This memorandum opinion was not selected for publication in
the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions
on the citation of unpublished memorandum opinions. Please also note that this
electronic memorandum opinion may contain computer-generated errors or other
deviations from the official paper version filed by the Court of Appeals and
does not include the filing date.
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
MICHELLE CHARLEY,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY,
Robert M. Schwartz, District Judge
Gary K. King, Attorney General, Margaret
E. McLean, Assistant Attorney General, Joel Jacobsen, Assistant Attorney
General, Santa Fe, NM, for Appellee
Jorge A. Alvarado, Chief Public Defender,
Sergio J. Viscoli, Assistant Appellate Defender, Santa Fe, NM, Sue Anne
Herrmann, Adjunct Professor of Law, Santa Fe, NM, Mark Cox, Practicing Law
Student, Christina Looney, Practicing Law Student, Ian Stoker, Practicing Law
Student, Katie Wilson, Practicing Law Student, Albuquerque, NM, for Appellant
M. MONICA ZAMORA, Judge. WE CONCUR:
CYNTHIA A. FRY, Judge, J. MILES HANISEE, Judge
{1} The memorandum
opinion previously filed in this matter on April 17, 2014, is hereby withdrawn,
and this memorandum opinion is substituted therefor, to reflect additional
counsel and practicing law students appearing for Defendant.
{2} Michelle Charley
(Defendant) appeals her convictions (and corresponding sentences) for
intentional child abuse and negligent child abuse by endangerment pursuant to
NMSA 1978, Section
30-6-1(D)(1) (2009), and for child abandonment pursuant to
NMSA 1978, Section
30-6-1(B) (2009). She raises three issues, arguing that: (1)
the warrantless entry to her home violated her constitutional rights against
unreasonable search and seizure, (2) the jury instructions, individually, and
collectively, misled and confused the jury resulting in fundamental error, and
(3) the State failed to present evidence necessary to support her convictions
for child abuse by endangerment and child abandonment. We conclude that there
was insufficient evidence to support Defendant’s convictions. Accordingly, we
do not reach the other issues raised by Defendant. We therefore reverse.
{3} In August 2010,
Defendant was a client at Crossroads for Women (Crossroads), an outpatient
program for women with mental health and substance abuse issues. Crossroads’
staff worked with Defendant to help her overcome alcohol abuse. As part of her
involvement with the program, Defendant received assistance with relapse
prevention, one-on-one and group parenting training, life-skills training,
employment training, and assistance with housing. Crossroads co-leased an
apartment with Defendant and assisted her by paying a portion of her rent.
Defendant lived in the apartment with her six-year old daughter A.R., her
six-month old son, J.C., and her thirteen-year old nephews, A.C. and B.C.
Crossroads’ policy was to keep a key to the apartment so its staff could check
on the status of the client if needed.
{4} Defendant began in
the inpatient program, Maya’s Place, in December 2007 and subsequently
transitioned into Crossroads. Since that time, Defendant has maintained regular
contact with Andrea Atencio, a Crossroads family specialist, with whom she met
weekly, and with Sheila Ciminera, her case manager, with whom she met weekly
and spoke to several times each week.
{5} On August 31, 2010,
Ms. Ciminera called Defendant in the early afternoon and Defendant appeared to
be slurring her speech. Ms. Ciminera asked Defendant if she was intoxicated and
Defendant confirmed that she was. Ms. Ciminera asked where six-month old J.C.
was and Defendant said he was there with her, her boyfriend, and another woman.
Ms. Ciminera then told Defendant she was going to come over. Ms. Atencio was
also concerned because Defendant had missed an early afternoon appointment with
her. Ms. Atencio and Ms. Ciminera met with their clinical director, Larrea
Lavoscia and their executive director, K.C. Quirk. The group decided that Ms.
Ciminera and Ms. Lavoscia would go to the apartment to conduct a welfare/status
check on Defendant and J.C., as it is customary for Crossroads to conduct
well-checks whenever a client relapses. Ms. Atencio met them at the apartment.
{6} At that time,
Defendant’s car was not in the parking lot. There was no one present at the
apartment when Ms. Ciminera, Ms. Lavoscia, and Ms. Atencio arrived. Inside the
apartment the women observed open containers of alcohol and an unopened case of
beer. Defendant had left her cell phone in the apartment. This was concerning
and unusual, as Defendant always had her cell phone and it was the only means
of communication Crossroads had with her. Ms. Ciminera, Ms. Lavoscia, and Ms.
