{ "id": 4240587, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. NATHAN MONTOYA, Defendant-Appellant", "name_abbreviation": "State v. Montoya", "decision_date": "2015-03-12", "docket_number": "Docket No. 33,967", "first_page": "445", "last_page": "464", "citations": [ { "type": "official", "cite": "2015-NMSC-010" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "332 P.3d 850", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2010-NMSC-041", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4247246 ], "weight": 8, "pin_cites": [ { "page": "\u00b6 39" }, { "page": "\u00b6 39" }, { "page": "\u00b6 39" }, { "page": "\u00b6 42" }, { "page": "\u00b6 43" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0747-01" ] }, { "cite": "296 P.3d 1232", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMCA-028", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4190584 ], "pin_cites": [ { "page": "\u00b6 37" } ], "opinion_index": 0, "case_paths": [ "/nm-app/3/0461-01" ] }, { "cite": "2007-NMSC-057", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3784502 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 29" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0007-01" ] }, { "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": "1999-NMSC-007", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827421 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0646-01" ] }, { "cite": "1999-NMCA-013", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827415 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0593-01" ] }, { "cite": "1997-NMSC-059", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 18555 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0333-01" ] }, { "cite": "2005-NMCA-028", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 929212 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 33" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0092-01" ] }, { "cite": "2014-NMSC-014", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4239434 ], "pin_cites": [ { "page": "\u00b6 56" } ], "opinion_index": 0, "case_paths": [ "/nm-app/6/0050-01" ] }, { "cite": "2000-NMSC-036", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1217140 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0767-01" ] }, { "cite": "145 P.3d 64", "category": "reporters:state_regional", "reporter": "P.3d", "weight": 2, "pin_cites": [ { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0 }, { "cite": "2002-NMCA-047", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 260680 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 22" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0124-01" ] }, { "cite": "107 N.M. 126", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597058 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/107/0126-01" ] }, { "cite": "1988-NMSC-031", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 21" } ], "opinion_index": 0 }, { "cite": "2006-NMSC-035", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3670050 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 5" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0094-01" ] }, { "cite": "284 P.3d 1076", "category": "reporters:state_regional", "reporter": "P.3d", "weight": 3, "pin_cites": [ { "parenthetical": "internal quotation marks and citation omitted" }, { "parenthetical": "second and fourth alterations in original" } ], "opinion_index": 0 }, { "cite": "2012-NMSC-027", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4190278 ], "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm-app/2/0408-01" ] }, { "cite": "103 N.M. 655", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711335 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/103/0655-01" ] }, { "cite": "1985-NMCA-029", "category": "reporters:neutral", "reporter": "NMCA", "opinion_index": 0 }, { "cite": "78 N.M. 127", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5324373 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/78/0127-01" ] }, { "cite": "1967-NMSC-151", "category": "reporters:neutral", "reporter": "NMSC", "opinion_index": 0 }, { "cite": "116 N.M. 450", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727626 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/116/0450-01" ] }, { "cite": "1993-NMSC-064", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0 }, { "cite": "2009-NMCA-027", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4243417 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0719-01" ] }, { "cite": "120 N.M. 486", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558914 ], "weight": 4, "pin_cites": [ { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0486-01" ] }, { "cite": "1995-NMSC-056", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 23" } ], "opinion_index": 0 }, { "cite": "2007-NMSC-050", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3692900 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 18" }, { "page": "\u00b6 28" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0644-01" ] }, { "cite": "67 N.M. 336", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2714594 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/67/0336-01" ] }, { "cite": "1960-NMSC-102", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0 }, { "cite": "114 N.M. 269", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731614 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/114/0269-01" ] }, { "cite": "1992-NMSC-048", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 21" } ], "opinion_index": 0 }, { "cite": "122 N.M. 148", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 322283 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/122/0148-01" ] }, { "cite": "1996-NMSC-043", "category": "reporters:neutral", "reporter": "NMSC", "weight": 2, "pin_cites": [ { "page": "\u00b6 20" }, { "page": "\u00b6 20" } ], "opinion_index": 0 }, { "cite": "2009-NMSC-037", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4244318 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0481-01" ] }, { "cite": "2005-NMCA-044", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 929171 ], "weight": 4, "pin_cites": [ { "page": "\u00b69" }, { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0353-01" ] }, { "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", "weight": 4, "pin_cites": [ { "page": "\u00b6\u00b6 6, 12" }, { "page": "\u00b6 11" }, { "page": "\u00b6\u00b6 6, 11, 12" }, { "page": "\u00b6 5" } ], "opinion_index": 0 }, { "cite": "2010-NMSC-010", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4245664 ], "opinion_index": 0, "case_paths": [ "/nm/147/0699-01" ] }, { "cite": "2009-NMCA-067", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4243790 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 9" }, { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0550-01" ] }, { "cite": "2008-NMSC-010", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3784610 ], "weight": 4, "pin_cites": [ { "page": "\u00b6\u00b6 1, 54" }, { "page": "\u00b6 1" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0373-01" ] }, { "cite": "2005-NMCA-012", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1224630 ], "weight": 4, "pin_cites": [ { "page": "\u00b6\u00b6 14-16" }, { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0749-01" ] }, { "cite": "2010-NMSC-023", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4248247 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b69-13" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0414-01" ] }, { "cite": "2011-NMSC-041", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4250792 ], "weight": 8, "pin_cites": [ { "page": "\u00b6 21" }, { "parenthetical": "\"In this case, defense counsel preserved the jury instruction claim when he objected to the inclusion of the words 'failure to act' in Instruction No. 3, and therefore, we review for reversible error.