N.M. Stat. § 30-6-1

A. As used in this section:

       (1)    "child" means a person who is less than eighteen years of age;

       (2)    "neglect" means that a child is without proper parental care and control of
subsistence, education, medical or other care or control necessary for the child's well-
being because of the faults or habits of the child's parents, guardian or custodian or
their neglect or refusal, when able to do so, to provide them; and

       (3)    "negligently" refers to criminal negligence and means that a person knew
or should have known of the danger involved and acted with a reckless disregard for the
safety or health of the child.

    B. Abandonment of a child consists of the parent, guardian or custodian of a child
intentionally leaving or abandoning the child under circumstances whereby the child
may or does suffer neglect. A person who commits abandonment of a child is guilty of a
misdemeanor, unless the abandonment results in the child's death or great bodily harm,
in which case the person is guilty of a second degree felony.

   C. A parent, guardian or custodian who leaves an infant less than ninety days old in
compliance with the Safe Haven for Infants Act [Chapter 24, Article 22 NMSA 1978]
shall not be prosecuted for abandonment of a child.
    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;

       (2)    tortured, cruelly confined or cruelly punished; or

       (3)    exposed to the inclemency of the weather.

   E. A person who commits abuse of a child that does not result in the child's death or
great bodily harm is, for a first offense, guilty of a third degree felony and for second and
subsequent offenses is guilty of a second degree felony. If the abuse results in great
bodily harm to the child, the person is guilty of a first degree felony.

    F. A person who commits negligent abuse of a child that results in the death of the
child is guilty of a first degree felony.

   G. A person who commits intentional abuse of a child twelve to eighteen years of
age that results in the death of the child is guilty of a first degree felony.

    H. A person who commits intentional abuse of a child less than twelve years of age
that results in the death of the child is guilty of a first degree felony resulting in the death
of a child.

   I. 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.

   J. Evidence that demonstrates that a child has been knowingly and intentionally
exposed to the use of methamphetamine shall be deemed prima facie evidence of
abuse of the child.

   K. A person who leaves an infant less than ninety days old at a hospital may be
prosecuted for abuse of the infant for actions of the person occurring before the infant
was left at the hospital.

History: 1953 Comp., § 40A-6-1, enacted by Laws 1973, ch. 360, § 10; 1977, ch. 131,
§ 1; 1978, ch. 103, § 1; 1984, ch. 77, § 1; 1984, ch. 92, § 5; 1989, ch. 351, § 1; 1997,
ch. 163, § 1; 2001, ch. 31, § 9; 2001, ch. 132, § 9; 2004, ch. 10, § 1; 2004, ch. 11, § 1;
2005, ch. 59, § 1; 2009, ch. 259, § 1.

                                       ANNOTATIONS

Cross reference. — For jury instructions to be given in abandonment and abuse or
neglect of a child, see UJI 14-606 to 14-607 NMRA.
The 2009 amendment, effective June 19, 2009, added Subsection J.

The 2005 amendment, effective June 17, 2005, added Subsections F, G, and H to
define negligent abuse of a child that results in death and the intentional abuse of a
child twelve to eighteen years that results in death as first degree felonies and the
intentional abuse of a child less that twelve years that results in death as a first degree
felony resulting in the death of a child.

The 2004 amendment, effective July 1, 2004, added a new Subsection F; designated
the last paragraph of Subsection D as a new Subsection E; and redesignated former
Subsection F as Subsection G.

Meaning of "negligently". — The criminal negligence articulated in 30-6-1(A)(3)
NMSA 1978 means "reckless disregard" and what has been called "criminally negligent
child abuse" should be labeled "reckless child abuse" without any reference to
negligence. The jury should be instructed with this terminology alone. State v. Consaul,
2014-NMSC-030, overruling in part State v. Schoonmaker, 2008-NMSC-010, 143 N.M.
373, 176 P.3d 1105.

Sufficient evidence. — Where defendant drove a pickup toward a group of children
who were trick-or-treating on Halloween; the chaperone pushed the children out of the
way but was struck and killed; the group was visible to motorists; and defendant altered
defendant’s course and drove toward the group and increased defendant’s speed,
defendant’s conviction of intentional child abuse by endangerment was supported by
substantial evidence. State v. Melendrez, 2014-NMCA-062, cert. denied, 2014-
NMCERT-006.

Sufficient evidence of child abuse. — Where defendant was charged with criminal
sexual penetration of a minor and child abuse, and where the state relied on testimony
elicited from the victim that defendant grabbed her forcefully by the arm, threw her onto
the ground, and pushed and kicked her when she stood up, that she was fourteen years
old and that these events occurred in New Mexico two years earlier, there was sufficient
evidence to prove beyond a reasonable doubt that defendant intentionally or with
reckless disregard and without justification caused the victim to be placed in a situation
which endangered her life or health. State v. Garcia, 2019-NMCA-056, cert. denied.

Circumstantial evidence. — A properly instructed jury may be justified in returning a
guilty verdict based primarily on evidence that the defendant had the best opportunity to
inflict the injury. State v. Sheldon, 1990-NMCA-039, 110 N.M. 28, 791 P.2d 479, cert.
denied, 110 N.M. 44, 791 P.2d 798, and cert. denied, 498 U.S. 969, 111 S. Ct. 435
(1990).

Evidence insufficient. — Mere proximity to a dangerous situation is insufficient to
support a conviction for child abuse by endangerment. State v. Trujillo, 2002-NMCA-
100, 132 N.M. 649, 53 P.3d 909, cert. denied, 132 N.M. 674, 54 P.3d 78.
Attempt. — There is such a crime as attempt to commit child abuse when the theory of
the case is intentional child abuse. State v. Herrera, 2001-NMCA-073, 131 N.M. 22, 33
P.3d 22, cert. denied, 131 N.M. 64, 33 P.3d 284.

It was fundamental error to allow defendant to plead guilty to attempt to permit
reckless child abuse, a nonexistent crime. — Where defendant was charged with
one count of child abuse-negligently cause (no death or great bodily harm), and where
defendant subsequently entered a conditional no contest plea to attempt to commit a
felony, to wit: child abuse-negligently permit (no death or great bodily harm), contrary to
NMSA 1978, § 30-6-1(D), and where defendant argued on appeal that an attempt to
negligently permit child abuse is a nonexistent crime and as such was invalid, the
district court erred in accepting defendant’s plea, because attempt to cause or permit
reckless child abuse is a nonexistent crime. It is well established that one cannot
attempt to commit a reckless conduct crime where the requisite mental state lacks an
element of specific intent. A district court’s acceptance of a guilty or no contest plea to
a nonexistent crime is a jurisdictional error that cannot be waived by a plea agreement,
and can be raised for the first time on appeal. State v. Yazzie, 2025-NMSC-027.

Criminal negligence. — The mens rea element of negligence in the child abuse statute
requires a showing of criminal negligence instead of ordinary civil negligence. To satisfy
the element of negligence in Section 30-6-1 NMSA 1978 requires proof that the
defendant knew or should have known of the danger involved and acted with a reckless
disregard for the safety or health of the child. Santillanes v. State, 1993-NMSC-012, 115
N.M. 215, 849 P.2d 358.

Failure to instruct on the legal definition of "reckless disregard" as the applicable
standard or criminal negligence was fundamental error. State v. Mascarenas, 2000-
NMSC-017, 129 N.M. 230, 4 P.3d 1221.

