State v. Trossman

462 Grine, In that the Act limits noted IV. CONCLUSION

{36} testimony hearing compensation at the to a testimony, opinions, The and records treating physician provid- or a HCP who has treating of Worker’s HCPs should not have independent pur- ed an medical examination categorically been excluded as a result of the 2006-NMSC-031, suant to the Act. 19. timing designations. of their HCP We there- reading Our of the record this case indi- contrary fore reverse the decision of the cates that Worker’s HCPs had Court of and remand to the WCJ for designations, treatment after their official proceedings further in accordance with this holding premised part and our on that Opinion. understanding. This case is therefore unlike IT IS SO ORDERED. Grine, in testimony which we excluded the a doctor who never treated the worker at all CHÁVEZ, WE CONCUR: EDWARD L. and employer who was retained sim- Justice, SERNA, Chief and M. PATRICIO ply to expert review the case and offer testi- PETRA JIMENEZ MAES and RICHARD mony, meeting with the worker for an evalu- BOSSON, C. Justices. just ation on one occasion for total of ¶25. opinion ten minutes. Id. at Our ex-

plained why reviewing doctor could not treating physician considered under the expertise

Act: “We reiterate that ‘[t]he of a

treating physician training, experience is the familiarity patient and with the whom he or 2009-NMSC-034 treating.

she “expert” testimony The re- 52-l-28(B) quired by Section refers to testi-

mony training, based on experience Mexico, STATE of New Plaintiff- ” (citation omitted). familiarity.’ Id. Respondent, Because we have determined that the testimony of Worker’s HCPs should not have Brigette TROSSMAN, Defendant- excluded, categorically been we reverse and Petitioner. remand to the WCJ to ensure that the testi- mony fully of Worker’s HCPs are considered. 31,010. so, doing emphasize we wish to that noth- Supreme Court of New Mexico. ing Opinion in this is intended to comment on weight given that should be to the testi- June mony late-designated HCPs or other authorized medical Chap- witness. See Jesco, Inc., 707, 708,

man v.

P.2d (Ct.App.1982) (holding

WCJ, finder, reject as fact expert is free to

opinion part). evidence whole or in regard, In that we are mindful of

language in the findings WCJ’s meticulous appears conclusions that to indicate that may fully

the WCJ prof- have reviewed the testimony

fered of Worker’s HCPs and in- findings

tended to make alternative of fact

that their persuasive was less than

that of Dr. Diskant. We remand to the WCJ

so that the WCJ [her] “reconsider alter- findings

native of fact and conclusions of law Atler,

in light disposition.” of our Reichert v. (1994).

gently allowed to enter or remain in a vehicle, building prem- motor other ises contains chemicals intended for manufac- used or use ture of a controlled substance deemed evidence of abuse of the child. appealed Defendant her conviction to the (1) Appeals, arguing Court of this in- jury’s responsibili- struction undermined the ty to find all of the essential elements of her (2) charge, and there was insufficient support evidence to her conviction. Trossman, 26,576, op. mem. at 2008). (N.M.Ct.App. Feb. The Court of id, rejected Appeals arguments, these sought Defendant a writ of certiorari from granted this Court. The Court certiorari on Trossman, both issues. State v. 2008- NMCERT-004, (table). We reverse the Court of First, Jury issues.