\"" }, { "page": "\u00b6\u00b6 16, 27" }, { "page": "\u00b6 33" }, { "page": "\u00b6 37" } ], "opinion_index": 0, "case_paths": [ "/nm/150/0654-01" ] }, { "cite": "2005-NMCA-042", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 929166 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 18" }, { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0315-01" ] }, { "cite": "2014-NMSC-030", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4239919 ], "weight": 11, "pin_cites": [ { "page": "\u00b6 38" }, { "page": "\u00b6 23" }, { "page": "\u00b6\u00b6 21-23" }, { "page": "\u00b6 22" }, { "page": "\u00b6 23" }, { "page": "\u00b638" }, { "page": "\u00b6 37" }, { "page": "\u00b6 24" }, { "page": "\u00b6 37" }, { "page": "\u00b6 26" } ], "opinion_index": 0, "case_paths": [ "/nm-app/6/0532-01" ] } ], "analysis": { "cardinality": 1740, "char_count": 65037, "ocr_confidence": 0.768, "pagerank": { "raw": 1.1252751744205913e-07, "percentile": 0.5744466183163575 }, "sha256": "d7ff57c117fea7543b2dcfe4419f38c99561c43f2013446e7e70f814b0a895c8", "simhash": "1:9332c6206eba0ac6", "word_count": 10369 }, "last_updated": "2023-07-14T17:10:55.229683+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BARBARA J. VIGIL, Chief Justice", "PETRA JIMENEZ MAES, Justice", "RICHARD C. BOSSON, Justice", "EDWARD L. CH\u00c1VEZ, Justice", "CHARLES W. DANIELS, Justice" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. NATHAN MONTOYA, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nVIGIL, Chief Justice.\nThis case presents another example of the ongoing confusion created by our child abuse jury instructions. Breandra Pena (Baby Breandra), age seventeen months, died while in the care of Nathan Montoya (Defendant). Defendant was convicted of intentional child abuse resulting in the death of a child under twelve contrary to NMSA 1978, Section 30-6-1(D), (H) (2009) and sentenced to life imprisonment.\nIn our review of Defendant\u2019s conviction on direct appeal, we first hold that the jury instructions used in Defendant\u2019s trial accurately instructed the jury of the law and did not constitute reversible error. We determine that, when considered as a whole, the instructions used in this case are distinguishable from those used in previous cases which we have reversed based on erroneous child abuse jury instructions. We also hold that reckless child abuse may, in some cases, be a lesser included offense of intentional child abuse resulting in the death of a child under twelve, and disavow New Mexico cases suggesting otherwise. Accordingly, w\u00e9 determine that when a jury is correctly instructed on both reckless and intentional child abuse resulting in the death of a child under twelve, a step-down instruction is appropriate.\nNext, we hold that the admission of a forensic pathologist\u2019s expert testimony was not in error and that sufficient evidence was presented to convict Defendant. Finally, we hold that it was abuse of discretion for the district court judge to refuse to consider mitigating the basic sentence of life imprisonment, based on the court\u2019s mistaken understanding that the life sentence was mandatory and could not be altered. Defendant\u2019s conviction for intentional child abuse is affirmed and the case is remanded to the district court for resentencing with consideration of potential mitigating circumstances.\nI. BACKGROUND\nA. Facts\nBaby Breandra was born to Melissa Romero (Mother) and Andrew Pena on September 24, 2009. Mother occasionally asked her cousin, Edwardine Fernandez (Fernandez), Breandra\u2019s godmother, and Defendant to look after Baby Breandra. On March 4, 2011, when Baby Breandra was seventeen months old, Fernandez and Defendant picked up Baby Breandra from Mother\u2019s home in Albuquerque and took her to their home in Espa\u00f1ola for the weekend. When Fernandez and Defendant picked up Baby Breandra from Mother, she had no signs of bumps or bruises on her body.\nOn March 8, 2011, Fernandez was at work by 7:00 a.m. at St. Vincent Hospital in Santa Fe, leaving Defendant at home alone with Baby Breandra. Fernandez was in contact with Defendant regularly throughout the day, about once an hour. At about 9:00 a.m., Defendant\u2019s friend Derek Vigil (Vigil) visited Defendant at home. Vigil left around 11:30 a.m. or noon. When Vigil left, he did not see any signs that Baby Breandra was in distress.\nAround 1:42 p.m., Defendant called 911 and told the operator that Baby Breandra had been teething, had not been feeling well, had been throwing up, and was not coming back. Defendant reported that Baby Breandra still had a heartbeat. He did not report that the baby had fallen in the bathtub, or that he dropped her, as he later claimed. Paramedics were dispatched in response to a child having difficulty breathing. While en route to the scene, the paramedics received an update that the child had stopped breathing, and a second update that the child had no heartbeat.\nThe paramedics arrived at Defendant\u2019s home at 1:48 p.m. When they arrived, Defendant was standing in the doorway holding Baby Breandra, who was limp, nonresponsive, and pale. The paramedics noted that Baby Breandra had bruising throughout her body, including marks on her chest and belly and a scrape on her nose, and that her ears were red, bruised, and swollen. The paramedics immediately began life saving measures on Baby Breandra, but knew she was dead as soon as they got her on the gurney in the ambulance.\nRandy Sanchez, one of the responding paramedics, testified as an expert witness in the field of EMT paramedics. Mr. Sanchez testified that based on her cool, pale skin, he believed Baby Breandra was deceased before Defendant placed the call to 911. In his opinion, the baby\u2019s injuries were not consistent with choking. Mr. Sanchez said it was fairly obvious that the baby had sustained traumatic injuries.