Lead Opinion
{1} Defendant Brigette Trossman was convicted of negligently permitting child abuse by endangerment, contrary to NMSA 1978, Section 30-6-l(D) (2004, prior to amendments in 2005),
Evidence that demonstrates that a child has been knowingly, intentionally or negligently allowed to enter or remain in a motor vehicle, building or any other premises that contains chemicals and equipment used or intended for use in the manufacture of a controlled substance may be deemed evidence of abuse of the child.
Defendant appealed her conviction to the Court of Appeals, arguing (1) that this instruction undermined the jury’s responsibility to find all of the essential elements of her charge, and (2) that there was insufficient evidence to support her conviction. State v. Trossman, No. 26,576, mem. op. at 2 (N.M.Ct.App. Feb. 28, 2008). The Court of Appeals rejected these arguments, id, and Defendant sought a writ of certiorari from this Court. The Court granted certiorari on both issues. State v. Trossman,
{2} We reverse the Court of Appeals on both issues. First, we hold that Jury Instruction No. 4, which constituted an evidentiary presumption under our Rules of Evidence, was erroneous because a reasonable juror could have concluded that he or she was not required to find the essential element of endangerment beyond a reasonable doubt. Second, we conclude that there was insufficient evidence to support Defendant’s conviction of child abuse. Defendant’s conviction is therefore vacated.
BACKGROUND
{3} The facts in this case are not in dispute. Responding to reports of suspicious purchases of pseudoephedrine, police followed Billy Glenn, later a co-defendant in this ease, as he and several unidentified adults made additional purchases of ephedrine and matches, both possible methamphetamine precursors. Glenn was observed entering a house carrying several bags. Police watched the house that evening and then left for approximately thirty-six hours, during which time they obtained a search warrant. When the warrant was executed, police apprehended Defendant, Glenn, and one other female. Inside the house police found fifty-three
{4} Defendant was charged with violating Section 30-6-1, which at that time provided in relevant part that:
D. Abuse of a child consists of a person knowingly, intentionally or negligently, and without justifiable cause, causing or permitting a child to be:
(1) placed in a situation that may endanger the child’s life or health....
F. Evidence that demonstrates that a child has been knowingly, intentionally or negligently allowed to enter or remain in a motor vehicle, building or any other premises that contains chemicals and equipment used or intended for use in the manufacture of a controlled substance shall be deemed prima facie evidence of abuse of the child.
{5} At the end of Defendant’s trial, Defendant moved for a directed verdict on the grounds that there was no evidence “to show that the child was in the proximity or could have been exposed to [dangerous chemicals and equipment].” The motion was denied. The parties proceeded to discuss proposed jury instructions and agreed on an instruction on negligently permitting child abuse under Section 30-6-l(D) based on UJI 14-605 NMRA that read as follows:
INSTRUCTION NO. 3[.]
[Defendant] has been charged with negligently permitting child abuse which did not result in death or great bodily harm. For you to find [Defendant] guilty of child abuse which did not result in death or great bodily harm, as charged in the Grand Jury Indictment, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. [Defendant] permitted [her child] to be placed in a situation which endangered the life or health of [her child];
2. The defendant acted with reckless disregard. To find that [Defendant] acted with reckless disregard, you must find that [Defendant] knew or should have known the defendant’s conduct created a substantial and foreseeable risk, the defendant disregarded that risk and the defendant was wholly indifferent to the consequences of the conduct and to the welfare and safety of [her child][;]
3. [Defendant] was a parent, guardian or custodian of the child, or the defendant had accepted responsibility for the child’s welfare;
4. [Defendant’s child] was under the age of 18;
5. This happened in New Mexico on or about August 12, 2004.
In addition, the State proposed an instruction with the exact wording of Section 30-6-l(F).
INSTRUCTION NO. 4.
Evidence that demonstrates that a child has been knowingly, intentionally or negligently allowed to enter or remain in a motor vehicle, building or any other premises that contains chemicals and equipment used or intended for use in the manufacture of a controlled substance shall [may] be deemed prima-facie evidence of abuse of the child.
Defendant was convicted.
