30-31-21 testimony, ly’s the Court of relied on penalties distributing and has increased 749, 752, Vigil, vicinity controlled substances of mi- (Ct.App.1982). We believe the Court of by creating zones, drug-free nors school Appeals’ Vigil misplaced. reliance on 30-31-22(C) § NMSA From Vigil, testimony hearsay, issue was statutes, Legislature these has indicated admissible, it despite and was the existence its danger- determination that is a defendant, objection by because, anof substance, particularly ous for minors. It is revocation, probation proceeding knowledge also common same governed by the Rules of Evidence. Id. at amount of an intoxicant can have a more 750-51, question 643 P.2d at The 619-20. on profound impact on infants and toddlers than appeal hearsay was whether alone could es- on adults or even older children. The Court probation tablish a violation. Id. at Appeals, example inadequacy as an circumstances, P.2d at 620. Under these case, present of the record in the cited to power persuasive Court assessed the rational expert case in which an testified about the testimony. 752, Id. at at 643 P.2d 621. extremely large quantity marijuana of neces- weight testimony This evaluation of the of sary for a lethal dose. similarly hearsay NMCA-127, 24, has 613, been restricted to serv- 134 P.3d N.M. 81 556. However, 6—1(D)(1) ing as supporting proscribes the sole evidence a verdict Section 30— Romero, may endanger health, that conduct in other cases. 67 See N.M. life, well as the of 82, 86, (1960) a child. It was thus (noting 352 783 that unnecessary for the State to show that the “hearsay, objection, admitted without is to be amount of accessible to the chil- along considered with other evidence de- dren could have been fatal. ille- Given the termining whether there is substantial evi- gality of Legislature’s the substance and the appeal”). dence to sustain a verdict on Out- particu- determination that the is substance context, non-hearsay side this limited for minors, larly dangerous to we believe it was Kelly’s testimony, such as we follow the rule jurors’ within the experience to decide whether the amount of accessible not ... judgment [w]e do substitute our endangered of three-year-old the health for of concerning the factfinder child a one-year-old child. credibility of witnesses or the weight be Contrary applicable to the {13} given testimony. Testimony by their review, appears standard of it that the Court witness whom the factfinder has believed Appeals parsed testimony and viewed rejected by an appellate only be court only in light probative verdict if is a impossibility there that the pieces value of individual evidence. The falsity statements are true or the Appeals “Kelly’s Court of stated that testi apparent statement is without resort mony significance beyond takes on far what or inferences deductions. should,” Graham, ¶26, it Sanders, 117 N.M. at 872 875 134 that “[t]he ration (citation omitted). persuasive testimony al power Kelly’s of ... ¶ 21, light minimal,” not know in a most favorable to ver- do record “[w]e is id. dict, or that a rational could had access determine if the children users,” abuse, drugs drug or including proximity their each element of child find ¶ 25, know do not where id. and that possibility “[w]e to the health to the others relation a reasonable doubt. house, the ‘roach’ that was or whether smoking.” earlier from this or found resulted IV. Conclusion divide-and-conquer approach is not Id. This that Defendant’s convic- We conclude appellate for contemplated in review suffi by supported tion of child abuse is sufficient ciency United States evidence. Cf. record. We reverse Arvizu, 266, 274, S.Ct. U.S. and affirm conviction. (2002) (noting totality of that a L.Ed.2d review for reasonable sus the circumstances IT IS SO ORDERED. investigative stop in picion supporting an “divide-and-conquer analy consistent with WE PETRA JIMENEZ CONCUR: isolation). at individual facts sis” that looks CHÁVEZ, MAES, Justice, L. EDWARD indulge the evidence as a whole We view concurring), (specially RICHARD C. Justice in favor of the all reasonable inferences BOSSON, (dissenting), and Chief Justice “An not jury’s appellate court does verdict. MINZNER, PAMELA B. Justice evaluate evidence to determine whether (dissenting). hypothesis designed could which some be CHÁVEZ, (specially concurring). Justice finding of innocence.” consistent with Sut 130-31, P.2d at phin, 107 N.M. at 1318- I concur with the authored Appellate courts “faced with a record 19. separately I write to address Justice Serna. conflicting in supports facts historical dissenting the concerns raised some presume if it ferences must does —even opinion. affirmatively appear in the record —that prove In order to the offense child trier of fact resolved such conflicts 30-6-1(0(1), under Section abuse prosecution, and must defer to favor of prove beyond a must reasonable doubt Jackson, that resolution.” 443 U.S. at knowingly, intentionally negli- Defendant do not infer 99 S.Ct. search cause, justifiable permit- gently, and without contrary supporting a re ences verdict or placed in a situation that ted type weigh this of anal the evidence because may endanger life or health. the child’s ysis appellate would substitute an court’s 30-6-l(D) 1978, § In child NMSA jury. judgment for that of the cases, Legisla- that abuse we have held the record, in the a From the evidence “may endanger” phrase to ture intended the jury could reasonable infer- rational draw possi- probability “a or constitute reasonable marijuana to that was accessible ences the bility” endangered. the be that child will children, a the that there was Ungarten, in the would come possibility that In case (Ct.App.1993). this the marijuana, with and that there contact the had jury instructed that the State the was possibility to the was a reasonable beyond proving a reasonable doubt burden very ingesting mari- young children from the a child or children to that Defendant caused evidence, the juana. conjunction