\nDeputy Jason Gallegos of the Rio Arriba County Sheriffs Office testified that he was dispatched to a call regarding an unresponsive baby at Defendant\u2019s home. Deputy Gallegos approached Defendant and asked him what happened. Defendant told Deputy Gallegos that he had been watching Baby Breandra and she was teething and grumpy. Defendant said he and Baby Breandra were sitting on the bed, eating cheese and crackers and watching cartoons. Baby Breandra wouldn\u2019t stop crying, so Defendant decided to give her a bath. Defendant said that after the bath, he decided to put the baby down for a nap, so he laid her on the bed and gave her a sippy cup of milk. Defendant said Baby Breandra started choking on the milk and she threw up a light brown substance. Defendant said he patted her on the back to try to dislodge whatever the baby was choking on. After speaking to Deputy Gallegos, Defendant cried and paced around the house, asking if the baby was ok.\nIn her statement to the police, Fernandez said that Defendant called her earlier that day and told her that Baby Breandra was fussy because she was teething. Defendant told Fernandez that he gave Baby Breandra Tylenol because she was drooling and felt feverish, and he gave her some Orajel. Defendant reported to Fernandez that he suspected the Orajel made Baby Breandra throw up, and he called 911 because she threw up and was choking. At trial, Fernandez recounted that at 12:47 p.m., Defendant had called to tell her that B aby Breandra had fallen in the bathtub and scraped her nose, but otherwise seemed fine. Fernandez said she forgot to tell the police in her statement that Defendant said Baby Breandra had fallen in the tub.\nAgent Joey Gallegos interviewed Defendant at the New Mexico State Police Office in Espa\u00f1ola. Agent Gallegos testified that after he told Defendant that Baby Breandra was dead, Defendant said, \u201cI slapped her. I got her by her ears and she didn\u2019t want to keep quiet.\u201d When Agent Gallegos showed Defendant pictures of Baby Breandra\u2019s injuries and asked if Defendant had caused them, Defendant responded, \u201cYeah, that one that she has, yeah. I did spank her and all of that. That\u2019s what I\u2019m saying.\u201d Later in his statement to the police, Defendant claimed that the baby fell in the bathtub, and that he accidentally dropped her while running to the living room.\nDr. Clarissa Krinsky, Assistant Professor of Pathology at the University of New Mexico and Medical Investigator at the Office of the Medical Investigator, testified as an expert in forensic pathology. Dr. Krinsky supervised the autopsy of Baby Breandra on March 9, 2011. Dr. Krinsky observed abrasions covering large areas ofboth sides of the baby\u2019s head and contusions on both ears. Dr. Krinsky opined that the injuries to Baby Breandra\u2019s ears were intentional, caused by someone grabbing and pulling them, and could not have been caused by the baby herself. Dr. Krinsky saw between forty and fifty bruises on Baby Breandra\u2019s back, chest, and abdomen. The baby also had subdural and subarachnoid hemorrhages on both sides of the brain, indicative of significant head trauma. Dr. Krinsky said these types of injuries were unlikely to be caused by a fall in a bathtub. Dr. Krinsky also found significant internal abdominal injuries, which she characterized as classic intentional injuries found in children who were punched or kicked in the stomach.\nDr. Krinsky said that Baby Breandra\u2019s death was the result of multiple blunt force injuries. Dr. Krinsky concluded that the constellation of injuries on Baby Breandra\u2019s body was a result of intentional, nonaccidental trauma, and that the manner of death was homicide, which she defined as death at the hands of another.\nB. Procedure\nDefendant was charged with abuse of a child resulting in the death of Baby Breandra, a child under twelve, caused by knowingly, intentionally, or recklessly, and without justifiable cause, endangering, torturing, or cruelly punishing the child contrary to Sections 30-6-l(D)(l) or (2) and (H). Defendant was convicted of intentional child abuse resulting in the death of a child under twelve and sentenced to life in prison. Defendant appealed directly to this Court pursuant to Rule 12-102(A)(1) NMRA and Article VI, Section 2 of the New Mexico Constitution. Further procedural background is provided below as necessary.\nII. DISCUSSION\nDefendant advances numerous arguments on appeal, including: that the jury instructions used at trial were a misstatement of the law and misled the jury, that the pathologist\u2019s expert testimony about a \u201cconstellation of injuries\u201d on the baby should not have been admitted, that the State failed to present sufficient evidence to support Defendant\u2019s conviction, that he received ineffective assistance of counsel, and that the district court\u2019s failure to consider potential mitigating circumstances in sentencing Defendant was an abuse of discretion. We address each argument in turn.\nA. Jury Instructions\nDefendant argues that jury instruction number three erroneously combined the elements of both intentional and reckless child abuse[ which Defendant asserts was a misstatement of the law, was confusing to the jury, and constitutes reversible error. We recently clarified an aspect of our Uniform Jury Instructions governing child abuse that \u201cpotentially contribute^] to jury confusion, resulting in unjust child abuse convictions.\u201d See Consaul, 2014-NMSC-030, \u00b6 38 (holding that the Legislature intended to require proof of recklessness to sustain a conviction for negligent child abuse and requiring juries to be instructed using the reckless disregard standard). This case presents us with a similar opportunity to clarify two other aspects of our jury instructions. We clarify when separate instructions are required to prove reckless or intentional child abuse. We also clarify that in some circumstances, like in the case at bar, reckless child abuse may be a lesser-included offense of intentional child abuse.\n1. Procedural background\nThe confusion caused by the dissonance between our case law and our jury instructions for child abuse resulting in the death of a child under twelve is epitomized by the argument which took place in the district court below regarding the proper instructions. Just before closing arguments, the district court and the parties held an extensive discussion about the correct form of the jury instructions.\nThe State began the discussion by noting that \u201c[i]n regards to the elements of the child abuse charge \u2014 well, for the record, this particular instruction should have been changed per the higher Courts back in the 90\u2019s and it never was, so it\u2019s kind of a difficult instruction to work with.