Jury instruction, containing and/or connector was confusing and allowed the jury
to make a finding of guilty on a legally inadequate basis. — Where defendants were
each charged with one count of reckless child abuse by endangerment resulting in
death and one count of reckless child abuse by endangerment resulting in great bodily
harm, when defendants, operators of a licensed daycare center, left two one-year-old
children unattended in a van outside the day care center for over two and one-half
hours when the outdoor temperature was 91 degrees following a trip to a park, and
where, at trial, the district court instructed the jury on reckless child abuse using the
phrase "and/or" in instructions that defined the essential elements of reckless child
abuse, the jury was erroneously instructed, because the district court gave the jury
confusing and misleading instructions that failed to provide members of the jury with a
clear and correct understanding of what it is they were to decide; the presence of and/or
in the conduct element of the essential-elements instructions confused and misdirected
the jury and allowed it to make a finding of guilty on a legally inadequate basis. State v.
Taylor, 2024-NMSC-011, rev'g 2021-NMCA-033, 493 P.3d 463.
Sufficient evidence to support convictions for reckless child abuse where
defendants' actions showed a reckless disregard for a substantial risk of serious
harm. — Where defendants' convictions for reckless child abuse resulting in death and
reckless child abuse resulting in great bodily harm were reversed, the evidence
presented at trial was sufficient to support the convictions and allow a retrial where the
evidence established that defendants, operators of a licensed daycare center, left two
one-year-old children unattended in a van outside the daycare for over two and one-half
hours when the outdoor temperature was 91 degrees following a trip to a park, and
where the evidence included admissions by defendants that they failed to undertake
known and reliable safety precautions, such as conducting a headcount or a complete
visual inspection of the van upon the children's return to the daycare, in a situation
admittedly known to be of high risk. The reckless element of child abuse in New Mexico
is properly evaluated under an objective test, and given the objective indicia of
culpability, while defendants were not subjectively aware that they left the victims
stranded inside the vehicle, defendants were well aware of the significant danger to life
and safety created by leaving children in a closed vehicle on a hot day, and defendants
failed to take routine and familiar precautionary measures to ensure that they avoided
such a dangerous occurrence. Under the jury instructions given, a reasonable jury
could find that defendants' inactions showed a reckless disregard for a substantial and
unjustifiable risk of serious harm to the safety or health of the victims. State v. Taylor,
2024-NMSC-011, rev'g 2021-NMCA-033, 493 P.3d 463.

No specific intent to disregard one's obligations is involved in the concept of
conscious disregard. — The critical inquiry is whether defendants' acts or omissions,
irrespective of whether they were knowingly committed, caused or permitted a child to
be placed in a situation that may endanger the child's life or health or to be exposed to
the inclemency of the weather, and a defendant acts recklessly within the meaning of §
30-6-1(D) NMSA 1978, when he or she disregards a substantial and justifiable risk of
serious harm to the safety or health of a child. No specific intent to disregard one's
obligations is involved in the concept of conscious disregard; the only intent involved is
purposely engaging in conduct which implies a conscious disregard of one's obligations.
State v. Taylor, 2021-NMCA-033, 493 P.3d 463, rev'd by 2024-NMSC-011.

Sufficient evidence to support convictions for reckless child abuse. — Where
defendants, owners of a daycare, were each convicted of one count of reckless child
abuse resulting in great bodily harm and one count of reckless child abuse resulting in
death after failing to remove two one-year-old children under their supervision from a
hot SUV following a trip to a park, resulting in the death of one child and life-threatening
injuries to the other child, and where defendants argued that there was insufficient
evidence to support their convictions for reckless child abuse because the state failed to
show that the defendants acted with a reckless disregard for the safety of the victims,
that they did not know they left the victims unattended in the SUV, and therefore, they
did not knowingly act or fail to act, there was sufficient evidence to support defendants'
convictions because defendants knew the victims were originally in the SUV,
defendants created the risk by failing to take the victims out of the SUV, and defendants
disregarded that risk by leaving them there. Moreover, defendants' conduct while caring
for the victims on the day in question, failing to follow CYFD policies on which they had
been trained and failing to follow their own internal accountability procedures,
demonstrated a conscious disregard for the safety of the victims. State v. Taylor, 2021-
NMCA-033, 493 P.3d 463, rev'd by 2024-NMSC-011.

District court did not err in denying separate instruction on the definition of
"reckless disregard." — Where defendants, owners of a daycare, were each
convicted of one count of reckless child abuse resulting in great bodily harm and one
count of reckless child abuse resulting in death after failing to remove two one-year-old
children under their supervision from a hot SUV following a trip to a park, resulting in the
death of one child and life-threatening injuries to the other child, and where, at trial,
defendants requested, in addition to the elements instruction, that the district court
instruct the jury on the definition of reckless disregard as set forth in UJI 14-133 NMRA,
the district court did not err in denying defendants' proposed jury instruction because the
elements instruction, UJI 14-622 NMRA, already defined the mens rea necessary to
convict defendants for reckless child abuse. State v. Taylor, 2021-NMCA-033, 493 P.3d
463, rev'd by 2024-NMSC-011.

District court did not err in denying separate instruction on the definition of
"accidental conduct." — Where defendants, owners of a daycare, were each
convicted of one count of reckless child abuse resulting in great bodily harm and one
count of reckless child abuse resulting in death after failing to remove two one-year-old
children under their supervision from a hot SUV following a trip to a park, resulting in the
death of one child and life-threatening injuries to the other child, and where, at trial,
defendants requested, in addition to the elements instruction, that the district court
instruct the jury on the definition of "accidental conduct," claiming that the death of one
child and the great bodily harm of the other child that occurred while in the care of
defendants was accidental, the district court did not err in denying defendants' proposed
instruction because the elements instructions tracked the language of the uniform jury
instructions for reckless child abuse, UJI 14-615 NMRA and UJI 14-622 NMRA, and
therefore accurately conveyed the law to the jury, making the proposed "accidental
conduct" instruction unnecessary. State v. Taylor, 2021-NMCA-033, 493 P.3d 463,
rev'd by 2024-NMSC-011.

Penalty. — The 2005 amendments to this section and their history show that the
legislature intended the phrase "first degree felony resulting in the death of a child" to
designate an entirely different level of noncapital offense — one that results in life in
prison which is unusual, if not unprecedented, for an offense other than first degree
murder. The result is a new level of offense and a new prison sentence that is at least
66% longer than the 18-year sentence for any other first degree felony. Garcia v. State,
2010-NMSC-023, 148 N.M. 414, 237 P.3d 716.

Double jeopardy. — Vehicular homicide is a lesser offense than child abuse resulting
in death. State v. Santillanes, 2001-NMSC-018, 130 N.M. 464, 27 P.3d 456.
The child abuse statute is neither preempted by the reckless driving statute, specifically,
nor by the Motor Vehicle Code, generally. State v. Guilez, 2000-NMSC-020, 129 N.M.
240, 4 P.3d 1231.

General/specific statute rule was inapplicable where facts supported both a
charge of DWI with a minor and child abuse by endangerment. — In consolidated
cases, where defendants were driving while intoxicated with minors in their vehicles,
and where both defendants were charged with child abuse by endangerment, but where
both defendants moved to dismiss those charges, arguing that NMSA 1978, § 66-8-
102.5 (DWI with a minor) displaced the prosecutor's charging discretion under the
general/specific statute rule, the district court improperly limited prosecutorial charging
discretion by dismissing the child abuse by endangerment charges, because while the
child abuse and DWI with a minor statute share similar purposes and histories, there
are differences in the conduct each criminalizes, and the plain language of § 66-8-102.5
provides no indication that the legislature intended it to always be charged by a
prosecutor instead of child abuse by endangerment. State v. Saltwater, 2024-NMCA-
018, cert. denied.

Child abuse of fetus. — Infliction of injuries to a fetus, which resulted in the death of a
child, is insufficient to support a charge of child abuse resulting in death under Section
30-6-1 NMSA 1978. State v. Mondragon, 2008-NMCA-157, 145 N.M. 574, 203 P.3d
105.

Any person construed. — The statute for negligent child abuse resulting in death is
not restricted to persons having a special relationship with the child, such as parent or
guardian. It applied to defendant who was 18 years of age and who shot the victim, who
was 14 years of age, and defendant's friend. State v. Reed, 2005-NMSC-031, 138 N.M.
365, 120 P.3d 447.

There is no reason to believe that the legislature intended that the protection of this
section be limited only to the children of abusive parents. The defendant who drove a
car whose occupants threw beer bottles and rammed a truck in which a child was riding
may be guilty of child abuse. State v. Lujan, 1985-NMCA-111, 103 N.M. 667, 712 P.2d
13, cert. denied, 103 N.M. 740, 713 P.2d 556 (1986).