{6} Defendant appealed, continuing to claim that the instruction was flawed and the evidence was insufficient to convict her. Trossman, No. 26,576, mem. op. at 2. The Court of Appeals affirmed the conviction. Id. at 8. First, the Court held that Jury Instruction No. 4 was proper because it “simply gave an alternative definition of what can constitute placing a child in a dangerous situation. It did not mandate a conviction ....” Id. Second, the Court held that the evidence was sufficient to support Defendant’s conviction because there was testimony that her child lived in the house and that being present around the chemicals was dangerous. Id. at 5-6. We reverse the Court of Appeals and vacate Defendant’s conviction.
DISCUSSION
I. JURY INSTRUCTION NO. 4 COULD HAVE CONFUSED OR MISDIRECTED A REASONABLE JUROR
{7} Defendant argues that Jury Instruction No. 4 “mandated a conviction” of child abuse because it “took away an element from the jury’s determination-the element of whether the defendant’s actions of having a variety of lawful materials in her house amounted to child abuse.” In support of this argument, Defendant cites to a series of cases including State v. Parish,
{8} In Parish,
{9} Rule 11-302(A) NMRA provides that “in criminal cases, presumptions against an accused, recognized at common law or created by statute, including statutory provisions that certain facts are prima facie evidence of other facts or of guilt, are governed by this rule.” (Emphasis added.) A presumption may be instructed to the jury in a criminal trial, subject to certain restrictions considered later in this opinion. Rule 11-302(C). In the most general terms, “a presumption is a standardized practice, under which certain facts [the basic facts] are held to call for uniform treatment with respect to their effeet
{10} A careful reading of Sections 30-6-1(D) and (F) requires us to slightly modify this conclusion, however. First, we note that the acts described in Section 30-6-l(F) are consistent with only one theory of child abuse: endangerment under Section 30-6-1(D)(1). Sections 30-6-l(D)(2) and (3) create the other possible forms of child abuse when a child is “tortured, cruelly confined or cruelly punished” or “exposed to the inclemency of the weather},]” respectively. Second, we observe that the mens rea standard of Section 30-6-l(F) (“knowingly, intentionally or negligently”) is nothing more than a restatement of the mens rea standard under Section 30-6-l(D). Given these considerations, we hold that the presumption created by Section 30-6-l(F) can only be understood to allow the basic fact of allowing a child “to enter or remain in a motor vehicle, building or any other premises that contains chemicals and equipment used or intended for use in the manufacture of a controlled substance” to serve as evidence of the essential element of endangerment under Section 30-6-1 (D)(1), when this theory of child abuse is at issue. See UJI 14-605.
{11} Rule 11-302 also specifies the effect that the basic facts under Section 30-6-1 (F) should have regarding the presumed fact of endangerment. The jury may, but is not required to, infer the presumed fact upon evidence of the basic facts; in other words, “[t]he court is not authorized to direct the jury to find a presumed fact against the accused[,]” if the jury finds the basic facts. Rule 11-302(B); see also Rule 11-302(C). “This provision incorporates the constitutional requirement that presumptions not be conclusive in criminal cases even if unrebutted.” State v. Matamoros,
{12} Rule 11-302(C) guides the trial court in assuring that a jury instruction is given effect only as a permissive inference:
Whenever the existence of a presumed fact against the accused is submitted to the jury, the court shall give an instruction that the law declares that the jury may regard the basic facts as sufficient evidence of the presumed fact but does not require it to do so. In addition, if the presumed fact establishes guilt or is an element of the offense or negatives a defense, the court shall instruct the jury that its existence must, on all the evidence, be proved beyond a reasonable doubt.
Proof that [Defendant] permitted [her child] to be placed in a situation which endangered the life or health of [her child] is an essential element of negligently permitting child abuse as defined elsewhere in these instructions. The burden is on the state to prove that [Defendant] permitted [her child] to be placed in a situation which endangered the life or health of child beyond a reasonable doubt.
In this case if you find that it has been proved that [Defendant] allowed [her child] to enter or remain in a motor vehicle, building or any other premises that contains chemicals and equipment used or intended for use in the manufacture of a controlled substance, you may but are not required to find that it has been proved that [Defendant] permitted [her child] to be placed in a situation which endangered the life or health of [her child]. You must consider all of the evidence in making your determination. In order to find the defendant guilty of negligently permitting child abuse, you must be convinced beyond a reasonable doubt that the defendant permitted [her child] to be placed in a situation which endangered the life or health of [her child].