In with this endangered placed in a situation which jury testimony that Defendant traf- heard NMRA their life or health. UJI 14-604 proximity in to crack cocaine close ficked 2005. kept a sub- the children and that Defendant although a my opinion, this is close In quantity of and mari- stantial crack cocaine case, support was sufficient to the evidence places the juana in around house. various agree I do not with the the conviction. being responsible also admitted to Defendant by sustaining this that conviction leaving marijuana places dissent that is not parenting make a crime. This jury easily bad could infer were accessible or simply parenting case of a “mistake” Viewing all in the bad children. evidence by ing as In characterized dissent. this case there was insufficient that evidence three, ages beating two were run- child who witnessed of her moth- er ning faced a “substantial risk” to around the house while adults her emotional smoked ¶¶ or health. 20- marijuana cigar paper. marijua- A rolled case, 53 P.3d 909. In that cigarette na bud was left on floor where the drunken father came home late one playing. bag the children An open and, night, as slept, began the children he to marijuana sitting residue left on a table. beating enough beat his wife. The was loud Marijuana seeds and stems were left on a child, couple’s eight-year-old to awaken baby dresser the room where the crib was who to to hap- went the room see what was baby In marijuana crib located. pening. The child testified that she saw her bud, which, according expert testimony, to beating dad her as the mother mother asked potent marijuana part plant. the most him stop. appeared to When child stronger The would been much case had door stopped beating the father the child’s that witness testified the children were child, mother and said to your “Get little chewing marijuana left within their reach f_-ing ass back to bed because don’t want a toxicologist regarding and had testified you your to have see me kill mother.” Id. toxicity marijuana. However, in this case ¶5. The Court of held there was require the law does not direct such evi- jury insufficient evidence for to find a McGruder, dence. See probability possibility” “reasonable or that NMSC-023, 150. daughter’s emotional health was endan- jury’s Given the reasonable inference in this ¶ 20, gered, despite id. testimony from the bud, particularly case that the mother the child was substance, potent illegal could harm a witnessed, scared and saddened what she ingested, child if I believe the evidence of and that for some time the child lived fear baby’s left in the crib and the away,” she would be “taken or that her playing areas where the children were injure mother, father would or kill her her support finding sufficient to of a reasonable days the extent many she missed probability possibility the children ¶¶ school. Id. 11-12. The dissent endangered. would be case underscores the lack of di- persuaded by I am also not the con- rect, physical Trujillo, harm the child in expressed cern dissent emphasizing that “the father ordered his holding leaving Court’s criminalizes house- just child to leave the room so she would not products hold accessible to Each children. be in anger.” the direct his line of products to which the dissent refers is my opinion, type requiring this legal. I do not read Justice Serna’s sustain finding of child goes abuse well prohibiting legitimate Additionally, acts. beyond requiring prosecution prove products toxic household have child resistant each of a element crime a reasonable caps. The Defendant in this case left the doubt. accessible children without tak- community Justice is a in project {22} ing any steps whatsoever to eliminate or participate directly which individuals when minimize the risk that the children would serving jury. certainly a ap- on While it is ingest marijuana. the A reasonable fact propriate in jury some to a cases reverse finder could such find that an act constitutes evidence, conviction based on insufficient this by Legislature. child as abuse defined the jury is not the case. The in instructed Finally, the dissent relies on State v. {21} way may such a vague that what be a Trujillo support proposition for the that a requiring only overbroad showing a statute — directly way child must be sup- harm’s to placed that a was negligently child in a situa- port a conviction of child Much abuse. like endangered tion that have child—in the case, Trujillo the dissent this seems to required fact a showing that the child was require proof injury of placed actual all endangered in a situation which the Trujillo Appeals doubt. the Court of previously child’s life. For the reasons stat- abuse, ed, jury finding a jury reversed of child I a hold- believe find reasonable could the up province to now been the and which has on the direct guilty based defendant neglect law of civil jury abuse and statutes or the presented to the circumstantial 1978, § negligence. NMSA 30-6-1 See could be inferences that making a act risk criminal out such evidence. drawn from being parent. a merely bad legislative interpretation of If our {23} agree our I with {27} abuse, it relates to child intent is incorrect as presented an anemic case in that the State safety of chil- us err on the side let support charge. Despite abuse child Legislature did intend for If the not dren. testimony formally police of a officer to the cir- definition reach the child abuse handling trained the identification and illegal placed drugs in which are cumstance marijuana, and forensic chemist from the Legislature within reach lab, failed to elicit state crime the State tighten up the definition and should revise expert testimony describing toxicity vague statute. may be a and overbroad what directly pieces marijuana or two small reasons, I concur in foregoing Por the potential linking such a small amount to its conviction for child affirming Defendant’s Presumably, upon small children. effects abuse. in- could done so