State v. Webb

• Decision Date: 12 December 2012
• Docket Number: No. 31,577.,31,577.
• Citation: 296 P.3d 1247
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Harla WEBB, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

296 P.3d 1247

STATE of New Mexico, Plaintiff–Appellee,

v.Harla WEBB, Defendant–Appellant.

No. 31,577.

Court of Appeals of New Mexico.

Dec. 12, 2012.

Gary K. King, Attorney General, Olga Serafimova, Assistant Attorney General, Santa Fe, NM, Sri Mullis, Assistant Attorney General, Albuquerque, NM, for Appellee.

Jacqueline L. Cooper, Chief Public Defender, Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

GARCIA, Judge.

{1} Defendant Harla Webb signed the written consent form to allow a piercing to occur on a minor without obtaining authorization or permission from the minor's parent or legal guardian. Though the piercing was successful, the minor sustained serious injuries as a result of an accidental fall in the tattoo parlor. Defendant appeals her convictions for child abuse by endangerment without great bodily harm and contributing to the delinquency of a minor. We affirm Defendant's conviction for contributing to the delinquency of a minor but reverse her conviction for child abuse by endangerment because the State did not present sufficient evidence from which the jury could find that Defendant's conduct created a substantial and foreseeable risk of harm.

BACKGROUND

{2} On May 20, 2009, Defendant picked up her daughter, Steffanie, and two of her daughter's friends, including fifteen-year-old Nicole, from Ruidoso Middle School. Defendant and Nicole were not related and had never previously met. Steffanie and Nicole had arranged for Nicole to be picked up by Defendant because Steffanie was going to get her belly button pierced and Nicole wanted to get her tongue pierced.

{3} Defendant drove the girls to Tre's Tattoo Studio in Ruidoso. Nicole told Defendant that her mother, Jennifer “Michelle” Pino, had given her permission to have her tongue pierced, but this was not true. Nicole had sufficient cash to pay for the piercing, which Defendant believed meant that Nicole's mother had given her permission. Defendant did not contact Nicole's mother.

{4} When they arrived at Tre's Tattoo Studio, the owner, Joe “Tre” Garcia, provided Steffanie and Nicole with a piercing record and release form (Release Form). Nicole completed the top portion of the Release Form, providing her name, contact information, age, and date of birth. She indicated that she did not have any allergies, history of bleeding, or blood borne irregularities. In accordance with New Mexico law, 16.36.5.11 NMAC (5/16/2008), the Release Form required a parent or legal guardian to consent to a minor's piercing. The Release Form states:

A person may not perform a piercing on a minor without the consent of the minor's parent or legal guardian, and an establishment may not perform a piercing on a minor under the age of 18 unless the minor is accompanied by a (Parent or Legal Guardian). I authorize the piercing described to be performed on my child.

Defendant printed her name and signed as Nicole's parent or legal guardian.

{5} There was conflicting testimony surrounding Defendant's act of signing Nicole's Release Form. Garcia testified that he asked Defendant whether Steffanie and Nicole were her daughters and Defendant answered, “Yes.” He said that if Defendant had told him that she was not related to Nicole, he would not have performed the piercing. Defendant testified that she did not present herself as Nicole's mother or guardian. She said she signed the Release Form because Garcia told her to sign it and she “didn't think it was that big of a deal.”

{6} Nicole received a tongue piercing without complications. She then sat on a chair to watch Steffanie receive her piercing. Before Steffanie received her piercing, Nicole passed out and hit the tile floor face first. She was unconscious for approximately ten to fifteen seconds. When she woke up, she looked in the mirror and saw blood “gushing everywhere.” She noticed one of her teeth was missing and two were damaged. She had bruising on her face and body and was “in a lot of pain.”

{7} Nicole testified that Defendant did not offer to call 911 or take her to the hospital. Garcia testified that Defendant did not try to help Nicole in any way and told Garcia that it was a good thing she was taking Nicole to the dentist the next day. Defendant testified that she wanted to call 911 or take Nicole to the hospital but Nicole said she was okay. Defendant testified that Nicole appeared to have “a couple chipped teeth” but “seemed fine.”

