State v. Granillo , 10 N.M. 615 ( 2016 )

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _______________
3 Filing Date: August 22, 2016
4 NO. 33,637
5 STATE OF NEW MEXICO,
6 Plaintiff-Appellee,
7 v.
8 VERONICA GRANILLO,
9 Defendant-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY
11 Daniel Viramontes, District Judge
12 Hector H. Balderas, Attorney General
13 Santa Fe, NM
14 Charles J. Gutierrez, Assistant Attorney General
15 Albuquerque, NM
16 for Appellee
17 Bennett J. Baur, Chief Public Defender
18 Mary Barket, Assistant Appellate Defender
19 Santa Fe, NM
20 for Appellant
1 OPINION
2 FRENCH, Judge.
3 {1} This appeal requires us to construe the mens rea for intentional child abuse by
4 endangerment. NMSA 1978, § 30-6-1(D)(1) (2009). Veronica Granillo (Defendant)
5 appeals her conviction for intentional child abuse by endangerment, arguing that (1)
6 the evidence was insufficient; (2) the jury was improperly instructed as to the
7 elements of the crime; and (3) the district court improperly limited her closing
8 argument. Defendant’s insufficiency of the evidence argument raises the main issue
9 in this case—the requisite mens rea for intentional child abuse by endangerment. We
10 hold that intentional child abuse by endangerment requires a conscious objective to
11 endanger the child. Because we agree with Defendant that the evidence was
12 insufficient to prove the requisite mens rea, we reverse her conviction for intentional
13 child abuse by endangerment. We do not reach Defendant’s remaining arguments.
14 BACKGROUND
15 {2} A witness testified at trial that a car veered onto the wrong side of the road,
16 continued driving that way for approximately five or six blocks, and in so doing
17 forced “quite a few cars off the road.” The witness noted the license plate number,
18 called the police, and kept the car within eyesight.
1 {3} Upon arrival, Lieutenant Conrad Jacquez of the City of Deming Police
2 Department observed the car stop in the center of the road, then start and stop twice
3 more, eventually coming to rest on the wrong side of the road. Lieutenant Jacquez
4 initiated a traffic stop.
5 {4} Lieutenant Jacquez knocked on the driver’s side window, received no response,
6 and knocked again. When Defendant rolled down the window, she had a strong odor
7 of alcohol, bloodshot and watery eyes, slurred speech, and did not focus her eyesight
8 on Lieutenant Jacquez while they spoke. There was an open, half-empty bottle of
9 whiskey on the passenger seat and a full bottle of whiskey on the floor of the front
10 passenger seat.
11 {5} A three-year-old child was in the back of the car. Officer Robert Ramirez, who
12 had arrived to assist, observed the child unbuckle himself from his child seat, stand
13 up, and turn around.
14 {6} Lieutenant Jacquez made two attempts to administer field sobriety tests to
15 Defendant, but abandoned both because Defendant was unable to stand. Lieutenant
16 Jacquez placed Defendant under arrest.
17 {7} Once arrested, Defendant became verbally and physically belligerent.
18 Lieutenant Jacquez read Defendant the New Mexico Implied Consent Act and she
19 agreed to a blood test. At the hospital, Defendant—still verbally abusive and
2
1 physically uncooperative—refused to exit the police car. Defendant was not tested for
2 the presence of alcohol or drugs.
3 {8} Defendant was charged and tried not only for intentional child abuse, of which
4 she was convicted, but also for: aggravated driving under the influence of
5 intoxicating liquor or drugs under NMSA 1978, § 66-8-102(D) (2010, amended
6 2016), on which the jury was unable to reach a verdict; driving with a suspended or
7 revoked license under NMSA 1978 § 66-5-39 (2013), on which the jury acquitted;
8 and failure to maintain a lane on a laned road under NMSA 1978, § 66-7-317 (1978),
9 on which the district court directed a verdict in favor of the Defendant.
10 SUFFICIENCY OF THE EVIDENCE
11 {9} Defendant argues that her conviction for intentional child abuse by
12 endangerment must be reversed because the State failed to present sufficient evidence
13 that the child was endangered, and even if Defendant endangered the child, she did
14 not do so with the requisite state of mind. Essentially, Defendant argues that evidence
15 was lacking of both the actus reus and the mens rea. Either insufficiency requires this
16 Court to reverse. State v. Vigil, 2010-NMSC-003, ¶ 15, 147 N.M. 537, 226 P.3d 636
17 (“[O]bserving that a conviction of child abuse cannot be sustained in the absence of
18 sufficient evidence of both [the actus reus and the mens rea.]”, (citing State v.
