{ "id": 12168172, "name": "STATE OF NEW MEXICO, Plaintiff-Petitioner, v. JENNIFER STEPHENSON, Defendant-Respondent", "name_abbreviation": "State v. Stephenson", "decision_date": "2016-09-26", "docket_number": "Docket No. S-1-SC-35035", "first_page": "773", "last_page": "785", "citations": [ { "type": "official", "cite": "2017-NMSC-002" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "54 N.M. 184", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1581989 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/54/0184-01" ] }, { "cite": "1950-NMSC-023", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0 }, { "cite": "87 N.M. 394", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2831770 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/87/0394-01" ] }, { "cite": "1975-NMCA-033", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0 }, { "cite": "2005-NMSC-004", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 929169 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0197-01" ] }, { "cite": "2010-NMSC-002", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4245249 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 2" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0542-01" ] }, { "cite": "2014-NMCERT-008", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "108 N.M. 98", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592857 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/108/0098-01" ] }, { "cite": "331 P.3d 930", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2014-NMCA-088", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4239960 ], "pin_cites": [ { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm-app/6/0503-01" ] }, { "cite": "87 N.M. 345", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2830850 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/87/0345-01" ] }, { "cite": "1975-NMSC-013", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0 }, { "cite": "87 N.M. 474", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2831089 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/87/0474-01" ] }, { "cite": "1975-NMSC-029", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0 }, { "cite": "332 P.3d 850", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2014-NMSC-030", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4239919 ], "pin_cites": [ { "page": "\u00b6 35" } ], "opinion_index": 0, "case_paths": [ "/nm-app/6/0532-01" ] }, { "cite": "121 N.M. 38", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566569 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/121/0038-01" ] }, { "cite": "1995-NMSC-073", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0 }, { "cite": "2000-NMCA-085", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1217150 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 14-20" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0547-01" ] }, { "cite": "363 P.3d 1187", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2016-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 12166501 ], "pin_cites": [ { "page": "\u00b6 33" } ], "opinion_index": 0, "case_paths": [ "/nm-app/9/0100-01" ] }, { "cite": "104 N.M. 506", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594993 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/104/0506-01" ] }, { "cite": "1986-NMCA-075", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 14" } ], "opinion_index": 0 }, { "cite": "2010-NMSC-020", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4247843 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0381-01" ] }, { "cite": "1997-NMSC-060", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 18088 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 27" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0346-01" ] }, { "cite": "2006-NMSC-008", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2542655 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0167-01" ] }, { "cite": "100 N.M. 498", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588679 ], "weight": 3, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0498-01" ] }, { "cite": "1983-NMSC-092", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0 }, { "cite": "103 N.M. 667", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711384 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/103/0667-01" ] }, { "cite": "1985-NMCA-111", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0 }, { "cite": "2010-NMSC-026", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4246809 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0305-01" ] }, { "cite": "2004-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 77119 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0768-01" ] }, { "cite": "285 U.S. 518", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1175332 ], "year": 1932, "opinion_index": 0, "case_paths": [ "/us/285/0518-01" ] }, { "cite": "109 N.M. 44", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590289 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/109/0044-01" ] }, { "cite": "1989-NMCA-071", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0 }, { "cite": "2009-NMSC-035", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4244712 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0434-01" ] }, { "cite": "285 P.3d 604", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMSC-030", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4188568 ], "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm-app/2/0449-01" ] }, { "cite": "121 N.M. 111", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566678 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/121/0111-01" ] }, { "cite": "1995-NMSC-079", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0 }, { "cite": "2015-NMCERT-001", "category": "reporters:neutral", "reporter": "NMCERT", "weight": 2, "opinion_index": 0 }, { "cite": "346 P.3d 409", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2015-NMCA-038", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4241602 ], "weight": 6, "pin_cites": [ { "page": "\u00b6\u00b6 23, 25" }, { "page": "\u00b6 