State v. Trossman

Decision Date22 June 2009
Docket NumberNo. 31,010.,31,010.
Citation2009 NMSC 034,212 P.3d 350
PartiesSTATE of New Mexico, Plaintiff-Respondent, v. Brigette TROSSMAN, Defendant-Petitioner.
CourtNew Mexico Supreme Court

Hugh W. Dangler, Chief Public Defender, Nancy M. Hewitt, Appellate Defender, Santa Fe, NM, for Petitioner.

Gary K. King, Attorney General, Max Shepherd, Assistant Attorney General, Santa Fe, NM, for Respondent.

OPINION

CHÁVEZ, Chief Justice.

{1} Defendant Brigette Trossman was convicted of negligently permitting child abuse by endangerment, contrary to NMSA 1978, Section 30-6-1(D) (2004, prior to amendments in 2005),1 after she was arrested in a house in Chapparal, New Mexico, where chemicals and equipment involved with methamphetamine production were found and the evidence suggested that her child lived there with her. In addition to the normal instruction for negligently permitting child abuse, Jury Instruction No. 4 provided that:

Evidence that demonstrates that a child has been knowingly, intentionally or negligently allowed to enter or remain in a motor vehicle, building or any other premises that contains chemicals and equipment used or intended for use in the manufacture of a controlled substance may be deemed evidence of abuse of the child.

Defendant appealed her conviction to the Court of Appeals, arguing (1) that this instruction undermined the jury's responsibility to find all of the essential elements of her charge, and (2) that there was insufficient evidence to support her conviction. State v. Trossman, No. 26,576, mem. op. at 2 (N.M.Ct.App. Feb. 28, 2008). The Court of Appeals rejected these arguments, id., and Defendant sought a writ of certiorari from this Court. The Court granted certiorari on both issues. State v. Trossman, 2008-NMCERT-004, 144 N.M. 48, 183 P.3d 933 (table).

{2} We reverse the Court of Appeals on both issues. First, we hold that Jury Instruction No. 4, which constituted an evidentiary presumption under our Rules of Evidence, was erroneous because a reasonable juror could have concluded that he or she was not required to find the essential element of endangerment beyond a reasonable doubt. Second, we conclude that there was insufficient evidence to support Defendant's conviction of child abuse. Defendant's conviction is therefore vacated.

BACKGROUND

{3} The facts in this case are not in dispute. Responding to reports of suspicious purchases of pseudoephedrine, police followed Billy Glenn, later a co-defendant in this case, as he and several unidentified adults made additional purchases of ephedrine and matches, both possible methamphetamine precursors. Glenn was observed entering a house carrying several bags. Police watched the house that evening and then left for approximately thirty-six hours, during which time they obtained a search warrant. When the warrant was executed, police apprehended Defendant, Glenn, and one other female. Inside the house police found fifty-three items consistent with the presence of a methamphetamine lab.2 One officer also observed what appeared to be a child's room, although he admitted during cross-examination that he had no personal knowledge about who lived there or whether a child had been present at any particular time. However, a social worker who took jurisdiction over Defendant's child after the raid later testified that Defendant had told her that Defendant's child lived at the house. The social worker also testified that the child had been absent on the night before the raid, and that she had not asked whether the child had been absent on any previous nights.

{4} Defendant was charged with violating Section 30-6-1, which at that time provided in relevant part that:

D. Abuse of a child 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. ...

F. Evidence that demonstrates that a child has been knowingly, intentionally or negligently allowed to enter or remain in a motor vehicle, building or any other premises that contains chemicals and equipment used or intended for use in the manufacture of a controlled substance shall be deemed prima facie evidence of abuse of the child.

{5} At the end of Defendant's trial, Defendant moved for a directed verdict on the grounds that there was no evidence "to show that the child was in the proximity or could have been exposed to [dangerous chemicals and equipment]." The motion was denied. The parties proceeded to discuss proposed jury instructions and agreed on an instruction on negligently permitting child abuse under Section 30-6-1(D) based on UJI 14-605 NMRA that read as follows:

INSTRUCTION NO. 3[.]