19 Schoonmaker, 2008-NMSC-010, ¶ 48, 143 N.M. 373, 176 P.3d 1105 (Schoonmaker
3
1 II)). See State v. Padilla, 2008-NMSC-006, ¶ 12, 143 N.M. 310, 176 P.3d 299
2 (“Typically, criminal liability is premised upon a defendant’s culpable conduct, the
3 actus reus, coupled with a defendant’s culpable mental state, the mens rea.”).
4 Standard of Review
5 {10} We review a challenge to the sufficiency of the evidence to determine “whether
6 substantial evidence of either a direct or circumstantial nature exists to support a
7 verdict of guilt beyond a reasonable doubt with respect to every element essential to
8 a conviction.” State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314.
9 “[Appellate courts] view the evidence in the light most favorable to the guilty verdict,
10 indulging all reasonable inferences and resolving all conflicts in the evidence in favor
11 of the verdict.” State v. Astorga, 2015-NMSC-007, ¶ 57, 343 P.3d 1245 (internal
12 quotation marks and citation omitted). The ultimate question is “whether a rational
13 jury could have found beyond a reasonable doubt the essential facts required for a
14 conviction.” Id. (internal quotation marks and citation omitted).
15 {11} We review any question of statutory interpretation raised by Defendant’s
16 argument de novo as a question of law. State v. Chavez, 2009-NMSC-035, ¶ 10, 146
17 N.M. 434, 211 P.3d 891.When we interpret a statute, “[the appellate court’s] main
18 goal . . . is to give effect to the Legislature’s intent.” State v. Almanzar, 2014-NMSC-
19 001, ¶ 14, 316 P.3d 183 (alteration in original) (internal quotation marks and citation
4
1 omitted). Textual ambiguity is resolved in favor of the defendant, in accordance with
2 the rule of lenity. State v. Consaul, 2014-NMSC-030, ¶ 40, 332 P.3d 850.
3 Child Abuse by Endangerment
4 {12} Child abuse by endangerment “consists of a person knowingly, intentionally
5 or [recklessly],1 and without justifiable cause, causing or permitting a child to be . .
6 . placed in a situation that may endanger the child’s life or health[.]” Section 30-6-
7 1(D)(1). Abuse by endangerment is a special class of child abuse designed to punish
8 conduct that “exposes a child to a significant risk of harm, even though the child does
9 not suffer a physical injury.” Chavez, 2009-NMSC-035, ¶ 15 (internal quotation
10 marks and citation omitted); see also State v. Gonzales, 2011-NMCA-081, ¶ 20, 150
11 N.M. 494, 263 P.3d 271 (“[E]ndangerment is something that exists as an antecedent
12 to any harm that might befall a child.”), aff’d on other grounds by 2013-NMSC-016,
13 301 P.3d 380. Our Supreme Court concluded that “by classifying child [abuse by]
14 endangerment as a third-degree felony, our Legislature anticipated that criminal
15 prosecution would be reserved for the most serious occurrences, and not for minor or
16 theoretical dangers.” Chavez, 2009-NMSC-035, ¶ 16. In accordance with the purpose
1
17 In Consaul, our Supreme Court stated that, in the criminal context, “negligent
18 child abuse” should thereafter be labeled “reckless child abuse” without future
19 reference to negligence. 2014-NMSC-030, ¶ 37. We comply with that instruction in
20 this opinion, while acknowledging that the statutory text reads “negligently.”
5
1 of the child abuse by endangerment statute to “punish conduct that creates a truly
2 significant risk of serious harm to children[,]” id. ¶ 22, a child is considered
3 endangered only when placed at “a substantial and foreseeable risk of harm.” Id.
4 (internal quotation marks and citation omitted).
5 Mens Rea for Intentional Child Abuse by Endangerment
6 {13} We analyze first whether any rational jury could have concluded beyond a
7 reasonable doubt that Defendant acted with the requisite mental state. The Legislature
8 established three specific mental states by which a person may commit child abuse
9 by endangerment: intentionally, knowingly, and recklessly. See State v. Montoya,
10 2015-NMSC-010, ¶ 40, 345 P.3d 1056. In this case, Defendant was charged only with
11 intentional child abuse by endangerment. She was not charged with knowing or
12 reckless child abuse by endangerment, nor was the jury presented with a step-down
13 instruction for endangerment committed knowingly or recklessly.2 Thus, Defendant’s
14 conviction required sufficient evidence that she committed the actus reus
15 intentionally. Cf. Gonzales, 2011-NMCA-081, ¶ 30 (stating that a conviction for child
2
17 Given that the Legislature chose identical punishment for reckless, knowing,
18 and intentional child abuse by endangerment, the reason that the State chose to
19 exclusively pursue an intentional theory is unclear. See Montoya, 2015-NMSC-010,
20 ¶ 33 (stating that “the Legislature has chosen to punish all types of child abuse the
21 same with respect to the defendant’s mental state”).
