State v. Graham

• Decision Date: 01 March 2005
• Docket Number: No. 28,286.,28,286.
• Citation: 137 N.M. 197,109 P.3d 285,2005 NMSC 4
• Parties: STATE of New Mexico, Plaintiff-Petitioner, v. Antonio GRAHAM, Defendant-Respondent.
• Court: New Mexico Supreme Court

109 P.3d 285

137 N.M. 197

2005 NMSC 4

STATE of New Mexico, Plaintiff-Petitioner, v. Antonio GRAHAM, Defendant-Respondent.

No. 28,286.

Supreme Court of New Mexico.

March 1, 2005.

Patricia A. Madrid, Attorney General, Patricia A. Gandert, Assistant Attorney General, Santa Fe, NM, for Petitioner.

John Bigelow, Chief Public Defender, William A. O'Connell, Assistant Appellate Defender, Santa Fe, NM, for Respondent.

OPINION

SERNA, Justice.

{1} Following a jury trial, Defendant Antonio Graham was convicted of, among other charges, child abuse, contrary to NMSA 1978, § 30-6-1 (2001). On appeal, the Court of Appeals affirmed Defendant's other convictions but reversed his conviction of child abuse on the basis of insufficient evidence. State v. Graham, 2003-NMCA-127, ¶ 3, 134 N.M. 613, 81 P.3d 556. This Court granted the State's petition for writ of certiorari to the Court of Appeals, and we now reverse.

I. Facts

{2} Defendant lived at the residence of his girlfriend, Amanda Kelly, with their two children, ages one and three. On September 1, 2000, police sought to execute an arrest warrant for Defendant at Kelly's house. Police officers apprehended Defendant outside the house in a truck. With the consent of the owner of the truck, the officers found crack cocaine in a search of the truck. At that point, Kelly stepped out of the house and asked what was happening. The officers smelled a strong odor of burnt marijuana emanating from the house. They obtained a search warrant for the house. Inside, the officers found additional crack cocaine, several plastic bags with marijuana, a marijuana pipe, and a hanging scale in a dresser drawer in the master bedroom. The officers also noticed rolling papers and marijuana residue, including seeds and stems, on top of a different dresser. Additionally, the officers found a marijuana roach on the living-room floor in front of the sofa and a marijuana bud in a crib in the master bedroom. The officers also recovered a plastic sandwich bag with a small amount of marijuana just inside the front door on a table next to a fish tank. The officers saw two infants in the house and noticed that they were in diapers. The house was dirty and untidy, with soiled clothes on the floor throughout the house and unwashed dishes with old food on them. Along with various drug charges, the State charged Defendant with child abuse.

{3} At trial, Officer Lee Wilder testified that the bud is the most desirable part of the marijuana plant that people generally smoke. It is the part of the plant containing a high concentration of tetrahydrocannabinols. Officer Dusty Collins explained that marijuana dries in buds that are broken up and put in bowls or cigarettes to smoke. The bud found in the crib was in one solid piece with the stem.

{4} Kelly testified that she was unaware of the marijuana on the floor of the living room and in the crib. She stated that if the children had ingested the marijuana she believed that they would have become sick. Kelly testified that Defendant told her that the presence of the marijuana on the living room floor and in the baby's crib was his fault and that he was sorry. In response to a question about whether drugs were more important to Defendant than his children, Kelly recited Defendant's statement that his only thoughts were about drinking, smoking dope, selling drugs, and running the streets.

{5} Two witnesses testified that they were inside Kelly's house immediately before Defendant's arrest on September 1, 2000. These witnesses testified that while they were in the living room they saw Kelly's two children running around the house and playing. Officer Collins testified that the marijuana in the living room was accessible to the children. In addition, a photograph of the bud inside the crib was admitted as an exhibit.

II. Standard of Review

{6} "[T]he test to determine the sufficiency of evidence in New Mexico ... is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction." State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). We have explained that this test involves two separate parts. State v. Coffin, 1999-NMSC-038, ¶ 73, 128 N.M. 192, 991 P.2d 477; State v. Sanders, 117 N.M. 452, 456, 872 P.2d 870, 874 (1994). First, "[a] reviewing court must view the evidence in the light most favorable to the state, resolving all conflicts therein and indulging all permissible inferences therefrom in favor of the verdict." Sutphin, 107 N.M. at 131, 753 P.2d at 1319. Second, an appellate court "determines whether the evidence, viewed in this manner, could justify a finding by any rational trier of fact that each element of the crime charged has been established beyond a reasonable doubt." Sanders, 117 N.M. at 456, 872 P.2d at 874 (emphases added).