[Defendant] has been charged with negligently permitting child abuse which did not result in death or great bodily harm. For you to find [Defendant] guilty of child abuse which did not result in death or great bodily harm, as charged in the Grand Jury Indictment, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:

1. [Defendant] permitted [her child] to be placed in a situation which endangered the life or health of [her child];

2. The defendant acted with reckless disregard. To find that [Defendant] acted with reckless disregard, you must find that [Defendant] knew or should have known the defendant's conduct created a substantial and foreseeable risk, the defendant disregarded that risk and the defendant was wholly indifferent to the consequences of the conduct and to the welfare and safety of [her child][;]

3. [Defendant] was a parent, guardian or custodian of the child, or the defendant had accepted responsibility for the child's welfare;

4. [Defendant's child] was under the age of 18;

5. This happened in New Mexico on or about August 12, 2004.

In addition, the State proposed an instruction with the exact wording of Section 30-6-1(F).3 The attorneys for Defendant and her co-defendant objected that such an instruction violated their clients' rights to due process because "innocent activity could be construed to meet the elements of this statute[;]" that the instruction was improper because it could not yet be found in the UJI; and that the instruction would prevent the jury from finding all of the required elements of child abuse. The judge suggested modifications to the language of Section 30-6-1(F), and notwithstanding renewed objections, the jury was eventually instructed on the judge's modified version of the statute:

INSTRUCTION NO. 4.

Evidence that demonstrates that a child has been knowingly, intentionally or negligently allowed to enter or remain in a motor vehicle, building or any other premises that contains chemicals and equipment used or intended for use in the manufacture of a controlled substance shall [may] be deemed prima facie evidence of abuse of the child.

Defendant was convicted.

{6} Defendant appealed, continuing to claim that the instruction was flawed and the evidence was insufficient to convict her. Trossman, No. 26,576, mem. op. at 2. The Court of Appeals affirmed the conviction. Id. at 8. First, the Court held that Jury Instruction No. 4 was proper because it "simply gave an alternative definition of what can constitute placing a child in a dangerous situation. It did not mandate a conviction ...." Id. Second, the Court held that the evidence was sufficient to support Defendant's conviction because there was testimony that her child lived in the house and that being present around the chemicals was dangerous. Id. at 5-6. We reverse the Court of Appeals and vacate Defendant's conviction.

DISCUSSION
I. JURY INSTRUCTION NO. 4 COULD HAVE CONFUSED OR MISDIRECTED A REASONABLE JUROR

{7} Defendant argues that Jury Instruction No. 4 "mandated a conviction" of child abuse because it "took away an element from the jury's determination-the element of whether the defendant's actions of having a variety of lawful materials in her house amounted to child abuse." In support of this argument, Defendant cites to a series of cases including State v. Parish, 118 N.M. 39, 878 P.2d 988 (1994), which concern the failure of trial courts to instruct juries on all of the essential elements of the crime charged. The State responds that since the Legislature "has gone to the trouble of providing a specific definition of a type of child abuse by endangerment" under Section 30-6-1(F), it was not error for the trial court to instruct on that basis. The State contends that Jury Instruction No. 4 did nothing more than create "a permissive inference," which did not violate Defendant's rights because it was rational for the jury to "make ... the inference set forth in the challenged instruction, i.e., that allowing a child to be in a methamphetamine house is inherently dangerous to the child's health and well being." The Court of Appeals agreed with the State, holding that Section 30-6-1(F) created "an alternative definition" of child abuse and that nothing prevented the jury from being instructed on that basis, particularly given the alterations made by the trial court. Trossman, No. 26,576, mem. op. at 8.

{8} In Parish, 118 N.M. at 41-42, 878 P.2d at 990-91, we explained that jury instructions can be defective in three ways: (1) they can be facially erroneous, requiring reversal; (2) they can be vague, in which case the court must "evaluate whether another part of the jury instructions satisfactorily cures the ambiguity[;]" and (3) they can be contradictory, requiring reversal because "there is no way to determine whether the jury followed the correct or the incorrect instruction." Whatever the case, the ultimate concern of the reviewing court must be whether "a reasonable juror would have been confused or misdirected." Id. at 42, 878 P.2d at 991. To determine whether Jury Instruction No. 4 was erroneous under the standards enunciated in Parish, we must first resolve the conflict between the...

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