{13} Although the trial judge made several well-considered changes to the language of Section 30-6-l(F) before instructing the jury-for instance, changing “shall” to “may”Jury Instruction No. 4 entirely lacked the marked emphasis placed by Rule 11-302 and UJI 14-5061 on the necessity that the jury find the essential element of endangerment beyond a reasonable doubt. Thus, while we disagree with Defendant’s characterization of Jury Instruction No. 4 as mandating a finding of guilt, we believe that the risk of confusion caused by this instruction is equally troubling. See State v. Montano,
{14} Neither can we conclude that other instructions cured the error. See State v. Crosby,
II. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT DEFENDANT’S CONVICTION
{15} Defendant claims that the evidence presented at trial was insufficient to support her conviction because it did not show that her child was endangered, since he “was not in the residence at the time that any manufacture of any controlled substance took place.” Defendant argues that our review must employ the criterion of endangerment set forth by our child abuse precedents, that endangered children must be “exposed to a substantial risk to their health.” State v. Trujillo,
{16} To decide whether there was sufficient evidence, we conduct the following analysis: “initially, the evidence is viewed in the light most favorable to the verdict. Then the appellate court must make a legal determination of 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.” State v. Lopez,
{17} As an initial matter, we must settle the debate between the parties over whether the sufficiency of the evidence in this case should be decided, as Defendant urges, under traditional endangerment standards or, as the State argues, solely with reference to Section 30-6-l(F). We concede that the State’s position has, on its face, a certain appeal. Section 30-6-l(F) is framed in terms of “prima facie evidence.” In general legal parlance, “prima facie evidence” is “[e]videnee that will establish a fact or sustain a judgment unless contradictory evidence is produced.” Black’s Law Dictionary 598 (8th ed.2004); see also Matamoros,
{18} We cannot adopt this reasoning. To interpret Section 30 — 6—1(F) in accordance with Shaneace L. would bring us into conflict with our specific rule on presumptions. Rule 11-302(B) requires that:
When the presumed fact establishes guilt or is an element of the offense or negatives a defense, the court may submit the question of guilt or of the existence of the presumed fact to the jury, if, but only if, a reasonable juror on the evidence as a whole, including the evidence of the basic facts, could find guilt or the presumed fact beyond a reasonable doubt.
When the Legislature has directed that one or more basic facts may be considered prima facie evidence of a presumed fact, the trial court must test the sufficiency of the evidence of the presumed fact before the jury may be instructed that the presumed fact may be inferred from the basic fact or facts. In Defendant’s case, Rule 11-302(B) requires that the trial court be satisfied that sufficient evidence has been presented of the child’s endangerment before giving an instruction in accordance with UJI 14-5061. As discussed above, this requirement assures that the presumption does not “undermine the factfinder’s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.” Ulster County,
{19} For this reason, to the extent that Shaneace L. suggests that a statutory provision like Section 30-6-l(F), making a basic fact prima facie evidence of a presumed fact, is a standard for deciding the sufficiency of the evidence, it is overruled. However, we have no quarrel with the ultimate outcome of Shaneace Lthere was certainly sufficient evidence of intent in that ease, not because of the presumption, but because of the natural inference that flows from threatening behavior to the intent to annoy or harass. See, e.g., State v. Silva,
{20} Viewing the evidence as a whole under the endangerment standard, we are compelled to agree with Defendant that there was insufficient evidence to support her conviction. We have held that in creating the crime of child abuse by endangerment, “the Legislature did not intend to criminalize conduct creating a mere possibility, however remote, that harm may result to a child.” Graham,
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 situationsin which children are exposed to a substantial risk to their health.