both we hold that In- struction No. which constituted eviden- tiary presumption under our Rules of Evi- dence, was erroneous because reasonable Defender, Hugh Dangler, W. Chief Public juror could have concluded that he or she Hewitt, Defender, Nancy Appellate M. Santa required was not to find the essential ele- Fe, NM, for Petitioner. endangerment beyond ment of a reasonable General, Gary King, Attorney K. Max Second, doubt. we conclude that there was General, Shepherd, Attorney Assistant Santa insufficient evidence to Fe, NM, Respondent. for conviction of child abuse. Defendant’s con- viction is therefore vacated. OPINION BACKGROUND CHAVEZ, Chief Justice. The facts in this case are not in dis- Brigette Trossman was con- pute. Responding reports suspicious negligently permitting victed of child abuse purchases pseudoephedrine, police fol- endangerment, contrary to NMSA Glenn, Billy lowed later a co-defendant in 30-6-l(D) (2004, prior to amend- ease, this as he and several unidentified 2005),1 ments after she was arrested in a purchases ephed- adults made additional Mexico, Chapparal, house in New where matches, possible methamphet- rine and both chemicals and involved with meth- precursors. amine Glenn was observed en- amphetamine production were found and the tering carrying bags. house several Police suggested that her child lived there watched the evening house that and then left with her. addition to the normal instruc- hours, approximately thirty-six during for negligently abuse, permitting tion for they which time obtained search warrant. Jury Instruction No. 4 that: executed, police ap- When the warrant was Defendant, Glenn, Evidence that prehended demonstrates a child and one other knowingly, intentionally negli- has been police fifty- female. Inside the house found Throughout opinion, our citations refer to We also note that Defendant’s indictment and appeared prior judgment incorrectly 30-6-1 as it to tire refer to the child abuse result, endangerment provision being amendments in 2005. As a we refer to as found at Sec- 30-6-1(1) 6—1(F). 30-6-l(C) 30-6-l(D). current Section as Section tion instead of Section 30— NO. presence 3[.] of a INSTRUCTION consistent with three items ob- lab.2 One officer also methamphetamine charged neg- has been [Defendant] room, to be a child’s appeared what served ligently permitting child abuse which did during although cross-examina- he admitted bodily great in death or harm. result knowledge personal about that he had no tion you guilty to find [Defendant] For a child had been there or whether who lived abuse which did not result death or particular time. present harm, bodily charged in great jurisdiction over De- worker who took social Indictment, the state must Grand raid later testified child after the fendant’s your satisfaction a reason- that Defendant’s that Defendant had told her following able doubt each of the elements The social worker child lived at the house. of the crime: child had been absent also testified that the permitted 1. to [Defendant] [her child] raid, night and that she had on the before placed endangered be in a situation which the child had been absent not asked whether child]; the life or health of [her any previous nights. 2. The defendant acted with reckless charged violating Defendant was with disregard. To find that acted [Defendant] 30-6-1, which at that time Section disregard, you must find that reckless part that: relevant knew or should have known [Defendant] defendant’s conduct created a substan- person a child consists of a D. Abuse of risk, tial and the defendant foreseeable knowingly, intentionally negligently, or and disregarded that risk and the defendant cause, causing per- justifiable without or wholly consequences was indifferent to the mitting a child to be: to the welfare and of the conduct and (1) in a that en- placed situation child][;] safety of [her health.... danger the child’s life or parent, guardian 3. was a [Defendant] that a F. Evidence that demonstrates child, or custodian of the or the defendant knowingly, intentionally or child has been accepted responsibility had for the child’s in a negligently allowed to enter or remain welfare; vehicle, building prem- or other motor 4. was under the [Defendant’s child] equipment that chemicals and ises contains 18; age of manufac- used or intended for use of a controlled substance shall be ture happened in on or 5. This New Mexico prima deemed facie evidence of abuse of August about 2004.