This section establishes criminal liability for causing or permitting child abuse,
regardless of the defendant's relationship to the victim. — Where defendant was
charged with permitting abuse of a child based on facts that she knew that her daughter
was abusing the four-year old child but did not report the abuse, did not seek medical
attention for the child, and did not take any other meaningful action, and where
defendant argued that the district court provided the jury with an incomplete instruction
because the instruction submitted to the jury, patterned after 14-612 NMRA, omitted the
terms "parent" and "guardian" which are listed under element 4 of the uniform jury
instruction, asserting that the terms would have informed the jury of what it meant to
have "accepted responsibility" for the child, and that the omission materially altered the
instruction by creating ambiguity in the phrase "accepted responsibility," the district
court did not err in submitting the proffered instruction, because 30-6-1(D) NMSA 1978
establishes criminal liability for causing or permitting child abuse, regardless of the
defendant's relationship with the victim. Section 30-6-1 NMSA 1978 applies to any
person who causes or permits a child to be placed in a situation that endangers the
child's life. State v. Ferran-Sandoval, 2024-NMCA-066, cert. denied.

"Leaving" and "abandoning" defined. — The New Mexico legislature intended
"leaving" in 30-6-1(B) NMSA to create an independent theory of criminal culpability
distinct from "abandoning". The definition of "leave" that is consistent with the intent of
the legislation is to take leave of or withdraw oneself from, whether temporarily or
permanently, and the definition of "abandon" that is consistent with the intent of the
legislation is to forsake or desert in spite of an allegiance, duty, or responsibility, or
withdraw one’s protection, support, or help from. Section 30-6-1(B) NMSA 1978
criminalizes either intentionally leaving, even temporarily, or intentionally abandoning a
child, but only under circumstances where doing so exposes the child to a risk of harm.
State v. Stephenson, 2017-NMSC-002, aff’g 2015-NMCA-038.

Insufficient evidence to support abandonment of a child. — Where defendant was
convicted of abandonment of a child resulting in great bodily harm, the evidence
presented at trial that defendant locked her two-year-old child in his bedroom to go to
sleep for the night, but that defendant remained in the apartment, and where the child
was found the following morning pinned between the dresser and the crossbar of his
toddler bed, was insufficient to prove that defendant intentionally left her child at a time
and under circumstances when the child’s well-being was at risk of harm. State v.
Stephenson, 2017-NMSC-002, aff’g 2015-NMCA-038.

Abandonment construed. — To be convicted of criminal child abandonment, evidence
of abandonment must demonstrate that a parent, guardian or custodian left the child
without an intent to return. State v. Stephenson, 2015-NMCA-038, cert granted, 2015-
NMCERT-001.

Insufficient evidence of criminal child abandonment. — Where parent locked a child
in his bedroom and then ignored the child’s cries from another room, and where there
was no evidence that the parent intended to leave the child in his bedroom without an
intent to return, there was insufficient evidence to support a conviction for criminal child
abandonment. State v. Stephenson, 2015-NMCA-038, cert granted, 2015-NMCERT-
001.

Sufficient evidence of child abandonment. — Where defendant was charged with
shooting at a dwelling, aggravated assault with a deadly weapon and abandonment of a
child, after police officers responded to reports of gunshots and found defendant
intoxicated and in possession of a handgun, and where, upon arrest, defendant
informed officers that his five-year old son was alone and asleep at his house, there
was sufficient evidence to support defendant’s conviction for abandonment of a child
where the state presented evidence showing that defendant left his five-year-old alone
while defendant walked through the neighborhood intoxicated, armed, and intending to
cause criminal mischief, and therefore put the child at risk of harm, as the child was
alone in defendant’s home with no adult present. State v. Johnson, 2026-NMCA-036,
cert. denied.

Ordinary negligence not punishable. — A conviction for child abuse by
endangerment cannot be based on a mere possibility, however remote, that harm may
result from a defendant's acts. The legislature intended to punish conduct that created a
reasonable probability or possibility that a child will be endangered. The child abuse
statute contains no indication that the legislature intended felony punishment to attach
to ordinary negligent conduct. State v. Massengill, 2003-NMCA-024, 133 N.M. 263, 62
P.3d 354, cert. denied, 133 N.M. 126, 61 P.3d 835.

Susceptibility of child. — Although a child's susceptibility to harm is a factor a jury
might consider when determining whether a defendant has committed child abuse, this
factor alone is insufficient for a reviewing court to rule as a matter of law that defendant
did not cause the child to be in a situation that might endanger his health. Viewing the
evidence in the light most favorable to the prosecution, a rational trier of fact could have
found that the circumstances as a whole satisfied the essential elements of the crime of
child abuse beyond a reasonable doubt. State v. Jensen, 2006-NMSC-045, 140 N.M.
416, 143 P.3d 178.

Abuse of a child encompasses abuse by endangerment that results in emotional
injury. — The crime of child abuse by endangerment may be based on evidence of a
truly significant risk of serious harm to a child's emotional health, just as when a child's
physical health is endangered. State v. Galindo, 2018-NMSC-021.

Where defendant was convicted of child abuse not resulting in death or great bodily
harm to his thirteen-year-old daughter (child), and where the state presented evidence
that on the night defendant's infant daughter died, the child found defendant kneeling on
the floor, holding the baby's "purple, bluish" body and calling the child to come and help
him revive the baby, that defendant persisted in his frantic attempts to revive the baby,
which included putting the baby's naked body in the kitchen sink and rubbing ice on her,
performing CPR on her "very hard", biting her, splashing water on her in the shower and
rubbing perfume on her body, and that defendant refused to let the child go get help
from relatives who lived nearby, and where the child testified that the she felt shocked
and scared, and that the baby's death made her feel "dead inside", defendant's conduct
was sufficient to show that defendant exposed the child to a truly significant risk of
serious emotional harm, because in light of the other evidence that defendant sexually
assaulted and violently abused the baby, resulting in her death, defendant's conduct
drew the child into the aftermath of defendant's crimes against the baby. The jury
reasonably could have found that defendant endangered the child's emotional health by
compelling her to witness and participate in the further abuse of the baby's lifeless body,
as defendant tried to undo the effects of what he had already done to the baby. State v.
Galindo, 2018-NMSC-021.
Insufficient evidence of recklessly permitting child abuse. — Where defendant was
convicted of child abuse not resulting in death or great bodily harm to his thirteen-year-
old daughter (child) based on three alternative theories of abuse, including intentionally
causing the child to be placed in a situation that endangered her life or health,
recklessly causing the child to be placed in a situation that endangered her life or
health, and recklessly permitting the child to be placed in a situation that endangered
her life or health, defendant's conviction for recklessly permitting the child to be placed
in a situation that endangered her life or health was not supported by sufficient
evidence, because there was no evidence that anyone other than defendant inflicted the
abuse against the child, and "permitting" child abuse refers to the passive act of failing
to prevent someone else, a third person, from inflicting the abuse. State v. Galindo,
2018-NMSC-021.

Sufficient evidence of child abuse resulting in death. — Where defendant was
convicted of child abuse resulting in the death of his infant daughter, and where the
state presented evidence that the baby died from blunt force trauma to her head, that
the baby also suffered injuries to her groin area, and that the baby showed no signs of
choking, and where defendant claimed that there was insufficient evidence that he
acted intentionally and without justification because the evidence showed not that he
meant to harm the baby, but that he was attempting to shock her into consciousness
after he found her not breathing, the jury was free to reject defendant's version of events
especially where there were inconsistencies between defendant's explanation of the
baby's injuries and the medical evidence; the jury could have reasonably concluded that
defendant acted intentionally and without justification. State v. Galindo, 2018-NMSC-
021.

Sufficient evidence supported the jury's determination that defendant
intentionally inflicted the injuries causing the death of the child. — Where
defendant was charged with intentional child abuse resulting in death, there was
sufficient evidence to support the conviction where the state presented evidence that
defendant was the only adult present with the child in the immediate hours before
defendant called 911 to report the child was seizing, that defendant failed to call 911
right away, choosing instead to call a friend first, and where five experts testified for the
state, including the pediatric radiologist who reviewed the child's CT scan before
surgery, the ICU physician who treated the child, the forensic pathologist who oversaw
the child's autopsy, the chief medical examiner for the state, and a child abuse
pediatrician who reviewed the records in the child's case, and agreed that the child died
of blunt force trauma to the brain inflicted in the hours before he was brought to the
hospital and that the only reasonable explanation was that there was a high energy
injury to the child's brain hours before the CT scan. The state also presented evidence
of defendant's consciousness of guilt, specifically that defendant fled to Mexico soon
after being informed that doctors suspected the child's injuries were non-accidental.
State v. Soto, 2025-NMSC-051.