15" }, { "page": "\u00b6 15" }, { "page": "\u00b6 16" }, { "page": "\u00b6\u00b6 15-16" }, { "page": "\u00b6 23" } ], "opinion_index": 0, "case_paths": [ "/nm-app/7/0545-01" ] }, { "cite": "2008-NMSC-016", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3784862 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 26" } ], "opinion_index": 1, "case_paths": [ "/nm/143/0606-01" ] } ], "analysis": { "cardinality": 1404, "char_count": 39185, "ocr_confidence": 0.762, "pagerank": { "raw": 5.647526417808123e-08, "percentile": 0.3524840637427124 }, "sha256": "b92bef29af134ffe5229e56b0e3d36b27e0d0f1c521b1b78abe5e0b36cc8e150", "simhash": "1:bdf9eca7ed6b1e59", "word_count": 6348 }, "last_updated": "2023-07-14T21:58:07.326433+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Michael E. Vigil, District Judge", "EDWARD L. CH\u00c1VEZ, Justice", "CHARLES W. DANIELS, Chief Justice", "BARBARA J. VIGIL, Justice", "JUDITH K. NAKAMURA, Justice, concurring in part and dissenting in part", "PETRA JIMENEZ MAES, Justice, joining in special concurrence and dissent", "JUDITH K. NAKAMURA, Justice", "PETRA JIMENEZ MAES, Justice" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Petitioner, v. JENNIFER STEPHENSON, Defendant-Respondent." ], "opinions": [ { "text": "OPINION\nCH\u00c1VEZ, Justice.\n{1} D efendant Jennifer Stephenson placed her two-year-old son Isaiah in his room at bedtime and locked the door for the night. Isaiah\u2019s father heard Isaiah whimpering the next morning and found him with his legs pinned between a dresser and a crossbar on Isaiah\u2019s bed. Isaiah developed a painful condition described as compartment syndrome, which required an aggressive surgery to correct. A jury convicted Defendant of one count of abandonment of a child resulting in great bodily harm, a second-degree felony, contrary to NMSA 1978, Section 30-6-l(B) (2009), after being unable to find that Defendant committed child abuse by failing to act for Isaiah\u2019s welfare and safety, contrary to Section 30-6-l(D). The Court of Appeals reversed Defendant\u2019s conviction, holding that her conduct did not fall within the meaning of \u201cleaving or abandoning\u201d because she did not leave Isaiah with the intent not to return. State v. Stephenson, 2015-NMCA-038, \u00b6\u00b6 23, 25, 346 P.3d 409. We granted the State\u2019s petition for writ of certiorari to determine whether the Court of Appeals\u2019 definition of \u201cleaving or abandoning\u201d was correct and whether the evidence was sufficient as a matter of law to support the conviction. 2015-NMCERT-001.\n{2} We conclude that the Legislature intended the crime of abandonment of a child under Section 30-6-l(B) to include the situations (1) where a parent intentionally leaves a child with the intent not to return, whereby the child may or does suffer neglect, which would constitute \u201cabandoning\u201d; and (2) where a parent or other caregiver intentionally departs from a child, leaving the child under circumstances whereby the child may or does suffer neglect, which would constitute \u201cleaving.\u201d Thus, we interpret Section 30-6-1(B) differently than the Court of Appeals. The dissent offers a third interpretation of Section 30-6-l(B) \u2014 as causing a child to remain in some specified condition \u2014 which we interpret to be consistent only with the crime of permitting child abuse by failing to act for the child\u2019s safety, a crime that the jury rejected. Perhaps the most important lesson from this case is that the Legislature must clarify its intent with respect to the crime of child abandonment. Nevertheless, we agree with the Court of Appeals that Defendant could not be found guilty of abandoning Isaiah because there is no evidence that Defendant intentionally left Isaiah with the intent not to return. We also conclude that there was not sufficient evidence to support the finding that Defendant intentionally departed from Isaiah, leaving him under circumstances where Isaiah might have or did suffer neglect \u2014 where his well-being was at risk of harm. We therefore reverse Defendant\u2019s conviction and remand for an entry of a judgment of acquittal.\nBACKGROUND\n{3} Anthony Apodaca, Isaiah\u2019s father, worked the late night shift until 1:30 a.m. the morning of January 28, 2010. Anthony arrived at Defendant\u2019s apartment at approximately 2:00 a.m., and because the door was locked, he knocked to awaken Defendant to let him into the apartment. Anthony was hungry, so he asked Defendant to go to McDonald\u2019s to get him some food. Meanwhile Anthony went into his daughter Neveah\u2019s room and found her awake on the floor outside her crib, so he picked her up to feed her a bottle of milk. He did not check on Isaiah, his son, because he assumed that Isaiah was asleep and Anthony did not want to disturb him. Isaiah had been locked in his room for the night.\n{4} After Defendant returned with food from McDonald\u2019s, Anthony shared his food with Neveah before putting her back to sleep in her crib. Anthony asked Defendant to check on Isaiah. Defendant told Anthony that Isaiah was f\u00edne, but it is not clear whether she actually checked on him, although in her statement to the police, Defendant said that Isaiah was asleep when she checked on him at 2:30 a.m. Anthony did not check on Isaiah that night. Both parents went to sleep and did not leave the apartment after Defendant returned from McDonald\u2019s. There is no evidence that the parents heard Isaiah crying or screaming when they went to bed or in the middle of the night. Anthony testified that he woke up in the middle of the night and did not hear Isaiah crying or screaming.\n{5} Anthony woke up the next morning around 7:00 a.m. and heard Isaiah whimpering, so he unlocked Isaiah\u2019s bedroom door and saw Isaiah pinned between a dresser and a crossbar from his toddler bed. Anthony could tell that Isaiah\u2019s legs were swollen and reddish purple and that he was in pain. Defendant took Isaiah to the hospital after picking up her father, Calvin Stephenson, on the way to the hospital. Calvin testified that Isaiah whimpered but did not cry on the way to the hospital.