\u201d The State told the district court that it did not \u201cwant to follow the [Uniform Jury Instruction] [(]UJI[)] when it comes to reckless disregard and intentional.\u201d The State recognized that \u201c[w]hen it comes to intentional child abuse and reckless child abuse . . . the Jury has to make clear which one they find,\u201d but argued that there would be no problem with an elements instruction containing both theories as long as there was a special interrogatory. Thus, the State proposed a single jury instruction which contained elements of both intentional and reckless child abuse, along with a special interrogatory form on which the jury could indicate which type of abuse it found.\nDefendant asserted that the elements of intentional and reckless should be in two separate instructions. Defendant argued that the jury would need to clearly indicate whether it found intentional or reckless child abuse, and therefore, \u201c[t]here is a problem with having two theories in one instruction.\u201d Defendant also argued that the jury should first consider whether Defendant was guilty of intentional child abuse, and if not, consider whether he was guilty of reckless child abuse, and if not, find him not guilty. Thus, Defendant proposed two instructions, one containing the elements of intentional abuse and another for reckless abuse. Defendant also proposed a step-down-type instruction to guide the jury in considering each of the crimes in turn.\nIn ruling on the jury instructions, the district court observed that if ten years ago, this Court said the jury instructions should be changed, \u201cand the UJI Committee did not change it, it\u2019s because they didn\u2019t think it needed to be changed. They don\u2019t just ignore cases.\u201d The district court thus surmised that the Committee and the Court had discussed whether the instructions needed to be changed and decided against it. The State noted that \u201c[t]he UJI is wrong. We don\u2019t want to follow the UJI when it comes to reckless disregard and intentional,\u201d and that \u201cwe\u2019re all in agreement that this should have been changed.\u201d The district court nonetheless concluded that \u201cthe [Cjommittee must have thought [the problem with the combined elements instruction] can [be] handled by a special interrogatory where you ask the Jury to designate on what theory.\u201d Accordingly, the district court rejected both of Defendant\u2019s proposed instructions and accepted the State\u2019s combined elements instruction and its special interrogatory form.\nThe disputed elements instruction submitted to the jury read as follows:\nINSTRUCTION NO. 3\nFor you to find the defendant guilty of child abuse resulting in death as charged in Count 1, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:\n1. The defendant caused Breandra Pena to be placed in a situation which endangered the life or health of Breandra Pena, or tortured or cruelly punished Breandra Pena;\n2. The defendant acted intentionally or with reckless disregard and without justification. T o find that the defendant acted with reckless disregard, you must find that the defendant knew or should have known the defendant\u2019s conduct created a substantial and foreseeable risk, the defendant disregarded that risk and the defendant was wholly indifferentto the consequences ofthe conduct and to the welfare and safety of Breandra Pena;\n3. The defendant\u2019s actions resulted in the death of Breandra Pena;\n4. Breandra Pena was under the age of 12;\n5. This happened in New Mexico, on or about the 8[th] day of March, 2011.\nInstruction number four defined \u201cintentionally\u201d as set out in UJI 14-610 NMRA: \u201cA person acts intentionally when the person purposely does an act. Whether the defendant acted intentionally may be inferred from all of the surrounding circumstances, such as the defendant\u2019s actions or failure to act, conduct and statements.\u201d\nInstruction number thirteen was a type of instruction\u201ccommonly referred to as a \u2018step-down\u2019 instruction,\u201d and directed the jury on the use of the special interrogatory forms. See State v. Garcia, 2005-NMCA-042, \u00b6 18, 137 N.M. 315, 110 P.3d 531 (discussing the proper use of UJI 14-250 NMRA, the step-down instruction used for varying levels of homicide offenses). The instruction read as follows:\nIf you find the defendant guilty of abuse of a child resulting in death, then you must determine whether the crime was committed intentionally or with reckless disregard. You must complete the special form to indicate your finding. For you to make a finding that the crime was committed intentionally, the state must prove to your satisfaction beyond a reasonable doubt that the crime was committed intentionally. If you decide the crime was committed intentionally, than [sic] this is the only special form you complete. If you have reasonable doubt that the crime was committed intentionally, then you must decide whether the crime was committed with reckless disregard. For you to make a finding that the crime was committed with reckless disregard, the state must prove to your satisfaction beyond a reasonable doubt that the crime was committed with reckless disregard. If you decide the crime was committed with reckless disregard, then this is the only special form youcomplete. If you have reasonable doubt that the crime was not committed with intentionally or with reckless disregard, then you must find the defendant not guilty of abuse of a child resulting in death.\nThe special interrogatory form read: \u201cDo you unanimously find beyond a reasonable doubt that the crime of abuse of a child resulting in death was committed intentionally?_____ (Yes orNo).\u2019\u2019The jury foreperson wrote \u201cyes\u201d on the line. A second special interrogatory form asked the same question about reckless disregard. The jury did not complete this form.\nDuring its deliberation, the jury sent a question to the district court requesting the definition of reckless disregard comparable to the definition of intent provided in instruction number four. The district court suggested, and both parties agreed, that there was no further definition the district court could provide. Accordingly, the district court told the jury that the legal definition of reckless disregard was already contained in instruction number three, paragraph two.\nDefendant argues that the jury instructions misstated the law and confused or misdirected the jury. We acknowledge the inconsistencies between our case law and our jury instructions noted by the district court and the attorneys in the proceedings below. Nonetheless, we find the facts of this case distinguishable from previous cases in which we have reversed convictions of child abuse based on faulty juryinstructions. We conclude that the use of our current instructions, as supplemented by the district court, was sufficient to properly instruct the jury in this case and therefore affirm Defendant\u2019s conviction.