Sufficient evidence of intentional child abuse. — Where defendant admitted to
police that she often lost her temper when her eight-month-old baby cried, admitted that
she had bitten her baby, that she had shaken her baby, that she had hit the baby in the
head, that she had thrown the baby on the bed causing the baby to hit her head against
the wall, and that she had thrown the baby on the floor, and where the forensic
pathologist testified that, based on the evidence of multiple bruises on the baby’s face
and head and evidence of bleeding around the baby’s brain and inside the baby’s eyes,
the baby died from a fatal traumatic brain injury, defendant’s conviction for intentional
child abuse resulting in the death of a child was supported by substantial evidence.
State v. Cabezuela, 2015-NMSC-016.

Elements of intentional child abuse. — Intentional child abuse under Section 30-6-1
NMSA 1978 occurs only when a defendant causes the abuse. It does not include the
failure to act to prevent another from abusing the child. UJI 14-602 NMRA for
intentionally causing child abuse is a misstatement of the relevant law when it includes
the phrase "failure to act". State v. Cabezuela, 2011-NMSC-041, 150 N.M. 654, 265
P.3d 705.

Where the state only charged defendant with intentional child abuse resulting in death
and the court instructed the jury that the state had to prove beyond a reasonable doubt
that defendant’s "actions or failure to act resulted in the death" of the child, the jury was
improperly instructed as to the elements of intentional child abuse resulting in death,
because the instruction included both intentional and negligent theories of child abuse.
State v. Cabezuela, 2011-NMSC-041, 150 N.M. 654, 265 P.3d 705.

Elements of intentional child abuse resulting in the death of a child under the age
of twelve. – Where the state charged defendant with intentional child abuse resulting in
death of a child who was eight months old and the jury instruction required the jury to
find that the child was under the age of eighteen, but did not require the jury to find that
the child was under the age of twelve, the jury was improperly instructed as to the
elements of intentional child abuse resulting in the death of a child under the age of
twelve. State v. Cabezuela, 2011-NMSC-041, 150 N.M. 654, 265 P.3d 705.

Elements instruction on intentional child abuse resulting in death did not result in
fundamental error. — Where defendant was convicted of intentional child abuse
resulting in the death of a child less than twelve years of age, defendant’s contention
that the jury instructions improperly defined the intent element for the crime of
intentional child abuse by endangerment was without merit, because the instructions
given at defendant’s trial required the jury to find that defendant acted intentionally when
he caused the child to be placed in a situation that endangered her life or safety or
caused the child to be tortured, cruelly confined, or cruelly punished. The elements
instruction for intentional child abuse by endangerment was not incomplete or otherwise
inconsistent with the law, nor was the jury instruction confusing or misleading under the
circumstances of the case. State v. Lucero, 2017-NMSC-008.

Proof required for conviction of child abuse by endangerment. — A discernible risk
of danger to a particular child or particular children is required to support a conviction of
child abuse by endangerment and for a defendant to be criminally liable for child abuse
by endangerment, the defendant must be aware of a particular danger to the identifiable
child or children when engaging in the conduct that creates the risk of harm. State v.
Gonzales, 2011-NMCA-081, 150 N.M. 494, 263 P.3d 271, cert. granted, 2011-
NMCERT-008, 268 P.3d 513.

Insufficient evidence of child abuse by endangerment. — Where defendant was
tried on multiple alternative theories of child abuse relating to injuries sustained by her
son, and where the jury acquitted defendant under the state's principle theory of child
abuse, that she inflicted her son's injuries, but convicted her under one of the state's
alternatives, that she recklessly permitted by endangerment each of her son's injuries,
there was insufficient evidence to support defendant's convictions for child abuse by
endangerment, because it was the state's theory that defendant was guilty of permitting
her son to be endangered because she allowed her boyfriend to abuse the child, but the
state failed to provide any evidence of any act or omission by defendant establishing
that she allowed her boyfriend to abuse the child, and in fact, the state attempted to
convince the jury that the boyfriend did not harm the child, which was consistent with
the state's primary theory that defendant, rather her boyfriend, inflicted her son's injuries
but inconsistent with the alternative theory that defendant allowed her boyfriend to
abuse the child. State v. Leidy, 2023-NMCA-073.

Insufficient evidence of permitting endangerment by medical neglect. — Where
defendant was tried on multiple alternative theories of child abuse relating to injuries
sustained by her son, and where the jury acquitted defendant under the state's principle
theory of child abuse, that she inflicted her son's injuries, but convicted her under one of
the state's alternatives, that she recklessly permitted by endangerment each of her
son's injuries, there was insufficient evidence to support defendant's conviction for child
endangerment by medical neglect, because under a medical neglect theory, the state
had to put forth substantial evidence that defendant's neglect resulted in the child's
great bodily harm, meaning that medical neglect was at least a significant cause of the
child's great bodily injury, but there was no evidence presented that defendant's failure
to seek treatment for the injuries resulted in great bodily harm to the child, and with
regard to the count related to bruises on the child, the state presented no evidence
suggesting that medical treatment was even necessary for the bruises. State v. Leidy,
2023-NMCA-073.

Evidence of DWI was insufficient to support conviction of child abuse by
endangerment. — Where defendant, who was severely drunk, collided with a vehicle in
which two children were riding in the back seat, killing one child and injuring the other
child, and the state failed to prove that defendant was aware of the danger to the
particular children who were the victims of defendant’s drunk driving, the evidence was
insufficient to convict defendant of negligent or intentional child abuse by
endangerment. State v. Gonzales, 2011-NMCA-081, 150 N.M. 494, 263 P.3d 271, cert.
granted, 2011-NMCERT-008, 268 P.3d 513.

A moving DWI is a sufficient factual basis for a child abuse by endangerment
conviction. — The mere fact that a defendant was driving a vehicle in which a child
was a passenger while defendant was intoxicated, standing alone, is sufficient as a
matter of law to support a conviction of for child abuse by endangerment. State v.
Orquiz, 2012-NMCA-080, 284 P.3d 418, cert. quashed, 2013-NMCERT-003.

Where defendant with driving a vehicle with defendant’s nine-year-old child in the
vehicle; defendant drove through an intersection without stopping at a stop sign and
crashed into a ditch across the intersecting roadway; the child suffered minor injuries;
defendant claimed the defendant could not stop the vehicle because the brakes failed;
and defendant was convicted of driving while intoxicated, defendant’s moving DWI
alone was a sufficient factual basis for defendant’s child abuse by endangerment
conviction even if the DWI did not otherwise separately evince indicial of unsafe driving.
State v. Orquiz, 2012-NMCA-080, 284 P.3d 418, cert. quashed, 2013-NMCERT-003.

Evidence sufficient to support conviction for child endangerment. — Where
defendant claimed, in his trial on child endangerment, that the state failed to prove that
defendant knew the victim was a child, evidence that defendant, during a home
invasion, asked the fifteen-year-old victim, "Are your parents home?", was sufficient
evidence for the jury to infer defendant’s awareness that the person he would later hold
at gunpoint was a child. State v. Ramirez, 2016-NMCA-072, cert. denied.

Sufficient evidence of child abuse. — Where, in defendant’s trial for first-degree
murder and child abuse, the jury heard evidence that defendant fired a gun at the victim
nine times at point-blank range, that the victim was seated in the front passenger seat of
his vehicle, and that the victim’s three children were sitting in the back seats of the
vehicle in immediate proximity to their father, and where the jury heard evidence that
although the victim was shot nine times, only five of the bullets were found inside his
body, that several of the bullets defendant fired traveled through the victim and
continued onward, one of which traveled through the driver’s-side window in the second
row of seats of the vehicle and one of which was recovered from the inside roof of the
vehicle, there was sufficient evidence to support the jury’s determination that defendant
placed the three children in a situation that endangered their lives and that defendant
showed a reckless disregard for their safety and health. State v. Ramirez, 2018-NMSC-
003.