the child. addition, an proposed the State instruction 30-6-l(F).3 trial, wording the exact of Section At the end of Defendant’s Defen- with attorneys for Defendant and her co- moved for a directed verdict on the The dant objected grounds that evidence “to show defendant that such instruction there was no rights process to due proximity in the or could violated their clients’ that the child was activity [dangerous “innocent could be construed exposed have to chemicals because been statute!;]” that to meet the elements of this equipment].” and The motion was denied. improper because it could proposed the instruction was parties proceeded The to discuss UJI; yet found in the and that the jury agreed on an instruc- be instructions prevent would from find- negligently permitting child abuse instruction tion on 30-6-l(D) required elements of child ing based on UJI 14- all of the under Section judge suggested abuse. The modifications 605 NMRA that read as follows: cooler; hydrogen peroxide; testimony, pills); and stained explicitly these in- 2. As described in acetone; gallon one gloves. cluded two metal cans of alcohol; bag- separate quart and a of denatured scales; jar bi-layered liq- gies; uid; with a a mason proposed in- 3. The record does not include this mantle; jar heating a mason with a red- struction, contents but we are able to infer its substance; lye; powdery white Red Devil dish parties between the from the discussion dish; bottle; Pyrex cooking plastic sports cof- transcript. filters; iodine; pseu- empty packs blister for fee (but doephedrine ephedrine apparently no or 30-6-l(F), (F), language endangerment” under of Section 30-6-1 and not- withstanding objections, jury was not error for the trial court to instruct renewed that eventually judge’s on the on that basis. The State contends instructed nothing than cre- Instruction No. did more modified version of the statute: inference,” permissive ate “a which did not INSTRUCTION NO. rights violate it was ra- because Evidence that demonstrates that a child tional for the to “make ... the inference knowingly, intentionally negli- or has been instruction, i.e., challenged set forth gently allowed to enter or remain in a allowing methamphet- that a child to vehicle, building prem- motor other inherently dangerous amine house is to the ises contains chemicals being.” child’s health and well The Court of used or intended for use in the manufac- State, Appeals agreed holding with the [may] ture of a controlled substance shall created “an alternative prima-facie be deemed evidence of abuse of nothing definition” of child abuse and the child. prevented being from instructed on Defendant was convicted. basis, particularly given the alterations Trossman, made the trial court. appealed, continuing 26,576, op. mem. at 8. claim that the was flawed and the instruction evidence was insufficient to convict her. Parish, 41-42, N.M. at 118 878 Trossman, 26,576, op. mem. at 2. The 990-91, explained at in P.2d that Court of affirmed the conviction. (1) ways: structions can be defective in three First, Jury Id. at 8. the Court held that erroneous, they facially requiring can be re 4 proper Instruction No. was because it “sim- (2) versal; they vague, in can be which case ply gave an alternative definition of what can the court must “evaluate whether another placing dangerous constitute a child in a part satisfactorily instructions situation. It did not mandate a convic- (3) ambiguity[;]” they cures the and can be Second, ....” tion Id. the Court held that the contradictory, requiring reversal because support evidence was sufficient to Defen- way “there is no to determine whether the dant’s conviction because there was testimo- jury followed the correct or the incorrect ny that her child lived in the that house and case, instruction.” Whatever the the ulti being present around the chemicals was dan- reviewing mate concern of the court must be gerous. Id. at 5-6. We reverse the Court of juror whether “a reasonable would have been Appeals and vacate Defendant’s conviction. 42, confused or misdirected.” Id. 878 P.2d DISCUSSION Jury at 991. To determine whether Instruc I. JURY INSTRUCTION 4NO. COULD tion No. 4 was erroneous under the stan Parish,

HAVE CONFUSED OR MISDIRECT- dards enunciated in we must first ED A REASONABLE JUROR parties resolve conflict between the re 30-6-l(F). garding import of Section argues that In 11-302(A) 4 struction No. “mandated a conviction” provides Rule NMRA that away cases, it presumptions against child abuse because “took an element “in criminal an accused, jury’s from the recognized determination-the element of at common law or creat- statute, having by whether the including statutory provisions defendant’s actions of ed variety prima of lawful materials in her house that certain are facts facie amounted to child abuse.” In guilt, governed by of this other or are this facts added.) argument, (Emphasis Defendant cites to a series of rule.” A presumption Parish, 39, including cases v. State 118 N.M. be instructed to the in a criminal (1994), trial, subject 878 P.2d which 988 concern the failure to certain restrictions consid- 11-302(C). juries opinion. of trial courts to instruct on all ered later this Rule terms, charged. general presumption essential elements of the crime In the most “a responds Legisla The State practice, since the a standardized under which certain gone providing ture “has to the trouble of [the facts basic are held to call for facts] specific type respect definition of a of child abuse uniform treatment with to their ef-