6
1 abuse by endangerment requires proof that the defendant’s “culpable mental state
2 coincided with the act”). Before analyzing whether there was sufficient evidence that
3 Defendant acted intentionally, we must first define the mens rea applicable to the
4 crime of intentional child abuse by endangerment. This is a question of law that we
5 examine de novo. See Chavez, 2009-NMSC-035, ¶ 10.
6 {14} The Legislature does not define the mental state “intentionally” in Section 30-
7 6-1. State v. Cabezuela, 2011-NMSC-041, ¶ 23, 150 N.M. 654, 265 P.3d 705. Nor
8 have our appellate courts interpreted the mens rea requirement for intentional child
9 abuse by endangerment. The State argues that because child abuse is not a specific
10 intent crime but instead a general intent crime, the mental state required for
11 intentional child abuse by endangerment is “only a ‘conscious wrongdoing,’ or ‘the
12 purposeful doing of an act that the law declares to be a crime.’ ” State v. Brown,
13 1996-NMSC-073, ¶ 22, 122 N.M. 724, 931 P.2d 69. Therefore, argues the State, an
14 intentional mens rea in this context requires that a person intend the underlying
15 conduct that might support a finding that a child was endangered—e.g., that
16 Defendant intended to drive her vehicle while intoxicated, with a child in the
17 car—but not that a person intended to endanger the child. We disagree and explain
18 below.
19 {15} The common-law classification of crimes as requiring either “specific intent”or
7
1 “general intent” has been the cause of considerable confusion.3 As a consequence,
2 there is a movement away from the determination of mens rea by reference to the
3 “venerable” specific intent/general intent dichotomy. Bailey, 444 U.S. at 403. As an
4 alternative to the traditional dichotomy, the Model Penal Code defines four specific
5 culpable states of mind: purposely, knowingly, recklessly, and negligently. See Model
6 Penal Code § 2.02 (2015). Our child abuse statute refers to multiple specific culpable
7 states of mind: intentionally, knowingly, and as clarified by our Supreme Court,
3
18 The United States Supreme Court has pointed out in detail some of the
19 confusion caused by reliance on common law terminology:
10 Sometimes ‘general intent’ is used in the same way as ‘criminal intent’
11 to mean the general notion of mens rea, while ‘specific intent’ is taken
12 to mean the mental state required for a particular crime. Or, ‘general
13 intent’ may be used to encompass all forms of the mental state
14 requirement, while ‘specific intent’ is limited to the one mental state of
15 intent. Another possibility is that ‘general intent’ will be used to
16 characterize an intent to do something on an undetermined occasion, and
17 ‘specific intent’ to denote an intent to do that thing at a particular time
18 and place.
19 United States v. Bailey, 444 U.S. 394, 403 (1980) (internal quotation marks and
20 citation omitted). Our Supreme Court also cautions: “[the] specific-general intent
21 approach has been criticized because it is not always clear whether a particular
22 offense is a specific-intent crime or a general-intent crime[,]” Brown, 1996-NMSC-
23 073, ¶ 23, and importantly, “[t]he specific-general intent common-law approach does
24 not take into consideration the existence of a heightened mens rea aside from specific
25 intent.” Id. ¶ 27 (internal quotation marks and citation omitted).
8
1 recklessly. Montoya, 2015-NMSC-010, ¶ 40. The tiered mens rea structure of our
2 child abuse statute is akin to that of the Model Penal Code. Structurally, our child
3 abuse statute leans away from the common law approach, and instead, is more
4 consistent with the approach of the Model Penal Code.