Trujillo,
{21} Applying the substantial and foreseeable risk standard, our courts have found sufficient evidence of endangerment when the defendant invited a minor to drink alcohol, view pornography, and eat possibly tainted food in a filthy house, id. ¶¶ 15-16; when marijuana, a controlled substance determined by the Legislature to be hazardous, had been left by the defendant in his house in locations where children had been playing just prior to its discovery and in a baby’s crib, Graham,
{22} In this ease, we are concerned with the lack of evidence that establishes the presence of the child in the home on or about August 12, 2004 and under conditions that could have endangered his life or health. The evidence supporting the jury’s verdict is as follows. A social worker testified that Defendant told her that the child “lived with [Defendant]” at the house in Chapparal, but could provide no specific dates that the child was present at the house, and in fact stated that the child was not present the night before the raid. A police officer testified that he had seen what appeared to be a child’s room in the house but conceded that he had no personal knowledge about who lived in the room or when he or she had been present. The mere fact that the child normally resided in the home is insufficient. The Legislature requires actual presence, as evidenced by the basic facts detailed in Section 30-6-1 (F)-that the child be allowed to enter or remain in the building at the relevant time. Similarly, every New Mexico case cited above has as its premise that the child was actually present when the dangerous situation occurred.
{23} In addition, our cases require a greater showing of risk of harm. Here, there was testimony that on the day of the raid, the house contained numerous items that were most likely used for methamphetamine production in the house. However, there was no evidence regarding when any of the items had been taken into the house, with the possible exception of some matches, pseudoephedrine, and ephedrine, which testimony implied may have been taken into the house about thirty-six hours before the raid. Police testified that some methamphetamine labs can be moved quickly from place to place and that others cannot, but did not specify into which category the lab in the house fell. Witnesses testified that some of the materials found in the house could be dangerous: iodine could result in burns, lye is a carcinogen, and organic solvents like acetone could be dangerous. However, there was no evidence that any of these legal, household chemicals were actually stored in a manner that could endanger a child in the house. There was ample evidence that the process of creating methamphetamine is extremely hazardous, releasing toxic gases and creating the potential for fires. However,
{24} Viewing the evidence as a whole, we conclude that there was not sufficient evidence to support a finding of child abuse by endangerment. We concede that if the State had produced evidence that Defendant had allowed her child to be present during the process of methamphetamine production, or had stored such dangerous chemicals in ways that could have harmed her child, we would be highly inclined, in light of the precedents cited above, to conclude that there was sufficient evidence that she placed her child’s life or health at risk. Cf. Graham,
CONCLUSION
{25} The Court of Appeals’ opinion is reversed. Because the jury was instructed improperly and because there was insufficient evidence to convict Defendant, her conviction is vacated.
{26} IT IS SO ORDERED.
Notes
. Throughout this opinion, our citations refer to Section 30-6-1 as it appeared prior to tire amendments in 2005. As a result, we refer to current Section 30-6-1(1) as Section 30 — 6—1(F). We also note that Defendant’s indictment and judgment incorrectly refer to the child abuse by endangerment provision as being found at Section 30-6-l(C) instead of Section 30-6-l(D).
. As explicitly described in testimony, these included two metal cans of acetone; one gallon and a separate quart of denatured alcohol; baggies; scales; a mason jar with a bi-layered liquid; a heating mantle; a mason jar with a reddish white powdery substance; Red Devil lye; a plastic sports bottle; a Pyrex cooking dish; coffee filters; iodine; empty blister packs for pseudoephedrine or ephedrine (but apparently no pills); hydrogen peroxide; a cooler; and stained gloves.
. The record does not include this proposed instruction, but we are able to infer its contents from the discussion between the parties in the transcript.
. For example, Jury Instruction No. 3 in Defendant’s case, supra. See also UJI 14-605.
. In fact, there was a third risk as well. As we noted above, the mens rea standard in Section 30 — 6—1(F) is merely a repetition of the mens rea standard in Section 3 0-6-1 (D), and as such would create a needless redundancy if-as happened in the case at bar-it were instructed in the presumption as well as in the normal elements of child abuse. In addition, by including the "knowingly, intentionally or negligently” standard verbatim in Jury Instruction No. 4, the trial court may have violated our holdings requiring criminal negligence in child abuse cases. See, e.g., State v. Mascarenas,
Concurrence Opinion
(specially concurring).
{27} I concur in the majority opinion. I write separately, however, because I disagree