4«7 proof presumed provision incorporates other facts [the feet as “This the constitution- Broun, 2 Kenneth S. McCormick on requirement presumptions facts].” al not be con- (6th ed.2006). § Evidence at 495 At clusive criminal cases if even unrebutted.” glance, first the basic facts under Section 30- Matamoros, 125, 127, v. (1) 6-l(F) appear to both act of allow- (internal (Ct.App.1976) P.2d quo- ing a child “to enter or remain in a motor omitted); see, tation marks and e.g., citation vehicle, building premises or other Jones, 110, 112, State v. contains chemicals and used or (Ct.App.1975) (concluding that an intended in the for use manufacture of a impermissibly mandatory instruction was (2) substance”, controlled and the mens rea requisite knowledge when read “the or “knowingly, intentionally negli- standard or property belief has been stolen is gently.” given These basic facts are a cer- presumed in the case of individual who is (they “prima tain uniform effect are facie possession found in or property control of evidence”) regarding presumed fact of persons stolen from two or separate more on 30-6-l(D). child abuse under Section (internal quotation occasions.” marks omit- ted) added)). A reading (emphasis careful of Sections 30-6- As the United 1(D) (F) requires slightly modify us to Supreme explained, States Court has to sat- conclusion, First, however. we note that isfy process, presump- the mandates of due the acts described are tion “must not undermine the factfinder’s theory consistent one trial, responsibility at based evidence ad- abuse: under 30-6- State, duced to find the ultimate facts 1(D)(1). 30-6-l(D)(2) (3) Sections create County a reasonable doubt.” Court possible the other forms of child abuse when Allen, County Ulster 442 U.S. “tortured, cruelly a child is confined or cruel- (1979). 99 S.Ct. 60 L.Ed.2d 777 What ly punished” “exposed inclemency to the our criminal presumption rules refer to as a weather},]” Second, of the respectively. we properly permissive is more termed infer- observe that the mens rea standard of Sec- ence, purpose guide the of which “is to the 30-6-l(F) (“knowingly, intentionally tion or jury by highlighting propriety drawing the of negligently”) nothing more than a restate- they a factual might inference otherwise be ment of the mens rea standard under Section naturally likely less to draw.” 1 Michael H. 30-6-l(D). considerations, these Given we Graham, Handbook Federal Evidence of presumption hold that the created (6th 303:4, ed.2006); Jones, § at 296 see also 30-6-l(F) only can be understood to allow (“The 88 N.M. at 537 P.2d at 1009 effect allowing the basic fact of a child “to enter or predecessor ... [the of of Rule is to 11-302] vehicle, building remain in a motor or presumptions abolish ‘true’ in criminal premises other that contains chemicals and cases.”). equipment used or intended for use the 11-302(C) guides Rule trial court the manufacture of controlled substance” to assuring jury given that a instruction is serve as evidence of the essential element of permissive effect as a inference: (D)(1), endangerment under Section 30-6-1 theory when this of child abuse is at issue. presumed the existence of a fact Whenever 14-605. See UJI against the accused is submitted to the jury, give the court an shall instruction specifies Rule 11-302 also the jury may the law declares effect that the basic facts under Section 30- (F) regard the basic facts as sufficient evi- regarding presumed 6-1 should have presumed dence of the fact but does not endangerment. jury may, fact of The but is addition, require if to, it to do so. required presumed upon infer the fact facts; words, guilt an presumed fact establishes or is evidence of the basic in other negatives or a de- element of the offense “[t]he court is not authorized to direct the fense, jury jury shall instruct the presumed against to find a fact the court evidence, accused[,]” must, jury all the be if the finds the basic facts. its existence 11-302(C). 11-302(B); proved beyond Rule see also Rule reasonable doubt. Although judge trial made several of puts the mandates 14-5061 NMRA UJI changes language to the well-considered specific form that “shall into a Rule 11-302 instructing the before upon a statuto- state relies given when the instance, “may”- changing “shall” to jury-for element of the prove ry ‘presumption’ entirely Jury No. 4 lacked the Instruction (‘im- inferred an element is crime or when placed by Rule 11-302 and emphasis marked facts.” UJI 14-5061 Use plied’) from certain necessity UJI 14-5061 on statute, reading to our Note. Pursuant find the essential element of 14-5061 based on UJI such an instruction Thus, while we a reasonable doubt. to an in- given addition could have been characterization of disagree with Defendant’s on the essential elements struction mandating Jury No. 4 as a find- Instruction by endangerment4 and should have abuse confu- ing guilt, we believe that the risk of read as follows: equally sion caused this instruction permitted [Defendant] [her Proof that Montano, troubling. 1999- See State placed in a situation which to be child] ¶ 18, NMCA-023, life or health of endangered [her child] aggravated (reversing a conviction for bat- negligently per- is an essential element implied that the tery when a instruction mitting child abuse as defined elsewhere alleged weapon jury need not find that the The is on the these instructions. burden injury could have caused death or serious permitted that [Defendant] state to ambiguous). perceive therefore We which placed to be situation [her child] risk Instruction No. 4: a twofold under endangered the life or health of child be- (1) jury might have understood it to yond a reasonable doubt. standard; supplant the reasonable doubt (2) jury might not have understood that you if find that it has been In this case presumption did not relieve the proved [Defendant] [her child] allowed necessity finding the essential element vehicle, enter or remain in a motor endangerment.5 County, 442 See Ulster building premises other that con- U.S. at 99 S.Ct. 2213. or in- tains chemicals and used can conclude that other tended for use in the manufacture of a Neither substance, you may but are not instructions cured the error. See State v. controlled Crosby, P. required proved to find that it has been (1920) (“If ambiguous were permitted that this instruction [her child] [Defendant] another, capable of placed endangered incomplete, which also be situation different, interpretation ... it of You must and correct [her child]. the life or health making your might subsequent in- consider all of the evidence in then be cured struction____”). Jury Although In Instruction determination. order to find the defen- always 2 that burden guilty negligently permitting “[t]he dant of child No. is abuse, guilt beyond you beyond prove convinced a on the state to a reason- must be doubt[,]” was, it per- explain that the defendant able it did not what reasonable doubt exactly, beyond that placed to be in a situa- must find [her child] mitted correctly endangered per of doubt. If instructed tion which the life health reasonable 14-5061, Jury 4 UJI Instruction No. would [her child]. holdings requiring example, Jury may 4. in Defen- court have violated our For Instruction 3 case, supra. See, UJI dant’s See also 14-605. negligence criminal in child abuse cases. Mascarenas, 2000-NMSC-017, 12, ¶¶ e.g., State v. fact, In there was a third as well. As we risk 16, 230, (holding 129 N.M. 4 P.3d 1221 that above, in Section noted the mens rea standard required negligence because criminal is 6—1(F) merely repetition of the mens rea 30— standard in Section 30-6-1 abuse, incorporating an instruction both child (D), and as such "negligently” disregard” and "reckless the words redundancy hap- would create a needless pened if-as possibility juror confu- resulted "in the distinct in the case bar-it were instructed in necessary sion as to the mens rea for conviction” presumption as well as in the normal elements of (internal quotation marks and mandated reversal addition, by including the child abuse. omitted)). issue and citation this negligently” "knowingly, intentionally or stan- 4, in Instruction No. the trial not before us. dard verbatim