Atencio waited for a while inside the apartment, then decided to proceed with the
family emergency plan. The family emergency plan specified that if Defendant
was unable to provide care for her children, Crossroads would: (1) notify the
emergency contact (Defendant’s mother), (2) receive Defendant’s children, and
(3) contact the Children, Youth & Families Department (CYFD).
{7} Ms. Ciminera called
Defendant’s mother. Ms. Atencio left a note for Defendant advising her that she
would be taking A.R., A.C., and B.C. to the Crossroads office and if Defendant
did not contact her by five o’clock that afternoon, CYFD would be notified.
Defendant was well aware of this protocol. A.C and B.C. were walking home as
Ms. Atencio was leaving the apartment. She took them with her and went to pick
up A.R. from school. At approximately four o’clock, Ms. Atencio arrived at
Crossroads with all three children. The children did homework and were fed. Ms.
Atencio and Ms. Ciminera had still not heard from Defendant. As a result, they
called CYFD because they were concerned that no one knew where the Defendant or
J.C. were. The CYFD representative advised Ms. Ciminera that CYFD would contact
the police.
{8} Police officers
Nick Wheeler (Officer Wheeler) and Joey Tosta (Officer Tosta) were dispatched
to Crossroads where they spoke with Ms. Ciminera. Ms. Ciminera explained the
nature of the Crossroads program to the officers, recounted the events of the
day, and expressed her concern for Defendant and J.C. The officers felt it was
necessary to go to Defendant’s apartment to conduct a welfare check on both
Defendant and J.C. Ms. Ciminera gave the officers Defendant’s address as well
as a description of Defendant’s vehicle.
{9} When the officers
arrived at Defendant’s apartment complex, they identified her vehicle parked
outside. Officer Wheeler looked inside the vehicle and observed several empty
beer cans, as well as full containers of beer. He also observed an infant car
seat. This situation was considered a high priority situation by the officers,
based on their standard operating procedure and in light of the information
provided that Defendant was intoxicated and the infant was in her care.
{10} The police officers
knocked numerous times on the front door and announced several times their
presence and their intention to conduct a welfare check on those inside the
apartment, but got no response. Officer Tosta found the door to be unlocked.
Based on the information they had, Defendant’s vehicle in the parking lot, and
Defendant’s intoxication, the decision was made to open the unlocked door but
not yet enter the apartment to check on the safety of those inside the
apartment. Again, the officers, standing at the open front door, announced
several times their presence and that they were there to conduct a welfare
check, and again there was no response.
{11} At that point, the
officers decided to enter the apartment to make sure everything was okay.
Inside, there were beer cans on the coffee table and there were multiple
containers of beer on the counters and kitchen table, but there was no one
present. The officers proceeded through the apartment checking each room,
finding no one. The officers approached a closed bedroom door and again knocked
several times, announced their presence and intention to conduct a welfare
check, and again, no response.
{12} They opened the door
to find Defendant was in the room sitting on the edge of the bed staring at the
ground, a male was standing facing the door and looking at the ground, and J.C.
was lying in the middle of the bed. Suddenly, Defendant became alarmed and
upset by the officers’ presence in her room. She became belligerent, yelling
and cursing at the officers. Concerned for safety, Officer Wheeler placed
Defendant in handcuffs and escorted her to his car so that he and Officer Tosta
could conduct an investigation and check the status of J.C.
{13} An examination of
J.C. revealed that his diaper had overflowed. Fecal matter from the diaper was
partially dried on most of J.C.’s body, including his face. Officer Wheeler
observed feces around J.C.’s mouth, as well as inside his eyes and ears.
Officer Wheeler considered calling a field investigator to the scene to
document J.C.’s condition, but, concerned that a field investigator may not
arrive for hours, Officer Wheeler decided to take pictures of J.C. with his
cell phone camera and to clean the infant up. The officers gave J.C. a bath and
dressed him in clean clothing. Based on the fact that J.C. had feces in his
mouth and eyes, Officer Wheeler made the decision to arrest Defendant. The
officers packed a bag for J.C., called CYFD, and called Crossroads to request
that someone with an infant car seat pick J.C. up. Ms. Atencio returned to
Defendant’s apartment, picked up J.C., and took him to Crossroads where she and
the officers met with a caseworker from CYFD.