\n{6} Dr. Meher Best was the first doctor to see Isaiah at the hospital and he could immediately tell that Isaiah was in pain. Isaiah\u2019s lower extremities were unusually hard with strange marks and lesions that later proved to be pressure lesions from being pinned for a prolonged time. Isaiah did not have bruises or broken bones which Dr. Best would have expected to see if a toddler suffered a crush injury from a dresser. By the time Isaiah was in the emergency room, he was \u201cinconsolable.\u201d\n{7} Isaiah was diagnosed with compartment syndrome of both legs as a result of being pinned between the dresser and the crossbar on his toddler bed. There is no evidence as to how the dresser actually fell on Isaiah, although Anthony testified that Isaiah liked to climb on furniture.\n{8} Compartment syndrome usually results from a crush injury that can be limb- or even life-threatening. Several medical doctors testified that compartment syndrome takes hours to develop. The orthopedic surgeon who treated Isaiah testified that he thought Isaiah would have had to have been trapped for at least \u201ceight to twelve hours and, more likely, twenty-four hours.\u201d The pediatric intensive care doctor testified that she thought Isaiah would have been trapped for \u201ca minimum of six to twelve hours.\u201d The doctors agreed that it was extremely rare to see compartment syndrome in a child.\n{9} Isaiah underwent a fasciotomy, which is a surgery performed by slicing open the legs, removing the dead muscle tissue, and leaving the swollen muscles exposed outside of the skin until the muscles recede back into their respective compartments. Once the muscles recede, skin grafts are required to replace the skin that was removed during the fasciotomy. Isaiah needed a walker to help him walk for some time and his lower legs will be disfigured for the rest of his life.\n{10} Dr. Best reported Defendant to the authorities for potential child abuse because although Defendant was polite, Dr. Best thought Defendant\u2019s reaction to her child being in such serious condition was too casual. Defendant was indicted for negligently causing, or in the alternative, negligently permitting Isaiah to be placed in a situation which endangered his life or health, when Defendant knew or should have known of the danger involved and acted with reckless disregard for Isaiah\u2019s safety, in violation of Section 30-6-1 (D).\n{11} At trial the State abandoned the count for negligently causing child abuse and pursued the count for negligently permitting child abuse. The district court instructed the jury that if it had a reasonable doubt as to whether Defendant committed the crime of negligently permitting child abuse resulting in great bodily harm, then the jury should consider the crime of abandonment resulting in great bodily harm. The jury returned a verdict finding Defendant guilty of abandonment.\nDISCUSSION\n{12} The question we must address is whether the evidence was sufficient to convict Defendant of abandonment resulting in great bodily harm. The answer to this question depends on the scope intended by the Legislature for the crime of abandonment. State v. Rowell, 1995-NMSC-079, \u00b6 8, 121 N.M. 111, 908 P.2d 1379 (\u201cThe main goal of statutory construction is to give effect to the intent of the legislature.\u201d). \u201cQuestions of statutory interpretation are reviewed de novo ....\u201d State v. Tafoya, 2012-NMSC-030, \u00b6 11, 285 P.3d 604. A criminal statute must be strictly construed and \u201cmay not be applied beyond its intended scope [for] it is a fundamental rule of constitutional law that crimes must be defined with appropriate definiteness.\u201d State v. Chavez, 2009-NMSC-035, \u00b6 10, 146 N.M. 434, 211 P.3d 891 (internal quotation marks and citation omitted). Therefore, we will not read a criminal statute to apply to particular conduct \u201cunless the legislative proscription is plain.\u201d State v. Bybee, 1989-NMCA-071, \u00b6 12, 109 N.M. 44, 781 P.2d 316 (citing United States v. Scharton, 285 U.S. 518 (1932)). \u201cWe are generally unwilling to construe one provision of a statute in a manner that would make other provisions null or superfluous.\u201d State v. Rivera, 2004-NMSC-001, \u00b6 18, 134 N.M. 768, 82 P.3d 939.\n{13} Section 30-6-l(B) defines \u201cabandonment\u201d as a \u201cparent, guardian or custodian of a child intentionally leaving or abandoning the child under circumstances whereby the child may or does suffer neglect.\u201d Neglect means that a child is without proper parental care and control necessary for the child\u2019s well-being, including the child\u2019s health, education, or subsistence. Section 30-6-1 (A)(2). The statute does not define \u201cleaving or abandoning.\u201d See \u00a7 30-6-1. Thus, to determine whether Defendant\u2019s conviction was supp orted by sufficient evidence, we must first examine the scope of Section 30-6-l(B), and in particular, must for the first time ascertain the definitions of \u201cleaving\u201d and \u201cabandoning\u201d as they are used in Section 30-6-l(B).\n{14} The Court of Appeals referred to Black\u2019s Law Dictionary for the definitions of \u201cleave\u201d and \u201cabandonment\u201d because what constitutes leaving or abandoning under Section 30-6-1 is a matter of first impression in New Mexico. Stephenson, 2015-NMCA-038, \u00b6 15. Black\u2019s Law Dictionary (9th ed. 2009) defines \u201cleave\u201d as \u201c[t]o depart; voluntarily go away\u201d or \u201c[t]o depart willfully with the intent not to return,\u201d id. at 973 (emphasis added), and \u201cabandonment\u201d as \u201c[t]he relinquishing of a right or interest with the intention of never reclaiming it,\u201d or \u201c[t]he act of leaving a spouse or child willfully and without an intent to return,\u201d id. at 2 (emphasis added). See Stephenson, 2015-NMCA-038, \u00b6 15. The Court of Appeals also compared the dictionary definitions of \u201cabandonment\u201d with definitions provided by legal encyclopedias and concluded that all definitions of \u201cabandonment\u201d require deserting the child with the intent to never return. See Stephenson, 2015-NMCA-038, \u00b6 16. The Court of Appeals did not discuss the definition of \u201cleaving\u201d at length, nor did it address the disjunctive nature of \u201cleaving or abandoning\u201d in Section 30-6-l(B). See Stephenson, 2015-NMCA-038, \u00b6\u00b6 15-16. We conclude that a principled distinction exists between \u201cleaving\u201d and \u201cabandoning,\u201d and therefore, to avoid rendering either word superfluous, each word must be construed consistent with the Legislature\u2019s intent, which was to create independent theories of criminal culpability for both \u201cleaving\u201d and \u201cabandoning.