{7} In setting out the standard for reviewing sufficiency of the evidence, the Court of Appeals stated that "the evidence and inferences drawn from that evidence must be sufficiently compelling so that a hypothetical reasonable factfinder could have reached `a subjective state of near certitude of the guilt of the accused.'" Graham, 2003-NMCA-127, ¶ 12, 134 N.M. 613, 81 P.3d 556 (quoted authority omitted). It is indeed true that the standard of beyond a reasonable doubt has been described as "a subjective state of near certitude of the guilt of the accused." Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This standard has also been described as being beyond "a doubt based upon reason and common sense — the kind of doubt that would make a reasonable person hesitate to act in the graver and more important affairs of life." UJI 14-5060 NMRA 2005. However, in articulating the reasonable doubt standard referenced by the Court of Appeals, the United States Supreme Court emphasized that an appellate court reviewing for sufficiency does not

ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

Id. at 318-19, 99 S.Ct. 2781 (citation, quotation marks, and quoted authority omitted). We have used similar cautionary language: "A reviewing court may neither reweigh the evidence nor substitute its judgment for that of the jury." Sutphin, 107 N.M. at 131, 753 P.2d at 1319. Thus, the question is not whether this Court is convinced of Defendant's guilt beyond "a doubt based upon reason and common sense — the kind of doubt that would make a reasonable person hesitate to act in the graver and more important affairs of life." UJI 14-5060. Rather, the question is whether, viewing all of the evidence in a light most favorable to upholding the jury's verdict, there is substantial evidence in the record to support any rational trier of fact being so convinced. "[S]ubstantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion...." State v. Lujan, 103 N.M. 667, 669, 712 P.2d 13, 15 (Ct.App.1985), quoted in State v. Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661

.

III. Sufficiency of the Evidence

{8} We begin our review of the sufficiency of evidence to support Defendant's conviction with the elements of child abuse. For the form of the crime with which Defendant was charged, the State had the burden of proving beyond a reasonable doubt that Defendant caused a child or children under the age of eighteen to be placed in a situation that may have endangered their life or health and did so with a reckless disregard. Section 30-6-1(A)(3), (D)(1). A reckless disregard requires that Defendant "knew or should have known [his] conduct created a substantial and foreseeable risk, [he] disregarded that risk and ... was wholly indifferent to the consequences of the conduct and to the welfare and safety" of the child or children. UJI 14-604 NMRA 2005.

{9} By including endangerment in Section 30-6-1, the Legislature expressed its intent to extend the crime of child abuse to certain conduct even if the child has not suffered physical harm. State v. Ungarten, 115 N.M. 607, 609, 856 P.2d 569, 571 (Ct.App.1993). "The [L]egislature's decision to criminalize the conduct described by the statute reflects a compelling public interest in protecting defenseless children." Lujan, 103 N.M. at 671, 712 P.2d at 17; accord Santillanes v. State, 115 N.M. 215, 219, 849 P.2d 358, 362 (1993)

. "[C]hildren, who are often times defenseless, are in need of greater protection than adults." State v. Lucero, 87 N.M. 242, 245, 531 P.2d 1215, 1218 (Ct.App.1975). However, in designating the crime as, at a minimum, a third degree felony, Section 30-6-1(E), the Legislature did not intend to criminalize conduct creating "a mere possibility, however remote, that harm may result" to a child. Ungarten, 115 N.M. at 609,

856 P.2d at 571; accord State v. Coe, 92 N.M. 320, 321, 587 P.2d 973, 974 (Ct.App.1978) (rejecting the argument "that because of its negligence requirement the statute covers any and all harm that might befall the child"), overruled on other grounds by Santillanes, 115 N.M. at 225 & n. 7, 849 P.2d at 368 & n. 7. "There must be `a reasonable probability or possibility that the child will be...