{8} Defendant left the tattoo parlor with the children and drove Nicole home. When they arrived at Nicole's house, Steffanie walked Nicole to her front door but did not go inside. Defendant did not exit the car and did not inform anyone about the piercing or the accident. Nicole told her mother's boyfriend that she fell down. When Nicole's mother arrived home from work, she observed bruises on Nicole's face and damage to Nicole's mouth and teeth. Nicole told her mother she had passed out after school. Nicole's mother made an emergency dental appointment for the next morning. Later that night, Nicole told her mother the truth about her fall and the piercing. Nicole's mother called Steffanie's cell phone and asked to speak to Defendant. Defendant did not come to the phone and did not return the phone call.

{9} On May 21, Nicole's mother took Nicole to a dentist in Alamogordo. The damage to Nicole's teeth was more extensive than anyone suspected. As of October 2011, Nicole had received three root canals and four sets of temporary teeth and still needed additional treatment. She received penicillin during the course of her treatment and discovered, for the first time, that she was allergic to the drug. Because she missed so many days of school, Nicole was forced to drop out and, at the time of the trial, was working to obtain her GED. She testified her mouth was “always in pain.”

{10} Garcia was the only witness who testified about the risks of tongue piercing. He testified as follows:

Q: Now, are there any risks involved?

A: Not really. It's rare that ... you hear a lot of ... people ... say that you'll hit a vein. You won't. Your veins run on the side of your tongue. In the rare occasion, every one in 100, one in 150, has that vein in the middle and you can't do it.

Q: Okay. What about for infections and things of that nature? Is there a risk?

A: We tell you how to take care of it.... If you don't take care of it, it's gonna get infected, like anything else.

Q: So, ... so you're saying, there is a risk?

A: Oh, yes, ma'am. There's a risk with anything, with an ear piercing, a tattoo, ... eyebrow piercing, a tongue piercing, all of it.

Q: Okay. Alright, so are there any other types of risk involved?

A: Just infection. Infection is the main risk.

He testified that in his approximately twenty years of doing piercings, he had never seen someone faint from a piercing before Nicole.

{11} Defendant was charged by way of criminal information with three counts: (1) abandonment of a child resulting in great bodily harm; (2) forgery; and (3) contributing to the delinquency of a minor (CDM). The State filed a nolle prosequi on the forgery count prior to trial. A jury trial was held on November 18, 2010. Defense counsel moved for a directed verdict at the close of the State's case. The district court denied the motion. Defense counsel renewed the motion at the close of the evidence and the court again denied the motion.

{12} The jury was instructed on child abuse with and without great bodily harm. To find Defendant guilty of child abuse without great bodily harm, the State had to prove beyond a reasonable doubt, inter alia:

1. [Defendant] caused Nicole ... to be placed in a situation which endangered the life or health of Nicole;

2. [D]efendant acted with reckless disregard and without justification. To find that [Defendant] acted with reckless disregard, you must find that ... [D]efendant knew or should have known [D]efendant's conduct created a substantial and foreseeable risk, ... [D]efendant disregarded that risk and [D]efendant was wholly indifferent to the consequences of the conduct and to the welfare and safety of Nicole[.]

{13} The jury was instructed that, to find Defendant guilty of CDM, the State had to prove beyond a reasonable doubt, inter alia:

1. [D]efendant took the child to have a piercing and signed the consent for the procedure without conferring with [Nicole's] parent and/or ... [D]efendant did not seek medical treatment for the child and/or notify [Nicole's] parent of [Nicole's] injuries.

2. This caused and/or encouraged Nicole ... to refuse to obey the reasonable and lawful commands or directions of her parent a person who had lawful authority over Nicole ... [OR] conduct herself in a manner injurious to her morals and/or health and/or welfare of Nicole.

The jury found Defendant guilty of child abuse without great bodily harm and CDM.

DISCUSSION

{14} On appeal, Defendant challenges the sufficiency of the evidence to support her conviction. “[O]ur review for sufficiency of the evidence is deferential to the jury's findings.” State v. Garcia, 2011–NMSC–003, ¶ 5, 149 N.M. 185, 246 P.3d 1057. We review direct and circumstantial evidence “in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.” Id. (internal quotation marks and citation omitted). We must, however, scrutinize “the evidence and supervision of the jury's fact-finding function to ensure that, indeed, a rational jury could have found beyond a reasonable doubt the essential facts required for a conviction.” State v. Rojo, 1999–NMSC–001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and citation omitted).

A. Child Abuse by Endangerment

{15} Defendant was convicted of child abuse by endangerment pursuant to NMSA 1978, Section 30–6–1(D)(1) (2009), which defines the offense as “knowingly, intentionally or negligently, and without justifiable cause,...