\u201d\nThe Legislature intended \u201cleaving\u201d in Section 30-6-l(B) to create an independent theory of criminal culpability distinct from \u201cabandoning\u201d\n{15} We must interpret criminal statutes consistent with the purpose of the legislation and the evils sought to be addressed by giving legislative language a reasonable and common-sense construction. State v. Morales, 2010-NMSC-026, \u00b6 13, 148 N.M. 305, 236 P.3d 24. The purpose of Section 30-6-1 is to protect children from harm. See State v. Lujan, 1985-NMCA-111, \u00b6 16, 103 N.M. 667, 712 P.2d 13.\n{16} To ascertain the common-sense meaning of the terms \u201cleave\u201d and \u201cabandon\u201d in Section 3 0-6-1, we turn to the dictionary for guidance. See State v. Segotta, 1983-NMSC-092, \u00b6 8, 100 N.M. 498, 672 P.2d 1129 (\u201cWe, as other courts, often make reference to dictionaries and to the case law to determine the probable legislative intent in using a particular word.\u201d (internal quotation marks and citation omitted)). The definitions of \u201cleave\u201d that are consistent with the intent of the legislation are \u201cto take leave of or withdraw oneself from whether temporarily or permanently, go away or depart from\u201d and \u201cto cause to be or remain in some specified condition.\u201d Webster\u2019s Third New International Dictionary of the English Language Unabridged 1287 (1971) (emphasis added). The definition of \u201cabandon\u201d that is consistent with the intent of the legislation is \u201cto forsake or desert [especially] in spite of an allegiance, duty, or responsibility: withdraw one\u2019s protection, support, or help from.\u201d Webster\u2019s Third New International Dictionary of the English Language Unabridged 2 (1971). A juror relying on the ordinary meaning of the word \u201cabandon\u201d could reasonably conclude that for a parent to abandon a child, he or she must have left the child with the intent of never returning. The State argues that adding an intent never to return even to the word \u201cabandon\u201d does not make sense because the statute also applies to someone who is temporarily responsible for the care and protection of the child. W e agree that if the purpose of the statute is the protection of children, Lujan, 1985-NMCA-l 11, \u00b6 16, it should not matter whether the defendant was permanently or temporarily responsible for the custody and control of the child. However, the Legislature addressed this concern by eliminating any ambiguity with respect to the purpose of its legislation and the evil it sought to address \u2014 exposing the well-being of a child to harm \u2014 by making it a crime for a person who has custody and control of the child to either temporarily or permanently leave the child without the control and protection necessary to prevent harm to the child. Section 30-6-1 (B) criminalizes either intentionally \u201cleaving\u201d \u2014 even temporarily \u2014 or intentionally \u201cabandoning\u201d a child, but only under circumstances where doing so exposes the child to a risk of harm, whether to the child\u2019s health, education, or subsistence. See id. (emphasis added). We hold that a parent, guardian, or custodian who simply departs from the child does not violate the statute unless at the time the parent, guardian, or custodian departs from the child, the circumstances are such that the child\u2019s well-being is at risk of harm.\nThe evidence was not sufficient to find Defendant guilty of leaving or abandoning her child\n{17} The Court of Appeals concluded that the evidence did not support the guilty verdict of abandonment because although Defendant locked Isaiah in his bedroom, she remained in the apartment, and therefore the State did not prove that Defendant left Isaiah without an intent to return. Stephenson, 2015-NMCA-038, \u00b6 23. We have already held that the State does not have to prove that Defendant left Isaiah with the intent not to return. The question is whether there was sufficient evidence for a reasonable juror to find that Defendant intentionally left Isaiah at a time and under circumstances when Isaiah\u2019s well-being was at risk of harm. We must view the evidence in the light most favorable to the verdict, indulging all permissible inferences in favor of the verdict and disregarding all evidence and inferences opposed to the verdict. State v. Treadway, 2006-NMSC-008, \u00b6 7, 139 N.M. 167, 130 P.3d 746. Wewillnot \u201cweigh the evidence or substitute [our] judgment for that of the fact finder as long as there is sufficient evidence to support the verdict.\u201d State v. Mora, 1997-NMSC-060, \u00b6 27, 124 N.M. 346, 950 P.2d 789, abrogated on other grounds by Kersey v. Hatch, 2010-NMSC-020, \u00b6 17, 148 N.M. 381, 237 P.3d 683.\n{18} We preface our discussion of the sufficiency of the evidence by revisiting the relevant procedural history of this case. Defendant was indicted for negligently causing, or in the alternative, negligently permitting Isaiah to be placed in a situation which endangered his life or health, when Defendant knew or should have known of the danger involved and acted with reckless disregard for Isaiah\u2019s safety, both in violation of Section 30-6-1 (D). Causing and permitting child abuse are two distinct legal concepts. State v. Leal, 1986-NMCA-075, \u00b6 14, 104 N.M. 506, 723 P.2d 977. \u201c \u2018[PJermit\u2019 refers to the proscribed act, the passive act of allowing the abuse to occur.