State v. Jensen
| Decision Date | 18 October 2005 |
| Docket Number | No. 24,905.,24,905. |
| Citation | 2005 NMCA 140,124 P.3d 1186 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Kevin JENSEN, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
Patricia A. Madrid, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellee.
John Bigelow, Chief Public Defender, Nancy M. Hewitt, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
{1} Defendant Kevin Jensen's house was filthy, filled with animal feces, and was stench-ridden. Rotten food was in the refrigerator. Daily, his fifteen-year-old neighbor, Robbie Stroup, came over to Defendant's filthy house, drank alcoholic beverages excessively, smoked cigarettes, and visited pornographic websites on Defendant's computer. Defendant was charged with two counts of contributing to the delinquency of a minor and one count of child abuse. Defendant was convicted on all three counts and appeals only his child abuse conviction. We reverse.
{2} Chief Deputy Susan Encinias went to the home of Bernice and John Stroup, in Moriarty, New Mexico, on October 28, 2002, regarding a report that the Stroups' fifteen-year-old son Robbie was missing. Defendant and Jeremy Wetherill were there at the time, along with Ms. Stroup. Upon Encinias's request, she and two other deputies went with Defendant to Defendant's house, which was located about five houses from the Stroups' home. Prior to entering Defendant's residence, Defendant and Ben Wetherill, an eighteen-year-old friend of Robbie's, had to move several dogs from the house to the garage. Encinias testified as to the "totally horrible," "filthy," "nasty," and "terrible" conditions inside Defendant's residence. The chief deputy also testified to seeing what she believed was some type of rodent droppings virtually everywhere. Encinias described that when she opened a door to one of the bedrooms, an emu rushed up to her and surprised her just as she stepped in dog feces. Encinias also testified that the stench of Defendant's home "just blew your mind away."
{3} Defendant told Encinias that Robbie was at Defendant's house the prior day, October 27, 2002. That day, according to Defendant, Robbie and Ben cleaned out Defendant's van and also played on the computer. Defendant cooked Robbie some sausage. Defendant and Robbie then went to a haunted house in Albuquerque. They returned at about 8:30 p.m. and Defendant made Robbie a hamburger. Robbie played on the computer some more and then walked home around 10:00 p.m.
{4} On October 29, 2002, a deputy sheriff searched Defendant's house pursuant to a consent signed by Defendant. The deputy found the house with a lot of dog feces on the floor. The deputy seized Defendant's computer. An animal control officer who came to take the emu had to go outside twice to avoid vomiting from the smell. Encinias prepared a criminal complaint, listing charges of contributing to the delinquency of a minor and child abuse.
{5} Photographs of Defendant's home were taken on November 1, 2002, and used at trial. According to Encinias, the condition of Defendant's house had not changed in any substantial way since October 28. In the living room area, there were dog feces, what appeared to be dog vomit on the floor, rat and bird droppings in a cage, and a horrendous stench. In the kitchen there were dog feces and dog vomit. The entire kitchen area, including stove, dishwasher, sink, and counter top, was filthy; areas were littered with dirt and dust, papers, and bottles. A table where Robbie had frequently used a computer was covered with rat or mouse droppings. Black, rotten food was in the refrigerator next to some good hamburger meat. The dining room table was littered with papers, rat droppings, dirt, dust, and spider webs. The baseboards were filthy and looked as though dogs had urinated on them. The bathroom was filthy, too, with coke bottles and a filthy looking plastic soda pop jug with a yellowish orange liquid.
{6} Ben testified that at Defendant's expense, Defendant took him and Robbie to martial arts classes. Defendant would also take them to Albuquerque to restaurants and hobby shops. Ben and Robbie were at Defendant's home every day, but only while Defendant was also home. According to Ben, the house was "one big old pig sty" and Defendant did not clean up after his animals and left trash everywhere. Ben testified that Defendant's six dogs were inside most of the time, doing their "business" there, and that Defendant kept the emu in one of the bedrooms. Robbie spent most of the time in the kitchen and living room area because that was where the computer was located, although Robbie would use the bathroom and also went into the three bedrooms. Defendant cooked hamburgers for Ben and Robbie. Defendant provided beer and whiskey for Ben and Robbie most days through October. Ben would sometimes go with Defendant to a liquor store to buy alcoholic beverages. Ben observed Robbie drink too much and vomit on one of the dogs. Ben was drinking Baccardi 101 and Wild Turkey, and getting drunk every night for two weeks straight in October. Robbie got drunk every time Ben got drunk. Also while at Defendant's house, Robbie smoked cigarettes that Defendant gave him.