4(,Q analysis: explained “initially, have that order to find the “[i]n evidence is viewed in negligently permitting light most guilty defendant favorable to the verdict. abuse, appellate Then you beyond legal court must make a must be convinced determination of whether permit- reasonable doubt that the defendant in justify finding viewed this manner could placed ted to be in a situation [her child] by any rational trier of fact that each ele endangered which or health [her life ” charged ment the crime has been added). estab (emphasis It is the ultimate child] lished a reasonable doubt.” State v. endangerment proven fact of that must be 2008-NMCA-111, Lopez, 705, 144 N.M. just beyond a doubt-not the basic reasonable (internal quotation marks and facts from which the inference omitted). “indulge permissi citation We all drawn. We must vacate Defendant’s convic- upholding ble inferences in favor of the ver possibility tion where there was a Apodaca, dict.” State v. finding have without could convicted her (1994). Also, reviewing 760 charged each of the of the crime elements evidence, such cases for sufficient we must Parish, beyond a reasonable doubt. See “parse[] and view[] the 44-46, (reversing N.M. at 878 P.2d at 993-95 light probative verdict value of a conviction when instructions failed to evidence,” pieces individual but rather place proving on the State the burden of “view the evidence as a whole.” State v. self-defense). the defendant did not act Graham, 2005-NMSC-004, ¶13, 137 N.M. 197, 109 P.3d 285. II. THERE WAS INSUFFICIENT EVI- DENCE TO SUPPORT DEFEN- matter, As an initial we must settle DANT’S CONVICTION parties the debate between the over whether sufficiency the evidence this case Defendant claims that the evidence decided, urges, should be as under presented at trial was insufficient to or, endangerment traditional standards her conviction because did not show that argues, solely the State with reference to endangered, her child was since he “was not 30-6-l(F). We concede that in the residence at the time that manu- has, face, position State’s on its a certain facture of controlled substance took 30-6-l(F) appeal. Section is framed in argues place.” Defendant that our review “prima general terms of facie evidence.” In employ must the criterion of legal parlance, “prima facie evidence” is precedents, set forth our child abuse a fact “[e]videnee will establish or sus- endangered “exposed children must be to a judgment contradictory tain a unless evi- substantial risk to their health.” produced.” Dictionary dence is Black’s Law 2002-NMCA-100, ¶21, Trujillo, (8th ed.2004); Matamoros, see also argues 53 P.3d 909. The State N.M. at 547 P.2d at 1169. The Court of 30-6-l(F) creates its own substantive Appeals applied provision to a definition standard that obviates the need to determine to in similar Section In re Shan- whether there was sufficient evidence of en- ¶ L., 12, 89, 2001-NMCA-005, eace dangerment, by precedents. as our defined L., Shaneace the Court Moreover, argues the State that even under reviewed the defendant’s conviction under standard, endangerment the estab- (1967) (“Use 30-20-12 NMSA presence in lished the child’s the house and intimidate, threaten, telephone terrify, to dangers that the would have resulted from offend”) harass, annoy sufficiency for being presence in the of the seized chemicals. 30-20-12(B), light in the evidence of Section Appeals The Court of concluded the obscene, which that “[t]he use of could infer that Defendant’s child was endan- profane language making lewd or or the aof gered dangerous because were chemicals prima threat or statement ... shall facie stored in the house where he lived. Tross- intimidate, terrify, evidence of intent to man, 26,576, op. mem. at 5-6. threaten, harass, annoy or offend.” 2001- ¶ NMCA-005, bar, To decide whether there was 12. Unlike the case at in evidence, L., following given sufficient conduct the no on the we Shaneace instruction was above, requirement this as- Appeals As discussed The Court of provision. of this basis 30-20-12(B) not “under- Legis- presumption does was the sures that Section held trial, difficulty responsibility in at mine the factfinder’s way mitigating “the lature’s State, to statutory Id. evidence adduced the intent[.]” based on proving requisite beyond a reasonable the ultimate facts such, concluded find As Court County, 442 at kill U.S. to doubt.” Ulster “testimony [the that Child threatened evidentiary presumption An shortly placing after the S.Ct. 2213. baby and her victim] change burden to estab- does not the State’s telephone call is sufficient with- elements of the crime court could infer lish the essential the children’s from which Ac- presumption itself. annoy or harass out reference to the had the intent that Child review, short, purposes of our cordingly, for the Id. In the Court viewed victim].” [the have been sufficient to provision as creat- the evidence must “prima facie evidence” 30-6- prove endangerment in under Section evidentiary for use re- ing standard 1(D)(1). If we evidence. viewing claims of insufficient reasoning to the case apply were to reason, For this to the extent bar, that there was sufficient we would hold statutory provi- suggests L. that a Shaneace endangerment if a rational evidence of 30-6-l(F), making a basic sion like Section the basic described could