\u201d Id. \u00b6 19. \u201c[Clausing child abuse is synonymous with inflicting the abuse.\u201d State v. Nichols, 2016-NMSC-001, \u00b6 33, 363 P.3d 1187. When the endangerment is allegedly based on medical neglect, the appropriate theory is causing the child\u2019s life or health to be endangered by medical neglect. Id. \u00b6 35.\n{19} During trial the State abandoned the count for negligently causing child abuse and pursued the count for negligently permitting child abuse. The district court also instructed the jury on abandonment. The district court gave this instruction, despite the fact that neither party believed that abandonment is a true lesser-included offense ofpermitting child abuse. The district court considered the instruction because Defendant argued that pursuant to State v. Darkis, she was entitled to a step-down instruction on the lesser offense of abandonment because the evidence and the State\u2019s theory fit that crime. See 2000-NMCA-085, \u00b6\u00b6 14-20, 129 N.M. 547, 10 P.3d 871 (recognizing that State v. Meadors, 1995-NMSC-073, \u00b6 12, 121 N.M. 38, 908 P.2d 731 provides the test for determining when a court should grant the State\u2019s request for an instruction on a lesser-included offense, and concluding that \u201ca defendant\u2019s right to a lesser-included offense instruction is effectively greater than the State\u2019s\u201d). The district court agreed with Defendant and granted her request to give the jury a step-down instruction from permitting child abuse to child abandonment. Because neither party challenges the district court\u2019s ruling that Defendant was entitled to the abandonment instruction, we do not decide that issue here.\n{20} The district court instructed the jury that to find Defendant guilty of negligently permitting child abuse resulting in great bodily harm, the State had to prove beyond a reasonable doubt that:\n1. The Defendant permitted Isaiah Apodaca to be placed in a situation which endangered the life or health of Isaiah Apodaca;\n2. The Defendant acted with reckless disregard. To find that the Defendant acted with reckless disregard, you must find that the Defendant knew or should have known that her failure to act created a substantial and foreseeable risk, that she disregarded that risk and that she was wholly indifferent to the consequences of her failure to act, and to the welfare and safety of Isaiah Apodaca;\n3. The Defendant was a parent, guardian or custodian of the child, or the Defendant had accepted responsibility for the child\u2019s welfare;\n4. The Defendant\u2019s failure to act resulted in great bodily harm to Isaiah Apodaca;\n5. Isaiah Apodaca was under the age of 18; and\n6. This happened in New Mexico on or between the 27th day of January 2010 and the 28th day of January 2010.\n{21} The State\u2019s ultimate theory of the case was that although the dresser falling on Isaiah was an accident, Defendant\u2019s failure to respond to the cries and screams the doctors would have expected from Isaiah is what permitted Isaiah to be placed in a situation that endangered his life or health. According to the State, Defendant\u2019s failure to act was with reckless disregard because she knew or should have known that her failure to act created a substantial and foreseeable risk to Isaiah. We note that this instruction tracked UJI 14-603 NMRA (2010, withdrawn effective April 3, 2015). In State v. Consaul we recently called into question the legal accuracy of the uniform jury instructions for crimes under Section 30-6-1, see 2014-NMSC-030 \u00b6 35, 332 P.3d 850, and the instruction has since been modified by UJI 14-615 NMRA. However, we need not address this concern because the jury did not find Defendant guilty under the State\u2019s theory that she negligently permitted child abuse.\n{22} The district court instructed the jury that if it had a reasonable doubt as to whether Defendant committed the crime of negligently permitting child abuse resulting in great bodily harm, then the jury should consider the crime of abandonment resulting in great bodily harm. We presume that the jury followed this instruction, see Britton v. Bouldon, 1975-NMSC-029, \u00b6 6, 87 N.M. 474, 535 P.2d 1325, and because the jury proceeded to find Defendant guilty of abandonment, the jury had a reasonable doubt as to whether Defendant negligently permitted child abuse.\n{23} The district court instructed the jury that to find Defendant guilty of abandonment of a child resulting in great bodily harm, the State had to prove beyond a reasonable doubt that:\n1. Jennifer Stephenson was a parent of Isaiah Apodaca;\n2. Jennifer Stephenson intentionally left or abandoned Isaiah Apodaca;\n3. As a result of Jennifer Stephenson\u2019s leaving or abandoning Isaiah Apodaca, Isaiah Apodaca was without proper parental care and control necessary for Isaiah Apodaca\u2019s well-being;\n4. Jennifer Stephenson had the ability to provide proper parental care and control necessary for Isaiah Apodaca\u2019s well-being;\n5. Jennifer Stephenson\u2019s failure to provide proper parental car[e] and control necessary for Isaiah Apodaca\u2019s well-being resulted in great bodily harm to Isaiah Apodaca;\n6. Isaiah Apodaca was under the age of 18;\n7. This happened in New Mexico on or between the 27th and 28th days of January 2010.\n(Emphasis added.)\n{24} The State contends that the \u201cmost reasonable inference from the evidence is that Defendant left the apartment, leaving Isaiah alone, for the first part of the evening and night, including the time period when the dresser fell on Isaiah\u2019s legs.