5 {16} Because of the mens rea structure of Section 30-6-1(D), and following our
6 appellate courts and the United States Supreme Court that have relied on the Model
7 Penal Code, we look to the Model Penal Code to inform our definition of an
8 intentional mens rea. See, e.g., Consaul, 2014-NMSC-030, ¶ 37 (citing the Model
9 Penal Code in establishing another mens rea standard for the child abuse statute);
10 State v. Carrasco, 1997-NMSC-047, ¶¶ 8, 17-18, 36, 124 N.M. 64, 946 P.2d 1075
11 (referring to provisions of the Model Penal Code discussing accomplice liability and
12 conspiracy); see also United States v. United States Gypsum Co., 438 U.S. 422, 444
13 (1978) (referring to the Model Penal Code as a source of guidance on the “requisite
14 but elusive mental element of criminal offenses”) (internal quotation marks and
15 citation omitted). As used in the Model Penal Code, an intentional state of mind
16 corresponds to purpose. See Model Penal Code § 1.13(12) (2015) (“ ‘intentionally’
17 or ‘with intent’ means purposely”); see also 1 Wayne R. LaFave, Substantive
18 Criminal Law, § 5.1(c) at 337 (2d ed. 2003) (stating that “intention (or purpose) to
19 do the forbidden act (omission) or cause the forbidden result” is one of the four types
9
1 of mens rea). A person acts purposely (intentionally) under the Model Penal Code if
2 it is the person’s “conscious object to engage in conduct of that nature or to cause
3 such a result.” Model Penal Code § 2.02(2)(a)(i). In order to determine whether in the
4 context of Section 30-6-1(D)(1) a person’s conscious object must be directed toward
5 the result of endangering a child or, as the State argues, the underlying conduct, we
6 examine the intent of the Legislature in enacting Section 30-6-1(D)(1). In essence, we
7 must determine what sort of social harm has been proscribed by the
8 Legislature—conduct or a result. See Joshua Dressler, Understanding Criminal Law,
9 § 9.10(D) (5th ed. 2009) (stating that the social harm proscribed by a criminal statute
10 may consist of wrongful conduct, wrongful results, or both).
11 {17} We conclude the social harm proscribed by the Legislature with Section 30-6-
12 1(D)(1) is a result, not conduct. The legislative purpose of the statute is to address the
13 social harm caused when children are put at “truly significant risk of serious harm.”
14 State v. Schaaf, 2013-NMCA-082, ¶ 8, 308 P.3d 160 (internal quotation marks and
15 citation omitted). This purpose is achieved by proscribing the result of endangering
16 a child. See § 30-6-1(D)(1) (prohibiting a person from “causing or permitting a child
17 to be . . . placed in a situation that may endanger the child’s life or health” without
18 justifiable cause). That is unlike criminal statutes that proscribe harmful conduct. See
19 Understanding Criminal Law, § 9.10(D) at 114-15 (explaining that a criminal statute
10
1 that proscribes harmful conduct without regard to a prohibited result establishes a
2 “conduct crime” and, by contrast, a criminal statute that prohibits a harmful result
3 without reference to how the result occurs establishes a “result crime”); compare §
4 66-8-102(C)(1) (2010) (defining driving under the influence of alcohol as, in relevant
5 part, “driv[ing] a vehicle . . . if the person has an alcohol concentration of eight one
6 hundredths or more in the person’s blood[,]” thereby proscribing conduct without
7 regard to a result of the conduct) with NMSA 1978, § 30-2-1(A) (1994) (defining
8 murder as, in relevant part, “the killing of one human being by another without lawful
9 justification or excuse, by any of the means with which death may be caused[,]”
10 thereby proscribing a harmful result without regard to the conduct leading to the
11 result). A criminal conviction requires that the proscribed social harm (the actus
12 reus), whether a result or conduct, be performed with the requisite mental state. See
13 Padilla, 2008-NMSC-006, ¶ 12 (“Typically, criminal liability is premised upon a
14 defendant’s culpable conduct, the actus reus, coupled with a defendant’s culpable
15 mental state, the mens rea.”). Because the social harm proscribed by Section 30-6-
16 1(D)(1) is a result—endangering a child—we hold that the mens rea for intentional
17 child abuse by endangerment requires a conscious objective to achieve a
18 result—endanger the child. The State’s proffered definition of the mens rea for
19 intentional child abuse by endangerment, requiring no more than volitional conduct,
11
1 is not directed at the proscribed social harm and does not require the level of
2 culpability intended by the Legislature under the proper Model Penal Code analysis.
3 {18} Our interpretation of an intentional mens rea requirement in the context of
4 Section 30-6-1(D)(1) is in accord with the statutory definition of an intentional mens
5 rea requirement used by numerous other states. For example, by Colorado statute, a
6 person acts intentionally “when [that person’s] conscious objective is to cause the
7 specific result proscribed by the statute defining the offense.” Colo. Rev. Stat. Ann.