have found facts fact, prima presumed fact facie evidence of a beyond a reasonable deciding sufficiency of is a standard for permit finding of en- This would doubt. evidence, it is overruled. when, dangerment example, for a child was quarrel no with the ultimate outcome of have con- to enter and remain house allowed certainly Lthere sufficient Shaneace parent planned taining iodine that the child’s ease, in that evidence of intent because production, methamphetamine even to use natural presumption, because of the but qualify would not as endan- if the situation threatening from behav- inference flows precedents. germent under our See, annoy ior to the intent to or harass. Silva, 2008-NMSC-051, adopt e.g., We cannot this reason State v. 6—1(F) (observing that interpret in accor ing. To Section 30— subjective always bring L. into and is almost dance with Shaneace would us “[i]ntent case, specific presump inferred from other facts conflict with our rule (inter- 11-302(B) requires rarely that: established direct evidence” tions. Rule omitted)). quotation marks and citation nal guilt presumed fact establishes When negatives offense or or is an element of the Viewing the evidence as whole defense, may ques- the court submit the standard, we are under the guilt or of the existence of tion compelled agree if, if, jury, but presumed fact to the evidence to there was insufficient juror as a reasonable on the evidence conviction. have held that creat her We whole, including the evidence of the basic by endanger ing the crime of child abuse facts, presumed fact guilt could find or the ment, Legislature did not intend to “the beyond a reasonable doubt. possibili creating criminalize conduct a mere that one Legislature has directed When remote, may ty, however that harm result to prima or more basic facts be considered ¶ (in Graham, 2005-NMSC-004, 9 a child.” fact, presumed of a the trial facie evidence quotation marks and citations omit ternal sufficiency of the evi- court must test ted). presumed before the dence of the fact making degree In a third felo- presumed instructed that the fact this offense to con- ny, legislature or facts. the intended address may be inferred from the basic fact 11-302(B) consequences case, potentially serious In Rule re- duct with The cou- that to the life or health of a child. quires that the trial court be satisfied “health” pling in the statute of the word presented has been of the sufficient evidence suggests “life” to us that the endangerment giving an in- with the word child’s before legislature intended to address situations in accordance with UJI 14-5061. struction 12, exposed August a in which children are to substan- 2004 and under conditions that endangered tial risk to their health. could have his life or health. supporting jury’s The evidence the verdict is ¶ 21; 2002-NMCA-100, Trujillo, see also as follows. A social worker testified that (requiring 14-603 NMRA a UJI “substantial Defendant told her that the child “lived with child). and foreseeable risk” to the In State Chapparal, at the house in [Defendant]” but ¶ Jensen, 2006-NMSC-045, 10, v. 140 N.M. provide specific could no dates that the child 416, 178, explained “[p]roof 143 P.3d house, present at was the and in fact stated endangerment is sufficient for a con- present night child was not places if viction a defendant a child within police before the raid. A officer testified danger physically the zone of and close to an that he had appeared seen what to be a inherently dangerous situation.” room in child’s the house but conceded that Applying the substantial and foresee- personal knowledge he had no about who standard, able risk our courts have found in lived the room or when he or she had been sufficient evidence of when present. The fact mere that the child nor- a defendant invited minor to drink alco- mally resided in the home is insufficient. hol, pornography, possibly view and eat taint- Legislature requires The presence, actual ¶¶ house, 15-16; filthy ed food in a id. when by evidenced the basic facts detailed in Sec- marijuana, a controlled substance determined (F)-that tion 30-6-1 the child be allowed to hazardous, by Legislature to be had been building enter or remain in the at the rele- left the defendant in his house in locations Similarly, every vant time. New Mexico case playing just prior where children had been to premise cited above has as its that the child crib, Graham, discovery baby’s its and in a actually present dangerous was when the ¶¶ 2005-NMSC-004, 10-12; when the defen- situation occurred. dangerous dant drove drunk in a and manner car, in with her children v. State Castañe- addition, In require our cases a da, 2001-NMCA-052, 22, 679, 130 N.M. Here, greater showing of risk of harm. 368; P.3d pointed and when the defendant a there was day on the of the gun at a woman and threatened to kill her raid, the house contained numerous items her, daughter while her stood behind State v. likely methamphet were most used for ¶¶ McGruder, 1997-NMSC-023, 37-38, 123 However, production amine in the house. N.M. 940 P.2d 150. Our courts have regarding there was no evidence when found insufficient evidence of child abuse house, the items had been taken into the endangerment when the defendant had al- matches, possible exception of some in lowed stroller to roll front of him pseudoephedrine, ephedrine, and