\n2. Standard of review\n\u201cThe standard of review we apply to jury instructions depends on whether the issue has been preserved. If the [issue] has been preserved we review the instruction for reversible error.\u201d Cabezuela, 2011-NMSC-041, \u00b6 21, 150 N.M. 654, 265 P.3d 705 (alteration in original) (internal quotation marks and citations omitted). In this case, Defendant preserved the issue by objecting to the instruction which combined the elements of intentional and reckless abuse, and to the special interrogatory form. See id. (\u201cIn this case, defense counsel preserved the jury instruction claim when he objected to the inclusion of the words \u2018failure to act\u2019 in Instruction No. 3, and therefore, we review for reversible error.\u201d). Accordingly, this Court\u2019s review of the instruction is for reversible error. See id. \u201cReversible error arises if. . . a reasonable juror would have been confused or misdirected.\u201d Id. \u00b6 22 (omission in original) (internal quotation marks and citation omitted). \u201c[Jury instructions] are to be read and considered as a whole and when so considered they are proper if they fairly and accurately state the applicable law.\u201d Id. \u00b6 21 (alteration in original) (internal quotation marks and citation omitted).\n3. The jury instructions in this case do not constitute reversible error\nDefendant argues that Cabezuela stands for the proposition that error occurs where the elements of both intentional and reckless child abuse are contained in one instruction. Defendant misreads the holding of Cabezuela. In Cabezuela, the defendant was charged with intentional child abuse resulting in the death of a child under twelve years of age contrary to Sections 30-6-l(D)(l) and 30-6-l(H). Cabezuela, 2011-NMSC-041, \u00b6\u00b6 16, 27. The district court issued an elements instruction which read, in relevant part: \u201c[The defendant] caused [the baby] to be placed in a situation which endangered the life or health of [the baby]; . . . [the] defendant acted intentionally; . . . [the defendant\u2019s] actions or failure to act resulted in the [baby\u2019s death].\u201d Id. \u00b6 18. The defendant was convicted of intentional child abuse resulting in death. Id. \u00b6 15.\nThis Court held that the elements instruction was a misstatement of the law because it included \u201cfailure to act,\u201d which was aligned with a theory of reckless child abuse, an offense with which the defendant was not charged. Id. \u00b6\u00b6 33, 36. The Court concluded that the jury was misdirected by the instructions tendered because the jury could have convicted the defendant for intentional child abuse, the only crime with which she was properly charged, based on an instruction indicating a theory of reckless child abuse. Id. \u00b6 36.\nWe find the error in Cabezuela distinguishable from the purported error in this case. The defendant in Cabezuela was not charged with reckless child abuse, yet the jury instructions indicated a theory of reckless child abuse. Id. \u00b6\u00b6 27, 34. Because the jury instructions used in Cabezuela suggested two distinct theories of child abuse, intentional and reckless, and no definition of reckless abuse was provided, the jury could have convicted the defendant of intentional child abuse based on a theory of recklessness. Id. \u00b6\u00b6 34, 36. Therefore, we held that the jury instructions constituted reversible error. Id. \u00b6 36.\nIn the instant case, because the special verdict forms clearly indicated which crime Defendant was convicted of, we hold that the jury instructions do not constitute reversible error. In Cabezuela, the jury instructions made it impossible to discern whether the defendant was convicted of intentional child abuse, for which she was charged, or for reckless child abuse, for which she was not charged. Id. \u00b6 36. Here, Defendant was charged with both intentional and reckless child abuse. The jury was instructed on the definitions of reckless acts, in Instruction 3, and intentional acts, in Instruction 4. The special forms provided to the jury made it very clear which crime Defendant was convicted of: intentional child abuse resulting in the death of a child under twelve years of age.\nD efendant is correct in noting that in Cabezuela, \u201cwe suggested] that there should be separate instructions for negligent and intentional child abuse.\u201d Id. \u00b6 37. Read in the context of the Cabezuela opinion, this suggestion was made in order to avoid verdicts which do not clearly indicate whether the jury finds the defendant guilty of intentional or reckless child abuse. In fact, we recently noted in Consaul, albeit in the context of child abuse resulting in great bodily harm, not death, that the purpose of requesting separate instructions is so that the jury\u2019s verdict is made clear. See 2014-NMSC-030, \u00b6 23 (\u201cWhen two or more different or inconsistent acts or courses of conduct are advanced by the State as alternative theories as to how a child\u2019s injuries occurred, then the jury must make an informed and unanimous decision, guided by separate instructions, as to the culpable act the defendant committed and for which he is being punished.\u201d).\nWe emphasize that the overriding concern in this case, as it was in Cabezuela, is that the jury\u2019s verdict must be clear about the crime of which the defendant was convicted. As in Cabezuela, the distinction in this case between reckless and intentional conduct is critical because the child abuse resulted in the death of a child under twelve. We have repeatedly explained that the Legislature, in that limited circumstance, has chosen to impose different punishments based solely on the defendant\u2019s mental state. See Consaul, 2014-NMSC-030, \u00b6\u00b6 21-23 (explaining that the punishments for intentional and reckless child abuse resulting in the death of a child under twelve are life in prison and 18 years in prison, respectively); Cabezuela, 2011-NMSC-041, \u00b6 33 (same), State v. Garcia, 2010-NMSC-023, \u00b6\u00b69-13, 148 N.M. 414, 237 P.3d 716 (same).\nClear jury instructions with respect to the defendant\u2019s mental state, therefore, are necessary when the abuse results in the death of a child under twelve to properly determine the offense of which Defendant has been found guilty and to guarantee that the verdict is not the result of confusion. We held in Cabezuela that separate instructions are one way to achieve that result. See 2011-NMSC-041, \u00b6 37 (suggesting that the UJI Committee for Criminal Cases draft separate instructions for intentional and reckless child abuse). We hold that the district court\u2019s approach in this case was similarly effective, which consisted of using our current jury instructions to clearly define reckless and intentional conduct and providing a step-down instruction with special interrogatories to ensure a unanimous verdict about the element separating the two offenses. We commend the district court for crafting a solution that harmonized our current jury instructions with the concerns raised in our case law.