Corpus delicti rule. — A defendant’s extrajudicial statements may be used to establish
the corpus delicti when the prosecution is able to demonstrate the trustworthiness of the
confession and introduce some independent evidence of a criminal act. State v. Wilson,
2011-NMSC-001, 149 N.M. 273, 248 P.3d 315.

Proof of corpus delicti. — Where defendant was charged with first degree abuse of a
child resulting in death; the child died without any physical signs of trauma; defendant
confessed to suffocating the child with a blanket; the evidence confirmed the statements
made by defendant in the confession; the evidence also showed that the child was in
normal respiratory and cardiovascular health on the day prior to the child’s death, the
child had not been breathing before the child was taken to an emergency room even
though there was no underlying medical condition that would kill the child, defendant
made false statements to police and medical personnel about the child’s medical record
suggesting that defendant portrayed the child as chronically sick to cover up a crime,
and the cause of death was consistent with a blockage to the mouth and nose, the
corpus delicti of the crime was established because the evidence corroborated the
trustworthiness of defendant’s confession and independently showed that the child died
from a criminal act. State v. Wilson, 2011-NMSC-001, 149 N.M. 273, 248 P.3d 315.

Separate instructions on intentional and negligent child abuse were warranted. —
Where defendant, who was responsible for watching the child and who was frustrated
and irritated by the child’s crying, bundled the child in a blanket tighter than usual and
put the child face down on a pillow in the crib; the child became ill, was taken to a
hospital and died from an injury to the brain caused by lack of oxygen to the brain;
defendant was indicted for both negligent and intentional child abuse resulting in great
bodily harm; at the beginning of the trial, the state’s theory was that defendant placed
the child in a dangerous situation by swaddling the child tightly and leaving the child
unattended; and during the trial, the state introduced the theory that defendant
intentionally suffocated the child, defendant was entitled to separate jury instructions for
negligent and intentional child abuse because the state’s theories of how the harm to
the child occurred were different and inconsistent. State v. Consaul, 2014-NMSC-030.

When separate instructions are required to prove reckless or intentional child
abuse. — Jury instructions are to be read and considered as a whole and when so
considered they are proper if they fairly and accurately state the applicable law; where a
defendant is charged with both reckless and intentional child abuse resulting in the
death of a child under twelve years of age, separate instructions for reckless and
intentional child abuse are not necessary as long as the verdict forms make it clear
which crime defendant was convicted of because the punishments are different for each
crime. State v. Montoya, 2015-NMSC-010.

Where defendant was charged with both intentional and reckless child abuse, it was not
reversible error where the elements of both intentional and reckless child abuse were
contained in one instruction, when the instruction provided the definitions of reckless
acts and intentional acts, and the special forms provided to the jury made it clear which
crime defendant was convicted of: intentional child abuse resulting in the death of a
child under twelve years of age. State v. Montoya, 2015-NMSC-010.

Reckless child abuse resulting in the death of a child under twelve is a lesser-
included offense of intentional child abuse resulting in the death of a child under
twelve. — The statutory elements of reckless child abuse resulting in the death of a
child under twelve are a subset of the statutory elements of intentional child abuse
resulting in the death of a child under twelve; the only distinction between the two
crimes is the mens rea required, either intentional or reckless; one can commit child
abuse recklessly without acting intentionally, but one cannot intentionally commit child
abuse without consciously disregarding a substantial and unjustifiable risk. State v.
Montoya, 2015-NMSC-010.
Where defendant was charged with both intentional and reckless child abuse, it was
appropriate for the trial court to use a step-down instruction, instructing the jury that if
they determined that defendant was guilty of child abuse resulting in death, they had to
then determine whether defendant committed the crime intentionally or with reckless
disregard, if the jury found that defendant committed the crime intentionally, then they
were to complete the special verdict form and go no further, if they had reasonable
doubt as to whether the crime was committed intentionally, they had to decide whether
the crime was committed with reckless disregard, and if the jury could not find that the
crime was committed intentionally or with reckless disregard, they were to find
defendant not guilty of child abuse resulting in death. State v. Montoya, 2015-NMSC-
010.

Lesser-included offense of intentional child abuse resulting in the death of a child
under twelve. — Because reckless child abuse resulting in the death of a child under
twelve is a lesser-included offense of intentional child abuse resulting in the death of a
child under twelve, when a defendant is charged with intentional child abuse resulting in
the death of a child under twelve, the defendant will be on notice to defend against both
intentional and reckless child abuse resulting in the death of a child under twelve when
the abuse results from the same conduct or course of conduct. State v. Montoya, 2015-
NMSC-010.

Where defendant was charged with both intentional and reckless child abuse, it was
appropriate for the trial court to use a step-down instruction providing the process by
which the jury should consider each charge when both charges were based on the
same course of conduct. State v. Montoya, 2015-NMSC-010.

Sufficient evidence of intentional child abuse. — Where the state presented
evidence that the seventeen-month-old child was in good health prior to being left alone
with defendant, the child’s injuries could not have been accidental, and that defendant
admitted hitting the child, there was sufficient evidence from which the jury could have
found beyond a reasonable doubt that defendant committed intentional child abuse
resulting in the death of a child under the age of twelve. State v. Montoya, 2015-NMSC-
010.

Instruction on lesser included offense not warranted. — Where defendant was
charged with child abuse resulting in the death of a child under twelve years of age; the
state presented expert evidence that the child’s death was caused by blunt force injuries
to the child’s head due to vigorous shaking of the child; and defendant requested an
instruction on the lesser included offense of child abuse not resulting in death on the
basis of defendant’s admission that when defendant pulled the child’s pants too hard,
the child fell back on the child’s head, the trial court did not abuse its discretion in
refusing the lesser included instruction, because the incident to which defendant
admitted did not rise to the level of criminally punishable conduct and there was
insufficient evidence to support a conviction of child abuse not resulting in death. State
v. Juan, 2010-NMSC-041, 148 N.M. 747, 242 P.3d 314.
Substantial evidence. — Where defendant left the defendant’s child, who was two
years of age, with defendant’s friend while defendant went to work; the friend later
asked defendant to return home and told defendant that the friend had picked the child
up by the child’s ears and had thrown the child into a bathtub; defendant saw physical
symptoms, which suggested that the friend had caused serious injury to the child;
defendant had previously witnessed the friend abuse the child; defendant stayed home
with the child the next day, but returned to work on the third day leaving the child in the
friend’s care; the friend later asked defendant to return home; when defendant returned
home, defendant found that the child was dead; and the evidence showed that the injury
that resulted in the child’s death occurred on the third day, there was sufficient evidence
to support defendant’s conviction of negligently permitting child abuse resulting in death.
State v. Vasquez, 2010-NMCA-041, 148 N.M. 202, 232 P.3d 438. cert. denied, 2010-
NMCERT-004, 148 N.M. 572, 240 P.3d 659.

Sufficient evidence of child endangerment. — Where defendant was driving with
defendant’s six-year-old child in the car; defendant smelled of alcohol and defendant’s
eyes were bloodshot and watery; defendant admitted to drinking at least five beers and
some tequila prior to driving; and defendant admitted that defendant probably had too
much alcohol to drive, the circumstantial evidence constituted substantial evidence that
defendant acted with reckless disregard for the safety of defendant’s child. State v.
Chavez, 2009-NMCA-089, 146 N.M. 729, 214 P.3d 794, cert. denied, 2009-NMCERT-
007, 147 N.M. 361, 223 P.3d 358.

Sufficient evidence of intentional child abuse. — Where defendant did not dispute
that the child died due to a blunt force injury to the head and that the cause of death
was homicide; in two police interviews, defendant admitted harming the child on the day
and night of the incident; and in a third police interview, defendant stated that
defendant’s friend harmed the child, there was sufficient evidence from which the jury
could have found beyond a reasonable doubt that defendant intentionally abused the
child and a retrial was not barred by double jeopardy. State v. Cabezuela, 2011-NMSC-
041, 150 N.M. 654, 265 P.3d 705.