which testi over, his reach and tipped injuring the mony implied may have been taken into the child, 2003-NMCA-024, Massengill, thirty-six house about hours before the raid. ¶ 47, 354; 62 P.3d when the methamphetamine Police testified that some defendant assaulted the child’s mother while quickly place labs can be moved from house, part the child in a was different cannot, place and that others but did not ¶¶ 2002-NMCA-100, 19-20, Trujillo, 132 specify category into which in the lab 909; N.M. 53 P.3d and when the defen- house fell. Witnesses testified that some of dant had left his child a car with the materials found the house could be mother, child’s ten to fifteen feet from the burns, dangerous: lye iodine could result in transaction, drug Roy- defendant’s State v. carcinogen, organic solvents like (Ct. bal, dangerous. acetone could be there App.1992). clearly require These cases legal, was no evidence that of these presence State to child’s situa- actually household chemicals were stored probable tion where harm was both and suffi- endanger manner that could ciently grave justify a criminal sanction. ample There house. evidence that the ease, process creating methamphetamine we are concerned with is ex hazardous, the lack pres- tremely releasing gases of evidence that establishes the toxic However, creating potential ence of the child in the home on or about the for fires. before the child was eighteen twelve to hours regarding when or was no evidence there specific evidence hospital, to the but no had taken production methamphetamine how often the vio- Indeed, at the scene when testimony placed Defendant in the house. occurred by another. We be- perpetrated was only six to lence process takes suggested that injury that, that, that an just as fact “[t]he be- lieve was evidence eight hours. There prove this defen- not sufficient to in metham- occurred is hazards inherent cause of the bar, id., in at the guilty},]” the case the likelihood that dant production and phetamine activity probably a hazardous likelihood that processing in metham- used an entire house not contaminated, in the house at some time is police place took could become phetamine guilty of allow- to to enter sufficient fully contained suits typically use present while it took ing her child to be methamphetamine labs. containing houses placed place. There was no the there was no evidence any at house under actually the contaminat- Defendant’s Chapparal in was house haz- suggested methamphet- hazardous conditions Finally, note that no ed. we ongoing in must have been ardous conditions found in the house. amine was jury judged way that the could have such Viewing the evidence as child must have en- probability the whole, not suffi that there was we conclude Similarly, point. at some countered them support finding to cient evidence the testimony that indicated there was no if concede that by endangerment. We abuse actually contaminated or chemi- house was that Defen produced had evidence the State way the in such a cals were stored present to be allowed her child dant had any at time would have been presence child’s pro methamphetamine during process jury dangerous. Even if the could have con- duction, dangerous chemi or had stored such point that at some over the months cluded ways in that could have harmed her cals arrest, child was prior to the Defendant’s inclined, child, highly light in we would likely endangered by Defen- to have been above, to conclude that precedents cited activities, it would not have been enti- dant’s placed that she was sufficient evidence there convict; jury instructions tled to life or health at risk. Gra her child’s Cf. occurring “on charged Defendant for conduct ¶¶ ham, 2005-NMSC-004, (finding 10-12 suf simply August 2004.” The State or about when ficient evidence any present not evidence to allow did play in children to defendant had allowed required specific inferences to draw marijuana vicinity marijuana and endangerment. these rea- for it to find For crib). in In the case before found a child’s sons, find that there was insufficient evi- us, however, any provide to the State failed conviction of dence that Defendant allowed evidence whatsoever child abuse. present in the house under her child to be Although a hazardous conditions. CONCLUSION conclu certainly to draw reasonable entitled Appeals’ opinion re- The Court of pro evidence from the circumstantial sions was instructed versed. Because ¶ 10, trial, id. it must not be left duced see improperly and because there was insuffi- proof. See speculate the absence Defendant, her con- evidence to convict cient 2008-NMSC-051, Silva, (reversing a viction is vacated. tampering with evidence when conviction IT IS SO ORDERED. police had failed to showed that the State weapon previously that was find SERNA, PATRICIO M. WE CONCUR: produce possession, defendant’s and did BOSSON, and CHARLES W. RICHARD C. that defendant had acted DANIELS, Justices. weapon). way destroy the to hide or Leal, 506, 510, 723 P.2d MAES, (specially concurring). Justice the Court of (Ct.App.1986), MAES, concurring). (specially Justice negligently per a conviction for overturned I majority opinion. injuries I concur when the child’s mitting child abuse however, I dis- separately, because within write at Defendant’s residence occurred agree majority mere fact “[t]he normally