8 § 18-1-501(5) (1977). And in Texas, a person acts intentionally “with respect to the
9 nature of his conduct or to a result of his conduct when it is [that person’s] conscious
10 objective or desire to engage in the conduct or cause the result.” Tex. Penal Code
11 Ann. § 6.03(a) (1994); see also, e.g., Ariz. Rev. Stat. Ann. § 13-105(10)(a) (1994)
12 (defining “ intentionally ” to mean “with respect to a result or to conduct described
13 by a statute defining an offense, that a person’s objective is to cause that result or to
14 engage in that conduct”); N.Y. Penal Law § 15.05(1) (McKinney 1965) (“A person
15 acts intentionally with respect to a result or to conduct described by a statute defining
16 an offense when [that person’s] conscious objective is to cause such result or to
17 engage in such conduct.”). Those definitions are not compatible with the State’s
18 understanding of an intentional mens rea that requires no more than proof that the
19 person had an awareness of what he was doing.
12
1 {19} Our related case law does not dissuade us from our interpretation of Section
2 30-6-1(D)(1). This Court’s interpretation in State v. Schoonmaker of the mens rea for
3 intentional child abuse resulting in great bodily harm is consonant with our
4 interpretation of the mens rea for intentional child abuse by endangerment. 2005-
5 NMCA-012, ¶¶ 25-26, 136 N.M. 749, 105 P.3d 302 (Schoonmaker I), reasoning
6 disavowed on other grounds by Montoya, 2015-NMSC-010, ¶ 41, rev’d on other
7 grounds by Schoonmaker II, 2008-NMSC-010, ¶¶ 1, 54, overruled by Consaul, 2014-
8 NMSC-030, ¶ 38. In Schoonmaker I, this Court stated that intentional child abuse
9 resulting in great bodily harm requires “a voluntary act . . . such as violently shaking
10 a baby, when it is his or her intent, purpose, or conscious object to engage in a
11 harmful act (shake the baby) or to cause the harmful consequence.” 2005-NMCA-
12 012, ¶ 26. Our analysis in Schoonmaker I emphasized the conscious object or
13 intention to act harmfully or cause harm, and the voluntary nature of the underlying
14 actions that cause the harm was de-emphasized. The Schoonmaker I Court’s
15 construction of the mens rea for intentional child abuse resulting in great bodily harm
16 is in harmony with our interpretation of the mens rea for intentional child abuse by
17 endangerment.
18 {20} Although both Defendant and the State rely on Montoya, that case does not
19 guide our interpretation of the mens rea for intentional child abuse. 2015-NMSC-010.
13
1 In Montoya, our Supreme Court stated that intentional and reckless child abuse by
2 endangerment generally do not require separate jury instructions. Id. ¶ 33. That
3 conclusion was grounded in the fact that our Legislature elected equal punishment for
4 child abuse by endangerment committed with any of the three statutorily delineated
5 mental states. Id. Nonetheless, intentional, knowing, and reckless are distinct mental
6 states. Cf. id. ¶ 38 (stating that child abuse resulting in the death of a child under
7 twelve committed recklessly is a lesser-included offense of that act committed
8 intentionally); see also Bailey, 444 U.S. at 404 (noting that recklessness, knowledge,
9 and purpose ascend in level of culpability). The relevant question contemplated by
10 the Montoya Court was not the substance of the mens rea for, specifically, intentional
11 child abuse by endangerment, but whether the Constitution would allow a jury verdict
12 for child abuse by endangerment when committed intentionally, knowingly, or
13 recklessly if the jury was instructed on the requirements of each in a single
14 instruction. 2015-NMSC-010, ¶¶ 32-33. In response to that question, the Montoya
15 Court provided the following guidance:
16 in most cases when the abuse does not result in the death of a child
17 under twelve, it is not necessary to specify the defendant's mental state
18 or to provide separate jury instructions for reckless or intentional conduct;
19 evidence that the defendant acted knowingly, intentionally or recklessly
20 will suffice to support a conviction.
21 (alteration, emphasis, internal quotation marks, and citation omitted). Id. ¶ 33; cf.
14
1 Schad v. Ariz., 501 U.S. 624, 632 (1991) (stating that the state can construct statutes
2 allowing juries to convict despite disagreeing about the means/theory of the
3 commission of a crime, including the mens rea, but that power is limited by the due
4 process clause); id. at 649 (Scalia, J., concurring in part and concurring in the
5 judgment) (stating that “it has long been the general rule that when a single crime can
6 be committed in various ways, jurors need not agree upon the mode of commission”).