Where the defendant’s three-year-old son was found by police officers naked with linear
wounds on the child’s back and stomach; the child was staying with the defendant at the
time; the officers testified that the defendant was hostile and uncooperative; there were
fifteen marks on the child’s body extending from the child’s lower to upper back; some
of the marks wrapped around the child’s abdomen; the defendant claimed that a dog
caused the marks on the child’s body; a doctor testified that the marks were consistent
with child abuse, that the marks appeared to have been caused by the child being hit
with a thin, flexible object, and that the marks were not consistent with dog scratches;
and the officers retrieved various cords from the home that were consistent with the
child’s injuries, the evidence was sufficient to convict the defendant of intentional child
abuse. State v. Davis, 2009-NMCA-067, 146 N.M. 550, 212 P.3d 438.

Sufficient evidence. — Circumstantial evidence that the child was in defendant's sole
care for 56 minutes preceding defendant's discovering of the child's injuries; the child's
injuries may have been inflicted minutes before the child began to display symptoms of
the injury; once the child suffered the injuries, the child would have quickly become very
sick; the child's injuries were acute, meaning that the injuries may have been inflicted
seconds before they were discovered; and the child's skull fracture looked as if it had
been inflicted a very short time prior to the child's death, there was sufficient evidence to
support the finding that defendant caused the child's death. State v. Jojola, 2005-
NMCA, 119, 138 N.M. 459, 122 P.3d 43, cert. quashed, 2006-NMCERT-010, 140 N.M.
674, 146 P.3d 809.

Sufficient evidence of intentional child abuse by torture. — Where a child victim
testified that defendant, the child’s foster father, used a stun gun on him more than
twenty-four times, where pictures admitted at trial showed injuries to the child and
where there was corroborating testimony from the child’s sister and the investigating
detective, a rational jury could have found defendant guilty beyond a reasonable doubt
as the child’s principal abuser on twenty-four counts of child abuse by torture, and
where the child testified that defendant purchased the stun gun and gave it to his son,
that the child was stunned by defendant’s son approximately fifteen times, was stunned
by defendant’s other son approximately three times, that defendant was present during
the assaults by one of the sons and would laugh in response, and where there was
corroborating testimony from the child’s sister, a rational jury could have found
defendant guilty beyond a reasonable doubt as an accessory to child abuse inflicted by
another. State v. Vargas, 2016-NMCA-038.

Instruction based on the statutory presumption of child abuse by endangerment.
— Where the defendant was convicted of negligently permitting child abuse by
endangerment after the defendant was arrested in a house where chemicals and
equipment involved with methamphetamine production were found, and where the trial
court, in addition to an instruction on the essential elements of child abuse by
endangerment, instructed the jury, based on the presumption created by Section 30-6-1
NMSA 1978, that "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",
the instruction 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. State v. Trossman, 2009-NMSC-034, 146 N.M. 462, 212 P.3d 350.

A conviction of child abuse by endangerment requires proof of the actual presence
of a child when the dangerous situation occurred and the mere fact that a child normally
resided in a home that contains chemicals and equipment used or intended for use in
the manufacturing of a controlled substance is insufficient to support a conviction of
child abuse by endangerment. State v. Trossman, 2009-NMSC-034, 146 N.M. 462, 212
P.3d 350.

Evidence insufficient. — Where the defendant was convicted of negligently permitting
child abuse by endangerment after the defendant was arrested in a house where
chemicals and equipment involved with methamphetamine production were found; there
was evidence that the child resided in the house with the defendant; the child was not
present in the house on the date the defendant was arrested; no methamphetamine
was found in the house; and there was no evidence of specific dates when the child had
been present in the house, of when the items that could be used to produce
methamphetamine had been taken into the house, that any of the dangerous, legal,
household chemicals in the house were stored in a manner that could endanger a child,
of when or how often methamphetamine production had occurred in the house, or that
the house was contaminated, the evidence was insufficient to support the defendant’s
conviction of child abuse by endangerment. State v. Trossman, 2009-NMSC-034, 146
N.M. 462, 212 P.3d 350.

Endangerment by medical neglect. — In the context of medical neglect, causing
medical neglect and permitting medical neglect define identical criminal acts. State v.
Nichols, 2016-NMSC-001, rev’g 2014-NMCA-040, 321 P.3d 937.

Where defendant, whose six-month-old baby died from a loss of blood associated with
blunt abdominal trauma and a lacerated liver, was charged with both causing
endangerment by medical neglect and permitting endangerment by medical neglect,
and where the jury found defendant not guilty of causing medical neglect but guilty of
permitting medical neglect, both of which imply passive involvement, the conflicting
verdicts preclude any determination of which culpable act was the actual basis for the
jury’s conviction of defendant. Defendant’s conviction for negligently permitting medical
neglect of his son was reversed. State v. Nichols, 2016-NMSC-001, rev’g 2014-NMCA-
040, 321 P.3d 937.

Endangerment by "medical neglect" defined. — "Medical neglect" is defined as the
failure to provide medical, dental, or psychiatric care that is necessary to prevent or to
treat serious physical or emotional injury or illness. State v. Garcia, 2021-NMSC-019.

Insufficient evidence of causation in a case alleging intentional child abuse by
endangerment through medical neglect. — Where defendant was found guilty of
intentional child abuse resulting in the death of a child under the age of twelve by
endangerment through medical neglect, and where the state introduced evidence that
the child, while under the care of defendant, suffered blunt force trauma and other
injuries to his head that resulted in a lack of oxygen and blood to the brain, and that
defendant, in order to avoid blame for the child's injuries, did not call 911 and instead
took the child to the child's mother, but where the state's medical experts could not
testify to a reasonable degree of medical certainty that the child would have lived with
earlier medical intervention, there was insufficient evidence to prove beyond a
reasonable doubt that defendant's failure to call 911 resulted in the child's death. Proof
of causation in a criminal medical neglect case requires that the medical neglect be a
factual, but-for cause of the child's death. State v. Garcia, 2021-NMSC-019.

Insufficient evidence of conspiracy to commit child abuse. — Where defendant
was found guilty of conspiracy to commit intentional child abuse resulting in the death of
a child under the age of twelve by endangerment through medical neglect, and where
the state introduced evidence that the child, while under the care of defendant and
defendant's wife, suffered blunt force trauma and other injuries to his head that resulted
in a lack of oxygen and blood to the brain, and sought to prove that either defendant or
his wife stood by while the baby was brutally beaten to death and did nothing or both
defendant and his wife beat the child to death, there was insufficient evidence to
support the conviction because no evidence was presented from which a jury could infer
that defendant and his wife formed a mutually implied agreement to commit child abuse
against the child. State v. Garcia, 2021-NMSC-019.

Insufficient evidence of reckless child abuse based on medical expert testimony.
— Where defendant, who was responsible for watching the child and who was
frustrated and irritated by the child’s crying, bundled the child in a blanket tighter than
usual and put the child face down on a pillow in the crib; the child became ill, was taken
to a hospital, and died from an injury to the brain caused by lack of oxygen to the brain;
the state’s theory was that defendant placed the child in a dangerous situation by
swaddling the child tightly and leaving the child unattended; expert medical testimony
provided the only evidence that the child may have been suffocated and that the child
had not been injured by other, noncriminal causes; and the state’s medical experts
testified almost unanimously that the mere act of swaddling the child and placing the
child face down on a pillow would not have caused the severe brain injuries they
observed in the child, the state failed to prove causation and the charge of criminal
recklessness completely failed for lack of substantial evidence. State v. Consaul, 2014-
NMSC-030.

Use of medical testimony alone to support a criminal conviction. — Medical
testimony to support causation in a criminal proceeding, as a matter of evidentiary
foundation, should describe in detail the methodology utilized first to "rule-in" possible
causes and then to "rule-out" all but one. Based on that process of elimination,
described in detail to the jury, a doctor then should be able to offer an opinion on
causation to a reasonable degree of medical probability which satisfies a minimum
standard for admissibility. In a criminal trial, to meet a standard of proof beyond a
reasonable doubt, prosecutors point to additional, non-opinion evidence, so that when
considered cumulatively all the evidence is sufficient to support a verdict beyond a
reasonable doubt. If, however, the prosecution is relying solely on medical opinion, it
must go beyond the mere probable causation required for admissibility. The medical
testimony should establish why the expert opinions are sufficient in themselves to
establish guilt beyond a reasonable doubt. State v. Consaul, 2014-NMSC-030.