{7} An investigator from the attorney general's office retrieved information from Defendant's computer. Robbie used Defendant's computer, with a user identification given to him by Defendant. Robbie went to adult nude websites on the internet every day and often while Defendant sat right beside him. An expert from the attorney general's office determined that Robbie's user identification had been added to Defendant's account. He determined that Robbie's user identification was used to visit various pornographic and other adult websites.
{8} The district court informed the jury that Robbie died after the events at issue in the trial, and that the jury was not to speculate as to the circumstances of Robbie's death. Defendant was convicted of one count of contributing to the delinquency of a minor, based on providing alcoholic beverages; one count of contributing to the delinquency of a minor, based on providing access to pornographic websites; and one count of child abuse by endangerment, based on placing Robbie in a situation dangerous to his health or life. Defendant appeals, asserting that his conduct did not constitute child abuse by endangerment.
{9} In determining whether evidence is sufficient to uphold a conviction, we view the evidence in the light most favorable to the State and indulge all permissible inferences in support of the verdict. State v. Graham, 2005-NMSC-004, ¶ 6, 137 N.M. 197, 109 P.3d 285; State v. Sanders, 117 N.M. 452, 456, 872 P.2d 870, 874 (1994). We make a legal determination whether the evidence viewed in that 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." Graham, 2005-NMSC-004, ¶ 6, 137 N.M. 197, 109 P.3d 285 (quoting Sanders, 117 N.M. at 456, 872 P.2d at 874) (emphasis omitted).
{10} In enacting Article 6 of the Criminal Code, which is entitled Crimes Against Children and Dependents, the Legislature set out crimes of (1) abandonment of a child, (2) abuse of a child, (3) abandonment of a dependent, (4) contributing to the delinquency of a minor, and (5) obstruction of reporting or investigation of child abuse or neglect. NMSA 1978, §§ 30-6-1 to -4 (1963, as amended through 2004). The Legislature defined "child" as "a person who is less than eighteen years of age[.]" § 30-6-1(A)(1). Further, the Legislature made distinctions as to the perpetrators. Only a parent, guardian, or custodian can be prosecuted for abandonment of a child. § 30-6-1(B). Yet "a person" can be prosecuted for child abuse and "any person" can be prosecuted for contributing to the delinquency of a minor. §§ 30-6-1(D), -3.
{11} Commonly referred to as child abuse by endangerment, the crime of which Defendant was convicted proscribes "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[.]" § 30-6-1(D)(1). In the present case, Defendant was charged in the jury instruction only with the "causing" element, and not the "permitting" element, of Section 30-6-1(D). To sustain a conviction under this third degree felony statute, "[t]here must be a reasonable probability or possibility that the child will be endangered." Graham, 2005-NMSC-004, ¶ 9, 137 N.M. 197, 109 P.3d 285 (internal quotation marks and citation omitted). The State does not have to prove that the child suffered physical harm. Id. "However, . . . the Legislature did not intend to criminalize conduct creating a mere possibility, however remote, that harm may result to a child." Id. (internal quotation marks and citation omitted).
{12} 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. See State v. Carnes, 97 N.M. 76, 79, 636 P.2d 895, 898 (Ct.App.1981). To "endanger" is "to bring into danger or peril" or "to create a dangerous situation." Merriam-Webster's Collegiate Dictionary 380 (10th ed.2002). Black's Law Dictionary defines "child endangerment" as "[t]he putting of a child in a place or position that exposes him or her to danger to life or health." Black's Law Dictionary 189 (7th ed.2000).
{13} A defendant may be convicted when his actions are negligent, judged under a criminal negligence standard. Criminal negligence, as defined in Section 30-6-1(A)(3), "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." See also State v. Castaneda, 2001-NMC...
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State v. Jensen
...N.M. 197, 109 P.3d 285, as injecting an inquiry into the "child's susceptibility to harm." State v. Jensen, 2005-NMCA-140, ¶ 16, 138 N.M. 647, 124 P.3d 1186. The Court of Appeals reversed Defendant's conviction, concluding that the evidence "does not portray a defenseless child too young to......