7 That guidance does not impact this case, where Defendant was charged under one
8 specific mens rea theory and the jury instructed only under that theory. Defendant’s
9 jury did not decide that she was guilty of child abuse by endangerment knowingly,
10 intentionally, or recklessly but, instead, rendered a verdict that Defendant committed
11 intentional child abuse. Thus, Montoya does not speak to the question we face—the
12 mens rea of intentional child abuse, specifically. Neither Montoya nor Schoonmaker
13 I dissuades us from our interpretation of the mens rea for intentional child abuse by
14 endangerment.
15 {21} In sum, we conclude that the State’s proposed definition of intentional is
16 moored to the inapplicable common-law general intent/specific intent dichotomy. The
17 Legislature specifically heightened the different mens reas for commission of child
18 abuse by endangerment. See Montoya, 2015-NMSC-010, ¶ 40 (stating that child
19 abuse by endangerment can be committed intentionally, knowingly, or recklessly).
15
1 Because “[t]he specific-general intent common-law approach does not take into
2 consideration the existence of a heightened mens rea aside from specific intent[,]”
3 Brown, 1996-NMSC-073, ¶ 27 (internal quotation marks omitted), we reject the
4 State’s approach to Section 30-6-1(D)(1). Instead, because the Legislature has
5 provided heightened mens reas in a tiered structure, the definitions of an intentional
6 mental state from the Model Penal Code and other jurisdictions require a conscious
7 objective to cause the proscribed social harm, and the social harm proscribed by the
8 Legislature is the result of endangering a child, we hold that the mens rea for
9 intentional child abuse by endangerment requires a conscious objective to endanger
10 a child.
11 {22} Having concluded that the mens rea for intentional child abuse by
12 endangerment requires a conscious objective to endanger the child, we analyze
13 whether there was sufficient evidence to meet that standard.
14 Sufficiency of the Evidence of the Mens Rea
15 {23} In the absence of direct evidence of intent, we look to the circumstantial
16 evidence to determine whether any rational jury could have found beyond a
17 reasonable doubt that Defendant had a conscious objective to endanger the child. See
18 State v. Martinez, 2006-NMSC-007, ¶ 16, 139 N.M. 152 , 130 P.3d 731 (stating that
19 intent may be proven by circumstantial evidence and is often inferred from facts of
16
1 the case).
2 {24} Importantly, the child was strapped into a child seat. That is inconsistent with
3 the conscious creation of a substantial and foreseeable risk to the child. Evidence was
4 presented that Defendant drove poorly, but not in a way that suggested that she was
5 purposely courting danger. Rather, she drove haltingly. No testimony was offered that
6 she swerved at another car or any other target. Nor did the car hit anything.
7 Defendant’s evident intoxication, like her driving, created risk for the child that was
8 well beyond ordinary but that, without more, does not indicate a conscious objective
9 to endanger the child. Nor do we find that the evidence when viewed in
10 combination—Defendant’s poor but not aggressive driving while intoxicated, with
11 a child strapped in a car seat—allows a reasonable inference that Defendant had a
12 conscious objective to endanger the child.
13 {25} Perhaps substantial evidence was present to support a mens rea based on
14 recklessness, but such a theory was not charged by the State; thus, the jury was not
15 instructed regarding recklessness nor may we consider it on review. We hold that the
16 evidence was insufficient to support the jury’s verdict that Defendant committed child
17 abuse by endangerment intentionally, because no evidence was presented that it was
18 Defendant’s conscious objective to endanger the child. Accordingly, we reverse
19 Defendant’s conviction. We do not reach Defendant’s argument that she did not
17
1 endanger the child or Defendant’s other contentions of error.
2 CONCLUSION
3 {26} We hold that the mens rea for intentional child abuse by endangerment, Section
4 30-6-(D)(1), requires a conscious objective to endanger a child. There was
5 insufficient evidence that Defendant met that standard. Accordingly, we reverse and
6 remand to the district court with instructions to vacate Defendant’s conviction.
7 {27} IT IS SO ORDERED.
8 __________________________________
9 STEPHEN G. FRENCH, Judge
10 WE CONCUR:
11 _____________________________
12 TIMOTHY L. GARCIA, Judge
13 _____________________________
14 J. MILES HANISEE, Judge
18