Insufficient evidence of intentional child abuse based on medical testimony as to
a "likely" cause. — Where defendant, who was responsible for watching the child and
who was frustrated and irritated by the child’s crying, bundled the child in a blanket
tighter than usual and put the child face down on a pillow in the crib; the child became
ill, was taken to a hospital and died from an injury to the brain caused by lack of oxygen
to the brain; the state’s theory was that defendant intentionally suffocated the child; the
expert medical testimony provided the only evidence that the child may have been
suffocated and that the child had not been injured by other, noncriminal causes; and the
state’s medical experts testified that they suspected child abuse, that they could not rule
out child abuse, and that they could not think of other explanations for the child’s
injuries, that child abuse was a likely cause, and that the child was likely suffocated, the
evidence was insufficient to establish beyond a reasonable doubt that defendant
intentionally suffocated the child. State v. Consaul, 2014-NMSC-030.

Mens rea for intentional child abuse by endangerment. — Where defendant was
charged with intentional child abuse by endangerment, and where the state presented
evidence at trial that defendant drove poorly while intoxicated, with her child strapped in
a car seat, the evidence was insufficient to support the jury’s verdict that defendant
committed intentional child abuse by endangerment, because the mens rea for
intentional child abuse by endangerment requires a conscious object to endanger a
child, and no evidence was presented that it was defendant’s conscious objective to
endanger her child. State v. Granillo, 2016-NMCA-094, cert. denied.

Insufficient evidence of child abuse based on DWI. — Where police officers found
defendant in the driver’s seat of a van that was parked on a roadside; the van was not
running; the keys were not in the ignition; both defendant and the passenger in the van
were intoxicated and incapable of driving; the passenger’s children were in the back
seat; and the state did not rely on a theory of past driving, but on the theory that
defendant might drive the van while impaired and place the children in a situation which
endangered their lives and health, the evidence was insufficient to support defendant’s
conviction of child abuse. State v. Cotton, 2011-NMCA-096, 150 N.M. 585, 263 P.3d
925, cert. denied, 2011-NMCERT-008, 268 P.3d 513.

Evidence of endangerment based on filthy living conditions. — When filthy living
conditions provide the exclusive basis for charging the defendant with child
endangerment, the state has the burden to identify the specific dangers posed by the
living environment and to present evidence to support a finding that there is a
substantial and foreseeable risk that such filthy living conditions endangered the child.
State v. Chavez, 2009-NMSC-035, 146 N.M. 434, 211 P.3d 891, rev'g 2008-NMCA-126,
145 N.M. 11, 193 P.3d 558.

Insufficient evidence of endangerment based on filthy living conditions. — Where
there was dirty laundry, dirty dishes, dirty diapers and mouse droppings throughout the
defendant’s house; the house contained dangerous features, such as a damaged
ceiling, broken glass in the yard, nail-ridden debris from a collapsed shed, a gap in the
floor boards on the front porch and household chemicals within reach of the children;
open and broken dresser drawers were easily accessible to the children who could get
inside and get stuck; closets were open and had piles of items inside that could fall on
and injure a child; the shower and toilet were covered in mold; a razor was accessible to
the children; rodent droppings were present throughout the house, including in cabinets
where dishes and food were stored and on the dishes; no hot water from the tap was
available, because the propane that fueled the water heater was empty and
disconnected; the electric stove was available to heat water for washing, cooking and
bathing; there was no evidence of drugs or alcohol in the house; the children were
physically healthy and well-nourished; and there was no evidence connecting these
conditions to a substantial and foreseeable risk of harm to the children, the evidence
was insufficient to support a finding that the defendant’s conduct created a substantial
and foreseeable risk of harm to the children. State v. Chavez, 2009-NMSC-035, 146
N.M. 434, 211 P.3d 891, rev'g 2008-NMCA-126, 145 N.M. 11, 193 P.3d 558.

Insufficient evidence of endangerment. — Where defendant’s neighbor found
defendant’s three-year-old child wandering around outside their apartment building at
2:00 a.m.; the child was crying and cold and wearing only a dirty diaper; the apartment
was in a high-crime area and there was a busy parking lot, alley and street nearby; the
door to defendant’s apartment was ajar when the neighbor returned the child to the
apartment; the neighbor found defendant asleep in the apartment; defendant was
intoxicated; and the state produced no evidence that the child had been in a direct line
of harm or exposed to anything more than a possibility of danger or that defendant's
intoxication contributed to the child's wandering outside the apartment, the evidence
was insufficient to support defendant’s conviction for negligent child abuse by
endangerment because the state failed to prove that the risk to the child was
foreseeable and probable. State v. Garcia, 2014-NMCA-006, cert. granted, 2013-
NMCERT-012.

Where defendant took the child to a tattoo parlor and signed a written consent to allow
the child to have the child’s tongue pierced without the knowledge, authorization or
permission of the child’s parent; the piercing was successful, but the child sustained
serious injuries as a result of an accidental fall in the tattoo parlor; the child received
penicillin during the course of treatment and it was discovered that the child was allergic
to the drug; defendant lacked knowledge about tongue piercing and about the child’s
allergy to penicillin; defendant did not perform the piercing; and the owner of the tattoo
parlor had sufficient knowledge and experience to perform the tongue piercing, the
evidence was insufficient to support defendant’s conviction of child abuse by
endangerment because the evidence did not show that defendant’s conduct created a
substantial and foreseeable risk of serious harm to the child. State v. Webb, 2013-
NMCA-027, 296 P.3d 1247, cert. denied, 2013-NMCERT-002.

Where the defendant placed the defendant’s five-month-old child to sleep in a dresser
drawer filled with blankets and padding because the child’s bassinet had broken; the
child died in the drawer; the autopsy listed the cause of death as inconclusive; and there
was an absence of evidence in the record to indicate that the sleeping conditions
presented anything more than a mere possibility of harm, the evidence failed to
establish that the defendant created a substantial and foreseeable risk that the child
would suffer a serious injury. State v. Chavez, 2009-NMSC-035, 146 N.M. 434, 211
P.3d 891, rev'g 2008-NMCA-126, 145 N.M. 11, 193 P.3d 558.

Insufficient evidence of endangerment based on DWI. — Where defendant was
seated in the driver’s seat of a vehicle with defendant’s spouse in the middle, and
defendant’s four-year-old child on the passenger side of the vehicle; the vehicle was not
running; defendant was holding the keys; open alcohol containers were on the floor and
in the cup holders; defendant was intoxicated; defendant informed police officer that
defendant was going to a local store; and defendant was convicted of DWI by actual
physical control, there was insufficient evidence to support a conviction for felony child
abuse by endangerment. State v. Etsitty, 2012-NMCA-012, 270 P.3d 1277, cert. denied,
2011-NMCERT-012.

Sufficient evidence of child abuse. — Where defendant fired two gunshots into a
house in which a child, aged three weeks, was situated at the time of the shooting; the
bullets found in the house matched those fired from defendant’s handgun; and before
the shooting, a witness told defendant that there was a newborn baby in the house,
there was sufficient evidence to support defendant’s conviction of negligent abuse of the
child. State v. Arrendondo, 2012-NMSC-013, 278 P.3d 517.

Sufficient evidence of child abuse by endangerment. — Where five-year-old triplets
and a 15-year-old child lived with defendant and defendant’s spouse in a small house;
the home was littered with cat urine and feces, trash, rotten food, dirty dishes and piles
of dirty clothes; two loaded firearms with spare ammunition and magazines were in an
open box on the floor in the master bedroom; the children played with toy guns,
including a toy gun that was a Glock replica indistinguishable from a real gun; when
police officers enter the home, defendant had glass pipes for smoking
methamphetamine on defendant’s person; defendant admitted that defendant and
defendant’s spouse had been using methamphetamine for three days and had not slept;
and defendant admitted that defendant smoked methamphetamine when the children
were home and left drug paraphernalia, including syringes, strewn about the master
bedroom and the backyard, there was sufficient evidence to support defendant’s
conviction of negligent child abuse by endangerment. State v. Schaaf, 2013-NMCA-082.

