STATE V. COE, 1978-NMCA-108, 92 N.M. 320,
587 P.2d 973 (Ct. App. 1978)
CASE HISTORY ALERT: affected by
1993-NMSC-012
STATE of New Mexico, Plaintiff-Appellee,
vs.
Danny R. COE, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
1978-NMCA-108, 92 N.M. 320, 587 P.2d 973
Petition for Writ of Certiorari Denied
December 4, 1978
Hank Farrah, Albuquerque, for
defendant-appellant.
Toney Anaya, Atty. Gen., Santa Fe,
Charlotte Hetherington Roosen, Asst. Atty. Gen., Albuquerque, for
plaintiff-appellee.
HENDLEY, J., wrote the opinion. HERNANDEZ
and LOPEZ, JJ., concurs.
{1} Convicted of child abuse
resulting in death contrary to § 40A-6-1(C), N.M.S.A. 1953 (2d Repl. Vol. 6, 1972,
Supp.1975) defendant appeals. He asserts two grounds for reversal: (1) failure
of the trial court to grant a directed verdict based on insufficient evidence;
(2) whether § 40A-6-1(C), supra, is unconstitutional. We affirm.
{2} Defendant asserts that at
the time of his motion for dismissal the state had failed to offer any evidence
that defendant either abused the child or had any reason to
{*321}
be aware that the child was being abused. We disagree.
{3} The evidence established
that the child was abused; that defendant was living with the child and the
child's mother, Esther Smith; that defendant abused the child; that defendant
was alone with the child when it became unconscious; and, that the abuse resulted
in death. The medical evidence supports the conclusion indicating child abuse
and not injuries from falling down the stairs.
State v. Adams, 89 N.M.
737,
557 P.2d 586 (Ct. App.1976).
Constitutionality of § 40A-6-1(C), supra.
{4} Defendant was charged and
convicted only under § 40A-6-1(C)(1) and (2), supra. Consequently, he has
standing to challenge only those particular sections.
State v. Herrod,
84 N.M. 418,
504 P.2d 26 (Ct. App.1972). Therefore, any contention by defendant
that § 40A-6-1(C)(3), supra, is vague will not be considered.
{5} Defendant maintains that
§ 40A-6-1(C), supra, is unconstitutionally vague so as to violate due process.
State
v. Najera, 89 N.M. 522,
554 P.2d 983 (Ct. App.1976) held that a statute
violates due process "* * * if it is so vague that persons of common
intelligence must necessarily guess at its meaning * * *." The underlying
doctrine is one of notice and fair warning as to the nature of the proscribed
activity.
State v. Marchiondo, 85 N.M. 627,
515 P.2d 146 (Ct. App.1973).
In determining questions of vagueness that court considers the statute as a
whole.
State v. Orzen, 83 N.M. 458,
493 P.2d 768 (Ct. App.1972).
{6} Section 40A-6-1(C),
supra, is not vague. It clearly sets forth and segregates the type of conduct
proscribed by the law. It contains specific sections on neglect, abandonment,
and abuse. Each section contains its own definition. Section 40A-6-1(C), supra,
defines
abuse as conduct which:
"* * * 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; or
"(2) tortured, cruelly confined or cruelly punished; or
"(3) exposed to the inclemency of the weather.
"Whoever commits abuse of a child is guilty of a fourth
degree felony, unless the abuse results in the child's death or great bodily
harm, in which case he is guilty of a second degree felony." [Emphasis
added].
{7} Reasonable adults of
common intelligence would have no difficulty in ascertaining the type of
conduct proscribed by the statute and the type not so restricted. Defendant's
contention, that because of its negligence requirement the statute covers any
and all harm that might befall the child, is without substance.
State v.
Lucero, 87 N.M. 242,
531 P.2d 1215 (Ct. App.1975), held that § 40A-6-1,
supra, to be a strict liability statute.
State v. Adams, 89 N.M. 737,
557 P.2d 586 (Ct. App.1976) sustained a conviction of child abuse resulting in
death upon a negligence theory where the father had knowledge of the child
abuse and failed to take any action to halt that abuse.
{8} The statute then does not
apply to ordinary situations where a child is injured, but only to those where
the parent performs or fails to perform some abusive act. The statute requires
abuse
and not mere normal parental action or inaction. The statute gives fair warning
to any reasonable person that child abuse is prohibited and punishable
behavior.
"Every presumption is to be indulged in favor of the
validity and regularity of legislation, and it will not be declared
unconstitutional, unless the court is satisfied beyond all reasonable doubt
that the Legislature went outside the Constitution in enacting it. [Citations
omitted]."
{*322} The legislature
in enacting § 40A-6-1(C)(1) and (2), supra, acted within its province to
protect abused children. The legislature did not act outside its constitutional
limits.
{10} Defendant's contention
that the punishment under this statute is cruel and unusual is without merit.
It is based on matters which are not a part of this case.
HERNANDEZ and LOPEZ, JJ., concurs.