\nWe also reiterate that, while the distinction between reckless and intentional conduct was critical in this case, that distinction is often immaterial when the child abuse does not result in the death of a child under twelve. As we recently explained in Consaul, the Legislature has chosen to punish all other types of child abuse the same with respect to the defendant\u2019s mental state. See 2014-NMSC-030, \u00b6 22 (\u201cHere, in contrast, the punishment for child abuse resulting in great, bodily harm, whether done knowingly, intentionally, negligently, or recklessly, is the same.\u201d); see also NMSA 1978, \u00a7 3 0-6-1(E) (providing that, whether committed knowingly, intentionally, or negligently, child abuse resulting in great bodily harm is a first-degree felony; that a conviction for a first offense of child abuse not resulting in death or great bodily harm is a third degree felony; and that all subsequent convictions are second degree felonies); \u00a7 30-6-l(F) (providing that negligent child abuse resulting in the death of a child is a first degree felony); \u00a7 30-6-1 (G) (providing that intentional child abuse of a child twelve to eighteen years of age is a first degree felony). As a result, in most cases when the abuse does not result in the death of a child under twelve, it is not necessary to specify the defendant\u2019s mental state or to provide separate jury instructions for reckless or intentional conduct; evidence that the defendant acted \u201cknowingly, intentionally or [recklessly]\u201d will suffice to support a conviction. Section 30-6-1 (D) (emphasis added); cf. Consaul, 2014-NMSC-030, \u00b6 23 (\u201cNotwithstanding this lack of difference in penalty, child abuse resulting in great bodily harm will sometimes also require separate jury instructions . . . .\u201d (emphasis added)). Accord Model Penal Code \u00a7 2.02(5) (\u201cWhen recklessness suffices to establish an element, such element also is established if a person acts purposely or knowingly.-\u201d).\nWe conclude that the step-down instruction and special forms used in this case sufficiently clarified that the jury found Defendant guilty of intentional child abuse resulting in the death of a child under twelve years of age. Accordingly, Defendant\u2019s conviction is affirmed.\n4. Reckless child abuse resulting in the death of a child under twelve is a lesser-included offense of intentional child abuse resulting in the death of a child under twelve\nOur conclusion that the district court properly instructed the jury in this case compels us to clarify another aspect of our case law related to our child abuse jury instructions: whether reckless child abuse may be a lesser-included offense of intentional child abuse. Several opinions of this Court and of the Court of Appeals have touched on this issue, though none have addressed it conclusively. We do so now to avoid confusion about our approval of the district court\u2019s use of a step-down instruction, a type of instruction typically reserved for lesser-included offenses. See UJI 14-250 (providing the jury procedure for various degrees of homicide); Garcia, 2005-NMCA-042, \u00b6 18 (discussing the proper procedure under UJI 14-250); UJI 14-6002 NMRA (providing the jury procedure for considering a \u201cnecessarily included offense\u201d).\nOur Court of Appeals first addressed this issue, although somewhat obliquely, in State v. Schoonmaker, when it had to decide the analytically opposite question for double jeopardy purposes: whether intentional child abuse is a lesser-included offense of reckless child abuse. See 2005-NMCA-012, \u00b6\u00b6 14-16, 136 N.M. 749, 105 P.3d 302 (\u201cSchoonmaker P\u2019), rev\u2019d on other grounds by State v. Schoonmaker, 2008-NMSC-010, \u00b6\u00b6 1, 54, 143 N.M. 373, 176 P.3d 1105 {\u201cSchoonmakerIP\u2019), overruled by Consaul, 2014-NMSC-030, \u00b638. The Court rightly observed that \u201cthe statutory elements for intentional and negligent child abuse reveal[] that each offense contains an element that the other does not: the mens rea element.\u201d Id. \u00b6 '25. It further reasoned \u201cthat these two statutes are mutually exclusive \u2014 one cannot commit an intentional act and an unintentional but substantially risky act at the same time, even though the act is voluntary as to both and the evidence may be sufficient to charge both offenses as alternative theories.\u201d Id. \u00b6 27. The Court of Appeals therefore \u201c[held] that the crime of intentional child abuse is not the same crime or lesser included crime of negligent child abuse,\u201d and affirmed the defendant\u2019s convictions. Id. \u00b6\u00b6 27, 38.\nWe granted certiorari and reversed the Court of Appeals on different grounds. See Schoonmaker II, 2008-NMSC-010, \u00b6 1 (reversing the defendant\u2019s convictions and remanding for a new trial due to ineffective assistance of counsel). However, we addressed the defendant\u2019s double jeopardy argument \u201cto avoid repetition of any similar errors on retrial.\u201d Id. \u00b6\u00b6 41, 46-49. In a footnote to that discussion, \u201c[w]e agree[d] with the Court of Appeals\u2019 analysis . . . and its holding that intentional child abuse is not the same crime as, or a lesser included offense of, negligent child abuse.\u201d Id. \u00b6 46 n.4. We also explicitly approved of the Court of Appeals\u2019 reasoning that intentional and reckless child abuse are \u201cmutually exclusive\u201d crimes. Id.\nSchoonmaker I\u2019s holding that these crimes are mutually exclusive, which we endorsed in Schoonmaker II, became the basis for the proposition not only that intentional child abuse is not a lesser-included crime of reckless child abuse, but also that reckless child abuse is not a lesser-included crime of intentional child abuse. See State v. Davis, 2009-NMCA-067, \u00b6 9, 146 N.M. 550, 212 P.3d 438 (\u201c[N]egligent [now \u201creckless\u201d] child abuse is not a lesser-included offense of intentional child abuse.\u201d (citing Schoonmaker II, 2010-NMSC-010, \u00b6 46 n.4)). We continue to agree that intentional child abuse is not a lesser-included offense of reckless child abuse, but we now clarify that the Court of Appeals\u2019 conclusion that the two offenses are mutually exclusive went too far. As we explain below, the statutory elements of reckless child abuse resulting in the death of a child under twelve are a subset of the statutory elements of intentional child abuse resulting in the death of a child under twelve. We therefore hold that reckless child abuse resulting in the death of a child under twelve is a lesser-included offense of intentional child abuse resulting in the death of a child under twelve.