State v. Ungarten

Decision Date10 June 1993
Docket NumberNo. 14039,14039
Citation1993 NMCA 73,856 P.2d 569,115 N.M. 607
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. George UNGARTEN, Defendant-Appellant.
CourtCourt of Appeals of New Mexico
OPINION

DONNELLY, Judge.

Defendant appeals his conviction of child abuse (no death or great bodily harm) following a jury trial. Two issues are presented on appeal: (1) whether the charge of child abuse was supported by substantial evidence; and (2) whether the trial court erred in instructing the jury as to the elements of child abuse where Defendant has asserted a claim of self-defense. For the reasons discussed herein, we reverse.

FACTS

The events giving rise to this case grew out of an altercation between Defendant and his neighbors. Defendant and Mary Hooper, Defendant's girlfriend and housemate, lived in one side of a duplex; the nearly eleven-year-old child, alleged to have been the victim of child abuse, and the child's mother lived in the adjoining duplex. On May 4, 1991, Defendant rebuked the child and told him in a stern manner to keep the gate to the back yard closed. The child reported this admonition to his mother, saying, " 'George scared me,' " and " 'He just scared me real bad.' " The mother, accompanied by the child, went next door to speak to Defendant about the incident. She knocked on Defendant's front door but got no response.

At this point, the child's father drove up and the mother informed her ex-husband that her neighbor had frightened their son. The child's father then went to Defendant's front door and began knocking on the door. Defendant was unable to find the key to open his front door and both he and the child's father exchanged profane remarks through the locked door. Hooper testified that the child's father threatened Defendant and demanded that Defendant open the door. Shortly thereafter, Defendant exited the house through the back door carrying a knife. Defendant testified he took the knife for self-defense. Defendant demanded that the child and the child's parents leave the property, and began gesturing with the knife in an angry manner. During the course of the argument, the father picked up a tree limb. Hooper testified that the father voiced threats toward Defendant and that she telephoned the police. Defendant testified that when he first exited his house he held the knife at his side, and that he only raised the knife after he had been struck on the arm with a tree limb picked up by the child's father.

In contrast to the testimony presented by Defendant, the child's mother and father testified that, as the incident progressed, Defendant became more agitated and began waving the knife around in a threatening manner, thereby menacing both the child and his parents; and that Defendant used the knife to cut at a trellis and vines near the front porch of his residence.

The child testified that his father held the tree limb in front of his body and fended off "[o]ne or two" jabs by Defendant. Although the child was not physically harmed by Defendant, the child testified that at one point during the altercation the knife wielded by Defendant came close to his body. The child testified that Defendant waved the knife around and he felt "like my body and life was in danger." During most of the confrontation, the child was standing several feet behind his father and was later directed to get inside the father's van that was parked in the street. When Defendant drew back toward his house, the child's father followed him back to the porch, trying to get Defendant to come out from the front of his residence.

Witnesses at the trial included the child, the child's father and mother, two neighbors, Defendant, Hooper, and four police officers. Testimony of the neighbors corroborated the fact that Defendant was acting in a loud, angry, and belligerent manner toward the child's father. Defendant testified that during the events in question his attention was focused on the child's father, not the child, and he denied endangering or harming the child.

After the police arrived, Defendant was arrested and charged with three counts of aggravated assault (consisting of one count each against the child, the father, and the mother), and one count of child abuse. Following a jury trial, the jury acquitted Defendant of each of the three counts of aggravated assault on the child and his parents, but convicted Defendant of child abuse.

I. SUFFICIENCY OF THE EVIDENCE

Defendant argues that since the child was not physically injured or touched by him during the events in question, there was insufficient evidence to establish that he threatened or endangered the child so as to warrant submission of the charge of child abuse to the jury.

In reviewing a challenge to the sufficiency of the evidence to support a criminal conviction, we review the record to determine whether substantial evidence, either direct or circumstantial, exists such that a rational jury could have found proof beyond a reasonable doubt of facts with respect to every element essential to a conviction. State v. Garcia, 114 N.M. 269, 273-74, 837 P.2d 862, 866-67 (1992); see also State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). In applying this standard we view the evidence in a light most favorable to the State, resolving all conflicts therein and indulging all permissible inferences in favor of the verdict of the jury. State v. Cotton, 109 N.M. 769, 771, 790 P.2d 1050, 1052 (Ct.App.), cert. denied, 109 N.M. 751, 790 P.2d 1032 (1990).