\u201d The State asserts that Defendant did not testify, and therefore her whereabouts are not accounted for until Anthony arrived at 2:00 a.m. The State further explains that the reasonable inference that Defendant left Isaiah alone in the apartment is supported by the testimony of multiple doctors who would have expected Isaiah to scream, and therefore Isaiah must have screamed, only quieting through exhaustion and despair once he realized that his screams were futile. Because Defendant did not hear screams, the State argues that the reasonable inference is that she was not in the apartment. The State also contends that even if Defendant did not leave the apartment, she still left Isaiah unattended while he was screaming.\n{25} Defendant cites State v. Vigil, 1975-NMSC-013, \u00b6 12, 87 N.M. 345, 533 P.2d 578 for the proposition that mere speculation cannot support a guilty verdict, and contends that it is pure speculation that she left Isaiah alone in the apartment. Defendant also notes that the jury was instructed not to draw any inferences from the fact that she did not testify, and the jury is presumed to follow jury instructions. Defendant emphasizes that Anthony did not hear Isaiah scream, and argues that Isaiah likely did not scream during the night because compartment syndrome takes a considerable amount of time to become painful.\n{26} We conclude that there was not sufficient evidence for a reasonable juror to find that at the time Defendant put Isaiah in his bedroom, intentionally departing from him, the circumstances were such that Isaiah\u2019swell-being was at risk of harm. The State\u2019s contention that the evidence supports a reasonable inference that Defendant left the apartment is not tied to the facts in the case, and is therefore speculative. \u201c \u2018[EJvidence from which a proposition can be derived only by speculation among equally plausible alternatives is not substantial evidence of the proposition.\u2019 \u201d State v. Slade, 2014-NMCA-088, \u00b6 14, 331 P.3d 930 (quoting Baca v. Bueno Foods, 1988-NMCA-1 12, \u00b6 15, 108 N.M. 98, 766 P.2d 1332), cert. granted, 2014-NMCERT-008, cert. quashed, 2015-NMCERT-001. The evidence before the jury was that Defendant put Isaiah to bed for the night and locked his bedroom door. According to Anthony, he and Defendant exchanged numerous text messages throughout the night, and Defendant eventually invited him to spend the night with her once he got off work. In Defendant\u2019s statement to the police, she stated that she did not hear any screaming or crying from Isaiah that night. Anthony also testified that he did not hear any screaming or crying.\n{27} Defendant departed from Isaiah the moment she put him in his room. There is no evidence that the dresser that had been in Isaiah\u2019s room for months was wobbly or unsteady, or that he had climbed on the dresser in the past. There is no evidence that Isaiah\u2019s well-being was in jeopardy if he was left alone in his room to go to sleep. During closing arguments, the State emphasized that Isaiah had to have been screaming and Defendant ignored him. However, this evidence is relevant only to the question of whether Defendant permitted Isaiah to be in a situation that endangered his health or life, which the jury determined she did not. It is not relevant to Defendant placing Isaiah in his room for the night.\n{28} Our review of the sufficiency of the evidence takes into account \u201cboth the jury\u2019s fundamental role as factfinder\u201d and our independent responsibility to ensure that a jury\u2019s conviction of a defendant is supported \u201cby evidence in the record, rather than mere guess or conjecture.\u201d State v. Flores, 2010-NMSC-002, \u00b6 2, 147 N.M. 542, 226 P.3d 641. In this case, we conclude that there was not sufficient evidence to support the conviction for child abandonment. Because the crime of leaving or abandoning a child is at a minimum a misdemeanor, and possibly a felony if the child suffers great bodily harm or death, and we have noted that by creating criminal liability under Section 30-6-1, \u201cthe Legislature did not intend to criminalize conduct creating \u2018a mere possibility, however remote, that harm may result\u2019 to a child,\u201d State v. Graham, 2005-NMSC-004, \u00b6 9, 137 N.M. 197, 109 P.3d 285 (citation omitted), we cannot affirm Defendant\u2019s conviction. Indeed, to uphold Defendant\u2019s conviction could potentially criminalize parents\u2019 actions every single time they tuck their children into bed and harm befalls their children at night through some unfortunate accident, which we refuse to do.\nCONCLUSION\n{29} We affirm the result reached by the Court of Appeals and remand to the district court for entry of a judgment of acquittal.\n{30} IT IS SO ORDERED.\nEDWARD L. CH\u00c1VEZ, Justice\nWE CONCUR:\nCHARLES W. DANIELS, Chief Justice\nBARBARA J. VIGIL, Justice\nJUDITH K. NAKAMURA, Justice, concurring in part and dissenting in part\nPETRA JIMENEZ MAES, Justice, joining in special concurrence and dissent\nIf child abandonment is a lessor-included offense of negligently permitting child abuse, an issue we do not decide, the jury\u2019s verdict is an implicit acquittal of negligently permitting child abuse. See State v. Medina, 1975-NMCA-033, \u00b6 8, 87 N.M. 394, 534 P.2d 486 (citing State v. Goodson, 1950-NMSC-023, \u00b6 9, 54 N.M. 184, 217 P.2d 262 (stating that it is well settled in New Mexico that a conviction of a lesser-included offense is an implicit acquittal of a greater offense)).", "type": "majority", "author": "CH\u00c1VEZ, Justice." }, { "text": "Nakamura, Justice\n(concurring in part and dissenting in part).\n{31} An appellate court\u2019s review of whether sufficient evidence supports a jury\u2019s verdict is settled: We draw every reasonable inference in favor of the verdict and then evaluate whether the evidence, so viewed, supports the verdict beyond a reasonable doubt. E.g., State v. Cantrell, 2008-NMSC-016, \u00b6 26, 143 N.M. 606, 179 P.3d 1214. Under this standard of review, a rational jury could have found beyond a reasonable doubt that Stephenson violatedNMSA 1978, Section 30-6-1(B) (2009) by intentionally leaving Isaiah under circumstances whereby Isaiah suffered neglect. Accordingly, I respectfully dissent.