\nA lesser-included offense is \u201ca less serious crime than the one charged, but one that an accused necessarily committed in carrying out the more serious crime.\u201d Bryan A. Garner, Garner\u2019s Dictionary of Legal Usage, 539, 3rd ed. 2011. In State v. Meadors, 1995-NMSC-073, \u00b6\u00b6 6, 12, 121 N.M. 38, 908 P.2d 731, this Court \u201cset[] forth the test for determining whether one offense is a lesser included offense of another.\u201d State v. Collins, 2005-NMCA-044, \u00b69, 137 N.M. 353, 110 P.3d 1090, overruledon other grounds by State v. Willie, 2009-NMSC-037, \u00b6 18, 146 N.M. 481, 212 P.3d 369. \u201cIn Meadors we explained that New Mexico follows two distinct approaches for analyzing whether one crime constitutes a lesser-included offense of another.\u201d State v. Campos, 1996-NMSC-043, \u00b6 20, 122 N.M. 148, 921 P.2d 1266. One is the cognate approach, which \u201crequires that only those crimes for which the'elements are sufficiently described in the charging document, and for which supporting evidence is adduced at trial, are presented to the jury as lesser-included offenses.\u201d Id. \u00b6 21; see also Meadors, 1995-NMSC-073, \u00b6 11 (clarifying that we refer to this \u201ctest simply as the cognate approach.\u201d). Having already concluded that, under the facts of this case, the jury was properly instructed on both theories of child abuse, we need not analyze the cognate approach. We therefore turn to the strict elements test, under which we conclude that reckless child abuse is a lesser-included offense of intentional child abuse. Under the strict elements test, \u201can offense [is] a lesser-included offense of another only if the statutory elements of the lesser offense are a sub-set of the statutory elements of the greater offense such that it would be impossible ever to commit the greater offense without also committing the lesser offense.\u201d Campos, 1996-NMSC-043, \u00b6 20.\nSection 30-6-1 (D) includes the crimes of both intentional and reckless child abuse:\nAbuse of a child consists of a person knowingly, intentionally or [recklessly], and without justifiable cause, causing or permitting a child to be:\n(1) placed in a situation that may endanger the child\u2019s life or health;\n(2) tortured, cruelly confined or cruelly punished; or\n(3) exposed to the inclemency of the weather.\nAlthough this statute lists the mental states of \u201cknowingly, intentionally, or [recklessly]\u201d together in Section 30-6-l(D), describing various crimes of child abuse, the crimes of intentional and reckless abuse resulting in the death of a child under twelve are distinguished by their respective sentences. Reckless child abuse resulting in the death of a child under twelve years of age is a first degree felony punishable by eighteen years imprisonment. NMSA 1978, \u00a7 30-6-1 (F) (2009) (\u201cA person who commits [reckless] abuse of a child that results in the death of the child is guilty of a first degree felony.\u201d); NMSA 1978, \u00a7 31-18-15(A)(3) (2003) (stating that the basic sentence for a first degree felony is eighteen years imprisonment). Conversely, intentional child abuse resulting in the death of a child under twelve is punishable by life imprisonment. Section 30-6-l(H) (\u201cA person who commits intentional abuse of a child less than twelve years of age that results in the death of the child is guilty of a first degree felony resulting in the death of a child.\u201d); NMSA 1978, Section 31-18-15(A)(1) (2005) (stating that the basic sentence for a first degree felony resulting in the death of a child is life imprisonment). All of the elements of these two crimes are contained in one Section: Section 30-6-l-(D). However, the sentences for these crimes are contained in separate Sections, which distinguish one crime from the other on the sole basis of the level of mens rea required. See \u00a7\u00a7 30-6-1 (F) (reckless) and 30-6-1 (H) (intentional). Thus, we agree with Schoonmaker I that the only distinction between the two crimes is the level of mens rea required: either intentional or reckless. See 2005-NMCA-012, \u00b6 25.\nHowever, we disagree that intentional andreckless conduct are \u201cmutually exclusive.\u201d One can commit child abuse recklessly without acting intentionally, but one cannot intentionally commit child abuse without \u201cconsciously disregarding] a substantial and unjustifiable risk,\u201d the definition of recklessness. See Consaul, 2014-NMSC-030, \u00b6 37 (citing Model Penal Code Section 2.02(2)(c) for definition of \u201crecklessly\u201d); cf. State v. Garcia, 1992-NMSC-048, \u00b6 21, 114 N.M. 269, 837 P.2d 862 (\u201cEven though an intentional killing includes the element of knowledge of a strong probability of death or great bodily harm, the converse is not necessarily true; a killing with knowledge of the requisite probability does not necessarily include an intentional killing.\u201d). We therefore disavow the reasoning in Schoonmaker I and all other precedent agreeing that intentional and reckless child abuse are mutually exclusive crimes. We clarify that reckless child abuse resulting in the death of a child under twelve is a lesser-included offense of intentional child abuse resulting in the death of a child under twelve.\nWe emphasize that when district courts are required to determine whether to grant a requested instruction on a lesser-included offense, Meadors requires analysis of both the strict element's test and the cognate approach, which \u201cfocuses upon both the charging instrument and the evidence adduced at trial.\u201d 1995-NMSC-073, \u00b6\u00b6 6, 11, 12. When a defendant is charged with intentional child abuse resulting in the death of a child under twelve, the instruction on the lesser-included offense of reckless child abuse should only be given if the evidence could support such a theory. See State v. Ulibarri, 1960-NMSC-102, \u00b6 8, 67 N.M. 336, 355 P.2d 275 (stating that \u201cthe trial court must instruct the jury in every degree of the crime charged when there is evidence in the case tending to sustain such degree.\u201d). We further conclude that, when it is appropriate to instruct the jury on the lesser-included crime, it is also appropriate to provide a step-down instruction providing the process by which the jury should consider each charge. Because we hold that both offenses were correctly instructed in this case, we conclude that the use of a step-down instruction was appropriate.