that the child resided the home is prove per-

insufficient” to that the child was

mitted “to enter or remain” the home (F)

pursuant 30-6-1 NMSA 2005).

(2004, prior to amendments in I be- that, contrary,

lieve absent evidence to the ten-year-old

is reasonable to infer that a sleeps primary and,

child in his residence

therefore, present the evidence in the case prove per-

was sufficient to that Defendant

mitted child to enter or remain in the night August

home on the 2004.

Nonetheless, for explained the reasons in the

majority opinion, the evidence was insuffi- prove that equip-

cient to the chemicals or subsequently

ment found the home on the

morning August posed danger a risk of approximately

to the child’s life or health two

days earlier, night August on the 10. As

aptly majority, stated “in the case at

bar, activity the likelihood that a hazardous

probably place in took the house at some

time is not sufficient to

guilty allowing present her child to be place.” Accordingly,

while it took the evi-

dence was insufficient to negligently permitting

conviction of (D). contrary

abuse 30-6-1

2009-NMSC-036 Skofield,

Susan BISHOP and Mark Representatives capacities

Class in their Representatives

as Personal of the Es- Skofield,

tate of Richard H. Plaintiffs- Cross-Respondents,

Petitioners and

EVANGELICAL GOOD SAMARITAN SO-

CIETY, foreign corporation, d/b/a

Manzano Del Sol Good Samaritan Vil-

lage, Defendant-Respondent and Cross-

Petitioner. 30,899.

Supreme Court of New Mexico.

June

Case Details

Case Name: State v. Trossman

Court Name: New Mexico Supreme Court

Date Published: Jun 22, 2009

Citation: 212 P.3d 350

Docket Number: 31,010

Court Abbreviation: N.M.