{14} Defendant was
charged with three alternative counts of child abuse as to J.C.: (1) child
abuse (intentionally caused); (2) child abuse (negligently caused); and (3)
child abuse (negligently permitted). She was also charged with three counts of
child abandonment, one count each as to A.R, A.C, and B.C. At trial Defendant
moved for directed verdict. The district court granted the motion as to the
charges of child abandonment of A.C. and B.C. The court denied the motion for a
directed verdict as to the alternative charges of child abuse of J.C. and the
charge of child abandonment of A.R. Defendant was convicted of intentional
child abuse, negligent child abuse by endangerment of J.C., and child
abandonment as to A.R.
I. Defendant’s
Convictions Were Not Supported By Sufficient Evidence
{15} When reviewing a
sufficiency of the evidence claim, we must determine whether the evidence
“could justify a finding by any rational trier of fact that each element of the
crime charged has been established beyond a reasonable doubt.”
State v.
Schaaf,
2013-NMCA-082, ¶ 11, 308 P.3d 160 (internal quotation marks and
citation omitted). In making this determination, we “view the evidence in the
light most favorable to the guilty verdict, indulging all reasonable inferences
and resolving all conflicts in the evidence in favor of the verdict.”
Id.
(internal quotation marks and citation omitted). Where a decision is supported
by substantial evidence, we will affirm.
See id. Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion[.]”
State v. Salgado,
1999-NMSC-008, ¶ 25,
126 N.M.
691,
974 P.2d 661 (internal quotation marks and citation omitted).
A. Child
Abuse of J.C. By Endangerment
{16} Section
30-6-1(D)(1) (2009) defines child abuse, in relevant part, as “knowingly,
intentionally[,] or negligently, and without justifiable cause, causing or
permitting a child to be[ ] . . . placed in a situation that may endanger the
child’s life or health[.]” Even though this statute could be interpreted
“broadly to permit prosecution for any conduct, however remote the risk, that
may
endanger [a] child’s life or health[,]” our Supreme Court has held that
criminal prosecution is “reserved for the most serious occurrences, and not for
minor or theoretical dangers.”
State v. Chavez,
2009-NMSC-035, ¶ 16,
146
N.M. 434,
211 P.3d 891 (alterations in original) (internal quotation marks and
citation omitted). Criminal prosecution under the endangerment statute requires
a showing that the “defendant’s conduct created a
substantial and
foreseeable risk of harm.”
Id. ¶ 22 (internal quotation marks and
citation omitted). This standard achieves the legislative purpose of the
statute by punishing conduct that “creates a truly significant risk of serious
harm to children.”
Schaaf,
2013-NMCA-082, ¶¶ 8, 11 (internal quotation
marks and citation omitted).
{17} In determining
whether the risk created by an accused’s conduct is substantial and
foreseeable, relevant considerations may include:
[T]he gravity of the risk, which
serves to place an individual on notice that his conduct is perilous, and
potentially criminal[;] . . . whether the defendant’s conduct violates a
separate criminal statute, which bolsters the endangerment charge[;] . . . the
likelihood of harm, which informs the court of the foreseeability of the risk
when evaluating its magnitude[;] . . . the length of time that the conditions
are allowed to exist[;] and the amount of supervision in the home[.]
Id. ¶ 9 (internal quotation marks and citation
omitted). The length of time the conditions existed and the level of
supervision are factors that can increase or mitigate the degree of risk
involved. Id.
{18} “[T]he [s]tate has
the burden to identify the specific dangers posed [to the child] . . . and to
present evidence to demonstrate that such . . . conditions endangered the
child.”
Chavez,
2009-NMSC-035, ¶ 27. “[T]he state must present specific
evidence, including scientific or empirical evidence, connecting the
circumstances to a substantial and foreseeable risk of harm, where it is not
readily apparent in the record.”
Schaaf,
2013-NMCA-082, ¶ 9.
{19} In this case, the
State presented the cell phone camera photographs that Officer Wheeler took of
J.C. (in which fecal matter was not visible on J.C.’s face or in his ears)
testimony by both Officer Wheeler and Officer Tosta as to J.C.’s condition, and
the opinions of both officers that J.C.’s condition was not healthy. The State
contends that this evidence was sufficient to show a substantial and foreseeable
risk of harm to J.C.’s health because fecal matter on the skin and in the
facial orifices undoubtedly poses a health risk to a baby. We are unpersuaded.