NMSA 1978, Section 30-6-1(C) (Cum.Supp.1992) has been characterized as a strict liability statute. State v. Leal, 104 N.M. 506, 509, 723 P.2d 977, 980 (Ct.App.1986). Proof of criminal intent is not required to establish the crime of child abuse. State v. Fuentes, 91 N.M. 554, 557, 577 P.2d 452, 455 (Ct.App.), cert. denied, 91 N.M. 610, 577 P.2d 1256 (1978). A defendant may also be convicted of child abuse, even though the child does not suffer a physical injury. See Sec. 30-6-1(C)(1) (child abuse may exist where a defendant places a child "in a situation that may endanger the child's life or health"); see also People v. Harris, 239 Cal.App.2d 393, 48 Cal.Rptr. 677, 680-81 (1966) (actual injury to a child need not be proven where a statute declares it a crime to cause or permit a child to be placed in a situation dangerous to the child's life or health); see generally Milton Roberts, Annotation, Validity and Construction of Penal Statute Prohibiting Child Abuse, 1 A.L.R.4th 38, Sec. 15(c), at 86 (1980).

In order to prove the offense under Section 30-6-1(C)(1), the State is required to prove beyond a reasonable doubt that Defendant "knowingly, intentionally or negligently, and without justifiable cause, ... placed [the child] in a situation that may endanger the child's life or health[.]" (Emphasis added.) The term "may," as used in Section 30-6-1(C)(1), does not connote a mere possibility, however remote, that harm may result from Defendant's acts; instead, we conclude that the legislature intended the phrase "may endanger" to convey a more restrictive meaning in child abuse cases, i.e., "a reasonable probability or possibility" that the child will be endangered. See State v. Fisher, 230 Kan. 192, 631 P.2d 239, 242 (1981) (word "may" as used in Kansas child abuse statute given restrictive construction, indicating reasonable probability or likelihood the child would be placed in situation whereby that child's life or health will be endangered); cf. State v. Roybal, 115 N.M. 27, 33, 846 P.2d 333, 340 (Ct.App.), cert. denied, 114 N.M. 550, 844 P.2d 130 (1992) (where the defendant left his child in his car with his wife while he bought a minor amount of heroin nearby, there was insufficient evidence to indicate that the child, from mere proximity to the drug transaction, "was in fact placed in danger" to support child abuse conviction).

Both the child and his parents testified that Defendant brandished the knife in a threatening and menacing manner. The child also testified that, at the beginning of the altercation, he was standing by his father and Defendant thrust the knife in such manner that he could not discern whether it was directed at him or his father.

Under the standard of review and statutory analysis discussed herein, we think reasonable minds could differ on whether Defendant's acts placed the child in a situation whereby a reasonable probability existed that the child's life or health would be endangered. Cf. State v. Gonzales, 95 N.M. 636, 639, 624 P.2d 1033, 1036 (Ct.App.) (conflicts in evidence and weight to be accorded to the testimony of witnesses are to be resolved by finder of facts), overruled on other grounds by Buzbee v. Donnelly, 96 N.M. 692, 634 P.2d 1244 (1981). Thus, we conclude that Defendant's claim of lack of substantial evidence to support the charge of child abuse is without merit and the trial court did not err in submitting this issue to the jury. Resolution of this issue, however, is not determinative of Defendant's guilt or innocence as to the charge of child abuse. We also address Defendant's second issue relating to the propriety of the instructions.

II. REJECTION OF REQUESTED JURY INSTRUCTION

Defendant tendered a proposed jury instruction that his acts in carrying and brandishing a knife during the incident in question were done in self-defense and that "[t]here was an appearance of immediate danger of bodily harm to the [D]efendant as a result of [the child's father] picking up a club or stick to be used as a weapon and ... striking [Defendant] with the weapon[.]" Although the trial court gave another requested defense instruction relating to Defendant's claim of self-defense to the charge of aggravated assault upon the child's father, the court refused Defendant's proposed self-defense instruction...

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