Where the defendant lived in a trailer with his three small children and the mother of the
children; the trailer had no gas utility and no alternative heating source or hot water; the
trailer was infested with mice; the ceiling appeared ready to collapse; one window was
missing, another was broken and glass shards were on the ground; the bathroom and
shower were moldy; razors and chemicals were left where the children could access
them; there was a trash pit at ground level outside the trailer that had flies and a
pungent odor; open cans of solvent and cleaning fluid were on the porch; there were car
parts, spray cans, matches and other objects that could be dangerous to children about
the yard; the ramp leading to the trailer had a gap wide enough to injure a child; and the
defendant sometimes left the children unattended in this environment, the defendant’s
conviction of child abuse by endangerment was supported by substantial evidence.
State v. Chavez, 2008-NMCA-126, 145 N.M. 11, 193 P.3d 558, rev'd, 2009-NMSC-035,
146 N.M. 434, 211 P.3d 891.

Sufficient evidence of child abuse resulting in death. — Where the defendant put
her child, who was sick with bronchitis, in a low youth-bed without rails on his back with
a bottle and covered him with a blanket and placed an electric space heater on the floor
within nine inches from the bed and left the child unattended all night and where the
child rolled off the bed and was burned to death by the space heater, the evidence was
sufficient to convict the defendant of negligent child abuse resulting in death. State v.
Chavez, 2007-NMCA-162, 143 N.M. 126, 173 P.3d 48, cert. denied, 2007-NMCERT-
011, 143 N.M. 155, 173 P.3d 762.

"Endangered". — Although the jury was not instructed on the definition of
"endangered", when a common term is used, the jury may properly apply the common
meaning of the term. State v. Jensen, 2005-NMCA-140, 138 N.M. 647, 124 P.3d 1186,
rev'd, 2006-NMSC-045, 140 N.M. 416, 143 P.3d 178.

Evidence insufficient. — Where the state's case was nothing more than that the child
abuse by endangerment statute criminalizes the filthy conditions of a non-controlling
caretaker's home continually made available to a 15-year old boy, and absent evidence
showing the particular susceptibility to endangerment of a child who has reached 15
years of age, the evidence was not sufficient for a rational jury to conclude, from
common experience beyond a reasonable doubt, that the situation was sufficiently
precarious such that the child was on a reasonably sure path to harm's way with
unfortunate health consequences reasonably likely to result. State v. Jensen, 2005-
NMCA-140, 138 N.M. 647, 124 P.3d 1186, rev'd, 2006-NMSC-045, 140 N.M. 416, 143
P.3d 178.

Evidence insufficient to convict of child abuse. — In low-speed vehicle chase,
where evidence showed that defendant was speeding, but then slowed to posted speed
limit; that defendant lawfully went through intersections after he failed to stop for the
police; that defendant failed to use a turn signal on one turn; that defendant slowed, but
did not come to a complete stop at one stop sign; that defendant's automobile was
drifting back and forth within its lane of travel; that there was no evidence that three
children in the vehicle were unrestrained; that there was no evidence of the surrounding
circumstances, such as the extent of defendant's abrupt swerve, traffic congestion or
volume; and that defendant was acquitted of DWI, the evidence was insufficient to
justify a finding that defendant showed a reckless disregard for the children in the
automobile or exposed them to a substantial risk to their safety, to sustain a conviction
of felony child abuse. State v. Clemonts, 2006-NMCA-031, 139 N.M. 147, 130 P.3d 208,
cert. denied, 2006-NMCERT-003, 139 N.M. 352, 132 P.3d 1038.

Reckless disregard. — For negligent child abuse, one need only have reckless
disregard to the consequences in the face of substantial and foreseeable danger. State
v. Schoonmaker, 2005-NMCA-012, 136 N.M. 749, 105 P.3d 302, rev'd on other
grounds, 2008-NMSC-010, 143 N.M. 373, 176 P.3d 1105.

Evidence sufficient to convict of negligent abuse. — Where the evidence
established that prior to 3:20 p.m. on July 24, 2000, deceased child was a normal and
healthy baby, and two hours later, after being in defendant's sole custody and care, he
was not, and medical witnesses testified that deceased child suffered substantial,
serious injuries that were consistent with shaken baby syndrome and that those injuries
would manifest shortly after being violently shaken, and although defendant offered
several innocent explanations, the consensus of the medical witnesses was that his
explanations were medically unacceptable, and he also admitted shaking the child on
two occasions, evidence is sufficient for the jury to convict defendant of criminally
negligent child abuse. State v. Schoonmaker, 2005-NMCA-012, 136 N.M. 749, 105 P.3d
302, rev'd on other grounds, 2008-NMSC-010, 143 N.M. 373, 176 P.3d 1105.

Endangerment. — Because Subsection D(1) of this section proscribes conduct that
may endanger the health, as well as the life, of a child, it was unnecessary for the state
to show that an amount of marijuana accessible to the children could have been fatal.
State v. Graham, 2005-NMSC-004, 137 N.M. 197, 109 P.3d 285.

It was within the jurors' experience to decide whether the amount of accessible
marijuana in the apartment endangered the health of a three-year-old child and a one-
year-old child who lived in the apartment. State v. Graham, 2005-NMSC-004, 137 N.M.
197, 109 P.3d 285.

Double jeopardy not violated. — Defendant's acquittal of intentional child abuse and
subsequent prosecution for negligent child abuse did not violate the federal
constitutional guarantee against double jeopardy. State v. Schoonmaker, 2005-NMCA-
012, 136 N.M. 749, 105 P.3d 302, rev'd on other grounds, 2008-NMSC-010, 143 N.M.
373, 176 P.3d 1105.

Double jeopardy violated. — Defendant's convictions for second degree murder and
child abuse resulting in death, for the death of defendant's child that resulted from the
same conduct, violated the double jeopardy clause. State v. Mann, 2000-NMCA-088,
129 N.M. 600, 11 P.3d 564, aff'd, 2002-NMSC-001, 131 N.M. 459, 39 P.3d 124.

Single continuous act. — Where defendant drove while intoxicated with three children
who were not restrained, defendant committed one continuous act and defendant was
subject to only one charge and one punishment for child abuse. State v. Castaneda,
2001-NMCA-052, 130 N.M. 679, 30 P.3d 368, cert. denied, 130 N.M. 558, 28 P.3d
1099.

Viable fetus not a child. — Legislature did not intend for a viable fetus to be included
within the statutory definition of a child for the purposes of the child abuse statute. State
cannot prosecute a mother for child abuse when the mother uses cocaine during her
pregnancy. State v. Martinez, 2006-NMCA-068, 139 N.M. 741, 137 P.3d 1195, cert.
quashed, 2007-NMCERT-005, 141 N.M. 762, 161 P.3d 259.

Section does not impose a mandatory minimum sentence for purposes of federal
sentencing. — Where defendant pleaded guilty in federal court to one count of second-
degree child abuse, and where the district court imposed a forty-two month sentence,
which both parties concede was based on a calculation error which resulted in a
sentence longer than the court intended to impose, but where the government argued
that the error was harmless because defendant was subject to a six-year minimum
sentence under this section, the error was not harmless, because although a second-
degree felony carries a basic sentence of nine years imprisonment, § 31-20-3 NMSA
1978, and a trial court may reduce a basic sentence upon a finding by the judge of any
mitigating circumstances surrounding the offense or concerning the offender, § 31-18-
15.1 NMSA 1978, but in no case shall the reduction in sentence exceed one-third of the
basic sentence, a New Mexico trial court has discretion to vary the penalty for a crime
by suspending part or all of the sentence. Thus, under the New Mexico sentencing
scheme, defendant would not be required to serve a minimum of six years and may not
be required to serve any period of incarceration or even to receive any sentence at all.
United States v. Jones, 921 F.3d 932 (10th Cir. 2019).

Law reviews. — For note, "Criminal Law: Applying the General/Specific Statute Rule in
New Mexico — State v. Santillanes," see 32 N.M.L. Rev. 313 (2002).

For note, "Criminal Law: The Child Abuse Statute Now Requires Criminal Negligence —
Santillanes v. State," see 24 N.M.L. Rev. 477 (1994).