without undue State have convenience, have and the would had BOSSON, (dissenting). Justice Chief to kind of evidence it deserved make provided not I do believe State informed decision. trial the children sufficient evidence at However, only this satisfies half the marijua- actually danger ingesting proving degree Beyond State’s burden. na, respectfully I dissent. To therefore to the child’s health from risk abuse, the State establish a claim of child proximity: to generally, prove had caused must demonstrate that defendant direct, actually placed in a that a child was placed “to in a situation the children be danger.1 to danger line to The endangered or health.” which life [their] more particular child must be than NMRA 2005. must 14-604 The State UJI merely Although theoretical. law does potentially first show injury, actual require a child suffer substance, the chil- dangerous and then that greater require it the hazard be does actually it. dren were from Ungarten, possibility.” than “mere (Ct.App.1993). P.2d focused on Because most of trial substantial; arising The of harm has be charges from Defendant’s risk the other every legislature dealing did not intend criminalize drug dealing, the one count way. might possibly come a child’s little at trial harm that child abuse received attention ¶¶ 43- only Massengill, presented from either side. The State opening 354. Our courts theory charge in its inter- previously lent such reasonable child statement: that Defendant committed statute, pretation to child abuse leaving in areas ac- abuse making “In do so here. believe should cessible to children. State felony, legisla- NMCA-127, 19, degree this offense third crime, now, poten- conduct with ture intended address But it never before has been tially consequences to life in an area serious potentially toxic chemical leave coupling The the statute possibility, health of child. only a mere how- where there sug- remote, ‘health’ with the word ‘life’ might come in the word that a ever legislature intended gests to us that the it. cannot what the contact with This ex- in which children are in made crimi- address situations legislature had mind when it posed risk to their health.” degree felony. substantial nal a third Other- child abuse ¶ 2002-NMCA-100, 21, Trujillo, wise, criminalizing huge territories of State riskwe careless, 649, 53 909. though perhaps N.M. P.3d benign, conduct producing marijuana, evi- presumed toxicity the burden of nonetheless had with the of 1. Even proximity. fully recognizing illegality, dence of its State and mind, away. With this in fifteen appeal caution would feet On from a convic- point abuse, reversed, out what self-evident about modern tion for child the court find- They households. contain a wide assortment ing insufficient evidence that the child’s mere commonly agents, potentially of used toxic to presence in car put sufficiently her at children, paint products, detergents, such as risk to constitute criminal child at abuse. Id. bleaches, insecticides, cleansers and herbi- Similarly, Trujillo, 846 P.2d at 340. in cides, ciga- beverages and even alcoholic and ¶ 2002-NMCA-100, 7, time, agents rettes. Most of the toxic these 909, a father was convicted of child abuse key. Sensibly, lock are not under and as a daughter after his witnessed father’s at- society place degree we of considerable upon tack her from mother the bedroom parents; trust and discretion in we trust doorway out danger. direct line them precautions to undertake reasonable to Oddly, the father his child to ordered leave keep agents away these from toxic children. just the room so she would be in not merely We do not a criminal act make out ¶ anger. Again, direct line his Id. mistake; all, making a is a after none us reversed, finding any court risk of dan- perfect parent. ger physically was remote. Id. 19.2 In interpreting the abuse child stat- Defendant’s case similar both ute, recognized our courts have the distinc- Trujillo though Roybal. and Even Defen- danger tion between imminent potentially dangerous, dant introduced a ille- which is example, more remote. For we house, gal substance into the Defendant has upheld have child abuse convictions when already possession been convicted of places violent behavior adults trafficking. separate With to the physically proximate to that di- violence and abuse, offense of child failed to rectly way. in harm’s See State v. McGru- demonstrate that either child was ever close der, 1997-NMSC-023, ¶38, enough marijuana to the seriously be at (upholding P.2d 150 child abuse convic- trial, presented risk.3 At despite the State no evi- any tion lack physical harm dence that gun when these children were in the defendant aimed a at a woman and ever marijuana daughter threatened to kill her while crib with the her bud or in the even her); standing Ungarten, fact, behind 115 N.M. at very same bedroom. there was little 609-10, 856 at 571-72 (upholding linking piece either abuse conviction when defendant’s knife location of the children. The at a parent thrusts child’s came close to the only indication from the regarding record child). cases, In these the evidence demon- they children’s whereabouts is that were run- physically strated children were close house, ning around in not the bedroom inherently dangerous situation. crib, approximately p.m., with the 5:30 shortly before Defendant’s arrest. When the hand, On the other our courts house was secured and officers awaited reversed child abuse convictions when child warrant, likely search the children were most in general potentially area of a outside the house with situation, their mother. For all dangerous but child is know, placed Defendant placed directly way. example, in harm’s For in bud the crib Roybal, day, earlier and we if (Ct.App.1992), illegal have no idea the children were a father sold ever actual- drugs, dangerous ly itself a crib at proposition, while the same time as the contra- daughter his ear waited about ten to band. states, implies special majority