\n{32} The Legislature intended \u201cleaving\u201d and \u201cabandoning\u201d to create independent theories of criminal culpability under Section 30-6-1 (B). The majority concludes that, when enacting Section 30-6-1 (B), the Legislature intended \u201cleaving\u201d to reflect its ordinary, dictionary definitions \u2014 i.e., first, \u201c \u2018to take leave of or withdraw oneself from whether temporarily or permanently: go away or depart from\u2019 \u201d and, second, \u201c \u2018to cause to be or remain in some specified condition.\u2019 \u201d Maj. Op., \u00b6 16 (quoting Webster\u2019s Third New International Dictionary of the English Language Unabridged 1287 (1971) (emphasis omitted)). I agree that the Legislature intended \u201cleaving\u201d to denote these dictionary definitions. I also agree that there was insufficient evidence for the jury to convict under the first definition of \u201cleaving\u201d: At the time Stephenson put Isaiah to bed and locked the door, there was not sufficient evidence for a reasonable jury to conclude that she left Isaiah under circumstances in which he may have suffered or did in fact suffer neglect.\n{33} Yet, I disagree with the majority\u2019s ultimate conclusion that there was insufficient evidence to support the jury\u2019s finding that Stephenson intentionally left Isaiah under circumstances whereby he suffered neglect. At some point during the night, the dresser fell upon Isaiah and pinned his legs to the crossbar of his toddler bed. Sufficient evidence was presented at trial for a reasonable jury to find that Stephenson both apprehended that Isaiah was injured and intentionally left him in that condition. In other words, Stephenson \u201ccaused\u201d Isaiah \u201cto remain in some specified condition\u201d \u2014 i.e., pinned underneath the dresser, expressing his pain, for many, many hours. Leave, Webster\u2019s Third New International Dictionary of the English Language Unabridged 1287 (1971)). In light of this second dictionary definition of \u201cleave,\u201d the Legislature could not have intended the statute to focus exclusively on the moment a parent or guardian initially departs from a child. The statute is also implicated where a parent or guardian knows that a child is in peril (even if in the next room) and intentionally leaves that child in peril.\n{34} Under the second dictionary definition of \u201cleaving\u201d that the Legislature intended in Section 30-6-1 (B), sufficient evidence supports the jury\u2019s vei'dict. The jury heard testimony regarding the grave and abnormal extent of Isaiah\u2019s injuries. As a result of being trapped underneath the dresser, Isaiah suffered compartment syndrome. The jury heard testimony from Dr. Dale Hoekstra, M.D., an orthopedic surgeon with University of New Mexico\u2019s Children\u2019s Hospital (UNMH) and medical director of Carrie Tingley Hospital in Albuquerque. Dr. Hoekstra testified that compartment syndrome \u201cis a condition that arises as a result of an injury to an extremity, almost invariably between the knee and the ankle, in which the pressures in the leg build up to the point that the blood can no longer supply the muscles in the leg, and they start to die or necrose.\u201d Elevated creatine kinase [\u201cCK\u201d] levels in Isaiah\u2019s blood indicated that Isaiah suffered from compartment syndrome. Dr. Hoekstra testified that the normal range for CK is between 72 to 367 units, and at 9:57 a.m., shortly after his arrival, Isaiah\u2019s CK level was 36,605 units, which indicated extensive trauma that threatened the loss of Isaiah\u2019s legs and the failure of Isaiah\u2019s kidneys. Because Isaiah urgently needed the care of a pediatric nephrologist, pediatric surgeons, and pediatric intensive care doctors, Isaiah was airlifted from Christus St. Vincent Hospital in SantaFe to UNMH in Albuquerque. Once Isaiah arrived at UNMH, his CK peaked at 123,000 units. At UNMH, Dr. Hoekstra performed an emergency fasciotomy on both of Isaiah\u2019s legs and found extensive damage, including some tissue death, in Isaiah\u2019s leg muscles.\n{35} The jury was also presented with evidence establishing that, in order for Isaiah to have developed such an extraordinarily high CK level, Isaiah had to have been trapped under the dresser for eight to twelve hours. Dr. Hoekstra opined that the extent of Isaiah\u2019s injuries indicated that Isaiah had been pinned under the dresser for \u201cat least twelve hours.\u201d Dr. Denise Coleman, M.D., a pediatric critical care physician at UNMH, who observed Isaiah immediately before his surgery, conservatively estimated that Isaiah was pinned under the dresser for \u201ca minimum of six to twelve hours.\u201d\n{36} The jury also heard testimony from Stephenson\u2019s expert witness, Dr. Steven Gabaeff, M.D., who is board certified in emergency medicine and operates a clinical forensic medical practice. Even Dr. Gabaeff testified that Isaiah\u2019s CK levels were the highest he had ever seen and estimated that Isaiah\u2019s \u201cmuscles had no oxygen for a very long time to get that condition.\u201d Dr. Gabaeff estimated that Isaiah had been pinned under the dresser for four-and-a-half to eight hours, that \u201c[i]t could have been a little longer even,\u201d and that \u201c[b]ased on the [CK levels] going so high, [he] tended to really believe that it was on the longer side.\u201d Dr. Gabaeff further opined that \u201cif something happen[ed], say, at 10:30 or 11:00 or 11:30, you know, we\u2019re talking about eight hours, and that seems to me to be about what I\u2019d expect... we already have numbers that, you know, lead us in a direction.\u201d Therefore, from the expert testimony presented by the State and by Stephenson, the jury was permitted to find that Isaiah was underneath the dresser for eight to twelve hours. Consequently, the jury was permitted to infer that the dresser fell on Isaiah between 10:30 p.m. and 11:00 p.m. and remained on top of him until 7:00 a.m. the next morning.