{20} J.C.’s condition was
certainly concerning and created a degree of risk to his health, particularly
because J.C. was an infant who was unable to avoid or tend to his own mess.
However, the question before us is whether his condition created a substantial
and foreseeable threat of serious harm. As our Supreme Court has recognized,
not every risk of harm rises to the level of felony child endangerment.
See
Chavez,
2009-NMSC-035, ¶ 35.
{21} It is not uncommon
for an infant to produce a mess that exceeds the capacity of a diaper. It is
also not uncommon for infants to move around and even to play in the messes
they have made. While it is desirable to tend to such messes promptly,
especially since human feces can be unsanitary, there was no evidence presented
to show that every exposure to human feces will result in serious illness. “The
risk of serious disease or illness is a matter of science and can be
established with empirical and scientific evidence.”
Id. ¶ 40.
{22} Here, the State did
not offer any scientific evidence regarding the risk of serious disease or
illness. The material on J.C. was not laboratory tested to determine if it was
fecal matter, or to determine the presence of disease or harmful bacteria.
Assuming it was a dangerous matter, the State did not present testimony from a
health professional explaining the scientific nexus and degree of likelihood
regarding J.C.’s condition and specific diseases or other significant threats
to his welfare.
See id. (“[O]ur juries deserve more evidentiary
assistance, particularly when the risks are based on matters of science, to
help them decide whether the threat of serious illness is significantly greater
in the particular [situation] in question.”). The only evidence linking J.C.’s
condition to a health risk was the officers’ opinion testimony that J.C.’s
condition was “not healthy.” This evidence is not sufficient to establish with
any particularity the gravity of risk to J.C or the likelihood that his
condition would result in serious harm.
{23} Furthermore, the
State did not present evidence that Defendant’s conduct violated a separate criminal
statute or that there was a lack of supervision in the home, and the record is
largely silent regarding the length of time J.C. was in the condition in which
the officers found him. While Officer Wheeler did testify that some of the
feces on J.C. had dried, that testimony was insufficient to establish the
length of time that J.C. had been in that state. Without additional evidence,
the risk of harm established by the State was only speculative. Therefore, we
conclude that the evidence presented was insufficient to show that Defendant’s
conduct presented a substantial and foreseeable risk to J.C.’s health and was
insufficient to support her conviction of negligent or intentional child abuse
by endangerment.
{24} Failure to
pick up a child after school does not rise to the type of abandonment
contemplated by New Mexico statutory law. “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.” Section 30-6-1(B).
{25} In this case,
Crossroads’ staff testified that Defendant’s family emergency plan provided
that in the event Defendant was unable to care for A.R, Crossroads’ staff would
pick A.R. up from school and notify CYFD. Crossroads’ staff were designated as
the emergency contacts with A.R.’s school. The school also kept a copy of the
release Defendant signed permitting Crossroads’ staff to pick A.R. up from
school. The purpose of the family emergency plan was to ensure that A.R. would
be cared for. Defendant knew that if she did not pick A.R. up from school,
Crossroads would be contacted and would pick A.R. up. Additionally, on August
31, 2010, when Crossroads’ staff elected to activate the family emergency plan,
they left Defendant a note advising her that the family emergency plan had been
activated and that A.R. would be picked up and taken to the Crossroads office.
A.R. was in fact picked up, fed and given help with her homework. Because A.R.
did not suffer neglect and was not placed in a situation where she may have
suffered neglect, we conclude that the evidence is insufficient to show that
Defendant intentionally left or abandoned A.R.
{26} To the extent the
State argues that the only reason Crossroads would notify CYFD that Defendant
had not picked A.R. up would be to report abandonment, we disagree. The record
simply does not support this assertion. While Crossroads’ staff did testify
that CYFD notification is part of its protocol, no explanation appears in the
record as to why. It is possible that in some circumstances Crossroads may
contact CYFD to report abandonment or abuse, but, it is also possible that a
family’s prior involvement with CYFD requires CYFD to be notified upon the activation
of the family emergency plan. In this case, the record is silent to the
particular reason that CYFD notification was included in Defendant’s family
emergency plan. We are not persuaded that the only reason for CYFD notification
would have been to report abandonment.
{27} For the foregoing
reasons, we reverse Defendant’s convictions for child abuse by endangerment and
child abandonment. We need not address Defendant’s remaining contentions of
error.