2. The opinion correctly concurrence dis- 3. As the certain Defen- Appeals opinion responsibility satisfaction presence Court of dant full took for the Tmjillo. Trujillo Yet law is the of this house its location. However, opportunity proximi- State. This Court had the to review Defendant never conceded its certiorari, declined, yet ty it on to do so. The nor was there other direct present majority change proximity maltes no its actual to the children in Trujillo. place terms of and time. 2005-NMCA-033 Importantly, was no evidence there unsupervised left children were ever fact, to make mother. their Nancy EDENS, L. proximate physically these Petitioner/Appellee/Cross-Appellant, crib, an adult would have crib, child, place the child pick up the Jr., EDENS, Respondent/Ap- A. Walter unsupervised in the leave the child then pellant/Cross-Appellee. But the moth- crib bud. with 24,342, 24,597. Nos. Defendant, er, parent there is no with her house Appeals of New Court of Mexico. likely have so that she would been Jan. 2005. Defendant of This does not absolve careless. Denied, 29,055, No. Certiorari reprehensible or otherwise excuse his blame March But children. it does behavior toward these particu- guilt absolve Defendant under statute, the evidence

lar child abuse because prove the elements of crime

does not legislature. by our

established implica- I fear the significantly, More to what the

tions of this with

legislature as criminal child has defined going If are to convict based on

abuse. speculation than what

nothing more

might happened if events had certain future, then there are almost

occurred jury might conclude is

no limits what crimes; juries abuse. But do not define legislature And legislature does. our which, “endangerment,”

required law, existing case means some-

under our might more “what have been.”

thing than reading stat- its broad Under

ute, majority effectively allowing legislature in usurp the role of the I

determining abuse. what constitutes child standard-less, open- agree to such a

cannot especially of criminal stat- reading,

ended impli- especially process fear the

ute. I due give to which we rise with such

cations

unprecedented reading of our child abuse Accordingly, respect, I am com-

law.

pelled to dissent. MINZNER, B. PAMELA CONCUR.

Justice.

Case Details

Case Name: State v. Graham

Court Name: New Mexico Supreme Court

Date Published: Mar 1, 2005

Citation: 109 P.3d 285

Docket Number: 28,286

Court Abbreviation: N.M.