\n{37} Critically, the jury was presented with additional evidence from which it was permitted to infer the following two findings: First, Isaiah would have expressed audible and sustained indications of pain. Second, Stephenson was both home and awake throughout the night and into the morning, during the time that Isaiah was pinned and expressing pain. Dr. Coleman testified that Isaiah would have been able to scream and that \u201che would have been in pain for a very long time.\u201d Dr. Coleman further testified that the impairment of blood flow in Isaiah\u2019s legs would have caused him extreme pain and compared Isaiah\u2019s pain to the pain of having an arterial blood clot. Dr. Coleman referenced her training in critical care in Seattle, where she cared for children who had been pinned under fallen trees during the course of lumbering accidents, and testified, \u201c[I]t\u2019s painful. Oftentimes, the pain never goes away. ... I can tell you it hurt until they could get I.V. pain meds.\u201d\n{38} Apodaca, Isaiah\u2019s father, testified that he worked that night from 6:00 p.m. until 1:25 a.m. or 1:30 a.m. and that he received text messages from Stephenson during the \u201cwhole time [he] was working\u201d in which Stephenson invited Apodaca to come spend the night with her at her apartment. Apodaca went to Stephenson\u2019s apartment after he left work and arrived at approximately 2:00 a.m. She was home. Upon Apodaca\u2019s request, Stephenson went to McDonald\u2019s to buy some food. Stephenson returned home at approximately 2:45 a.m. Apodaca asked Stephenson to check on Isaiah at about 3:00 a.m. Stephenson and Apodaca then ate, had sex, and went to sleep at approximately 4:00 a.m. or 4:15 a.m.\n{39} From this evidence, the jury was permitted to draw reasonable inferences to reach its verdict. The jury was permitted to rely on the medical expert testimony \u2014 and on its common sense and experience \u2014 to infer from the severity of Isaiah\u2019s injuries, coupled with the shock and pain that a falling dresser would cause to a toddler, that Isaiah cried and screamed loudly, for a prolonged duration. The jury was permitted to infer \u2014 based on the estimations of Doctors Hoekstra, Coleman, and Gabaeff \u2014 that during the entire time from Apodaca\u2019s arrival to the time of their going to sleep, Isaiah was pinned underneath a dresser, enduring and expressing his pain. Based on those same estimations, the jury was entirely free to reject Stephenson\u2019s affidavit testimony that she checked on Isaiah at 2:00 a.m., and that he was fine. The jury was rather permitted to infer that, given the severity of Isaiah\u2019s injuries and the copious medical expert testimony as to the cause of those injuries, at 2:00 a.m. Isaiah was pinned under the dresser. The jury was also permitted to rely on its common sense to infer that the type of crying and screaming that Isaiah expressed as the dresser fell upon him and as his muscle tissue was dying was abnormal \u2014 different in both kind and duration from the type of crying that a follower of Dr. Ferber\u2019s method ofparenting may recognize as normal. And the jury was permitted to find that if Isaiah had expressed his pain, Stephenson would have heard it. Detective Van Etten testified that Stephenson\u2019s apartment was small, such that \u201canybody would be able to hear anybody from one end of the apartment to the other.\u201d In sum, the jury was permitted to find that Stephenson intentionally left Isaiah under circumstances whereby he suffered neglect.\n{40} The majority worries that a decision which upholds the jury\u2019s verdict \u201ccould potentially criminalize parents\u2019 actions every single time they tuck their children into bed and harm befalls their children at night through some unfortunate accident.\u201d Maj. Op., \u00b6 28. While I understand this concern, I do not share it. Two bulwarks prevent a decision upholding the jury\u2019s verdict from threatening well-meaning parents with criminal liability. First, to establish a violation of Section 30-6-l(B), the State must prove that the child is exposed to neglect, which is specifically defined by Section 30-6-1(A)(2), and which clearly excludes criminal liability for accidental injuries that befall children unbeknownst to well-meaning parents. Second, and more fundamentally, it is the hard and jagged facts of cases which prevent legal conclusions from tumbling down the slippery slope. For example, in this case, the jury had much more to consider than just the scenario of a parent putting a child down to sleep for the night, only to wake up in the morning to discover that the child had experienced some injury as a result of an accident unbeknownst to the parent. Here, the jury was permitted to infer that Stephenson knew Isaiah was suffering an abnormal degree of pain but, nevertheless, intentionally left him in that condition. Drawing every reasonable inference in favor of the verdict, as we are required to do, the jury had sufficient evidence to make that finding.\n{41} Accordingly, I respectfully dissent.\nJUDITH K. NAKAMURA, Justice\nI CONCUR:\nPETRA JIMENEZ MAES, Justice", "type": "concurring-in-part-and-dissenting-in-part", "author": "Nakamura, Justice" } ], "attorneys": [ "Hector H. Balderas, Attorney General Joel Jacobsen, Assistant Attorney General M aris Veidemanis, Assistant Attorney General Santa Fe, NM for Petitioner", "Bennett J. Baur, Chief Public Defender B. Douglas Wood, III, Assistant Appellate Defender Santa Fe, NM for Respondent" ], "corrections": "", "head_matter": "IN THE SUPREME COURT OF THE STATE OF NEW MEXICO\nOpinion Number: 2017-NMSC-002\nFiling Date: September 26, 2016\nDocket No. S-1-SC-35035\nSTATE OF NEW MEXICO, Plaintiff-Petitioner, v. JENNIFER STEPHENSON, Defendant-Respondent.\nMichael E. Vigil, District Judge\nHector H. Balderas, Attorney General Joel Jacobsen, Assistant Attorney General M aris Veidemanis, Assistant Attorney General Santa Fe, NM for Petitioner\nBennett J. Baur, Chief Public Defender B. Douglas Wood, III, Assistant Appellate Defender Santa Fe, NM for Respondent" }, "file_name": "0773-01", "first_page_order": 789, "last_page_order": 801 }