\nOur holding may have important implications in the charging of future child abuse offenses. \u201cWhen one offense is a lesser included offense of a crime named in a charging document, the defendant is put on notice that he [or she] must defend not only against the greater offense as charged but also against any lesser included offense.\u201d Collins, 2005-NMCA-044, \u00b6 8; see also Davis, 2009-NMCA-067, \u00b6 8 (\u201cIt is improper to instruct the jury as to a crime not formally charged if that crime is not a lesser[-]included offense of the crime formally charged.\u201d (alteration in original)). \u201cThe defendant\u2019s constitutional right to notice of the crime against which he must defend -is a consideration that arises when ... the State requests a jury instruction on a lesser-included offense over the defendant\u2019s objection.\u201d Meadors, 1995-NMSC-073, \u00b6 5. Therefore, when a defendant is charged with intentional child abuse resulting in the death of a child under twelve, he or she will be on notice to defend against both intentional and reckless child abuse resulting in the death of a child under twelve when the abuse results from the same conduct or course of conduct. Cf. Consaul, 2014-NMSC-030, \u00b6 24 (requiring separate instructions when the State advanced two \u201cdifferent and inconsistent theories\u201d as to the conduct or course of conduct amounting to child abuse).\nB. Admission of Expert Testimony\nDefendant alleges that the district court erred by allowing the expert forensic pathologist to testify that Baby Breandra died of a \u201cconstellation of injuries\u201d and that \u201cit was impossible to tell which one might have been the lethal injury or in which order they may have been inflicted.\u201d He asserts that the testimony lacked specificity and allowed the jury to speculate on the cause of death. Defendant\u2019s argument is not developed beyond this bald assertion, and he makes only vague reference to Rules 11-702 to -704 NMRA to support it. Those rules establish the criteria for expert opinion testimony, but Defendant does not explain how they were violated or otherwise support his contention. Nonetheless, we address this argument.\n1. Preservation\n\u201cIn order to preserve an issue for appeal, a defendant must make a timely objection that specifically apprises the trial court of the nature of the claimed error and invokes an intelligent ruling thereon.\u201d State v. Walters, 2007-NMSC-050, \u00b6 18, 142 N.M. 644, 168 P.3d 1068 (internal quotation marks and citation omitted); Rule 12-216(A) NMRA (\u201cTo preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked . . . .\u201d). As the State points out, Defendant failed to object to this testimony and therefore failed to preserve this claim of error for appeal.\n2. Standard of review\nBecause Defendant did not preserve this argument, we review it for plain error. \u201cUnder [Rule 11-103(D)-(E) NMRA], this Court may review evidentiary questions although not preserved if the admission of the evidence constitutes plain error.\u201d State v. Contreras, 1995-NMSC-056, \u00b6 23, 120 N.M. 486, 903 P.2d 228. \u201cThe plain-error rule, however, applies only if the alleged error affected the substantial rights of the accused.\u201d Id. To find plain error, the Court \u201cmust be convinced that admission of the testimony constituted an injustice that created grave doubts concerning the validity of the verdict.\u201d Id. (internal quotation marks and citation omitted). Further, \u201c[i]n determining whether there has been plain . . . error, we must examine the alleged errors in the context of the testimony as a whole.\u201d State v. Dylan J., 2009-NMCA-027, \u00b6 15, 145 N.M. 719, 204 P.3d 44 (omission in original) (internal quotation marks and citation omitted).\n3.The admission of Dr. Krinsky\u2019s testimony was not plain error\nIn State v. Lucero, we reviewed the admission of expert testimony for plain error. 1993-NMSC-064, \u00b6 13, 116 N.M. 450, 863 P.2d 1071. The expert in that case was a psychologist who interviewed a child who complained about sexual abuse by her uncle. Id. \u00b6\u00b6 2-3. The State asked that the expert interview the child prior to trial to determine the child\u2019s competency. Id. \u00b6 3. The expert testified that the child suffered from post traumatic stress syndrome and that many of the child\u2019s symptoms were consistent with those found in children who have been sexually abused. Id. \u00b6 4. The sexual abuse, the expert testified, caused the post traumatic stress syndrome. Id. As part of this testimony, the expert recounted several statements the child made directly to her, and commented on the demeanor and credibility of the child. Id. \u00b6\u00b6 6-7.\nWe held that the admission of this testimony was not harmless error \u201c[bjecause [the expert] repeated so many of the complainant\u2019s statements regarding the alleged sexual abuse by the defendant and because she commented directly and indirectly upon the complainant\u2019s truthfulness.\u201d Id. \u00b6 22. We reasoned that the expert\u2019s \u201ctestimony in [that] case really amounted to a repetition of the complainant\u2019s statements regarding sexual abuse made to her during her evaluation\u201d and \u201c[i]n so many words, [the expert] testified that the complainant had in fact been molested.\u201d Id. \u00b6 21. In addition, \u201c[the expert] went a step further and stated that it was the defendant who abused the complainant,\u201d and \u201c[s]he also commented that the complainant\u2019s statements were truthful.\u201d Id. We concluded that because the child\u2019s credibility was a central issue in the case, and because she and her uncle were the only witnesses to the alleged abuse, it was likely that the jury was swayed by the expert\u2019s testimony. Id. \u00b6 22. Accordingly, we expressed \u201cgrave doubts concerning the validity of the verdict and the fairness of the trial.\u201d Id.\nIn the case at bar, the record reflects that the piece of Dr. Krinsky\u2019s testimony that Defendant selectively relies on to support his argument comes from a colloquy in which Dr. Krinsky identified \u201cmultiple blunt force injuries\u201d as the cause of Baby Breandra\u2019s death. Dr. Krinsky intimated that a brain injury could have in fact been the fatal blow, but affirmatively asserts that the cause of death was the multiple' blunt force injuries. While Dr. Krinsky identified several injuries, she was specific in stating that the injuries together were the cause of death. We find it difficult to imagine how this testimony coirld lead to jury speculation about the cause of death. Further, Dr. Krinsky made no assertions that Defendant caused these injuries, unlike in Lucero, where the expert stated the child\u2019s uncle molested her. Finally, unlike Lucero, where the expert likely sealed the defendant\u2019s fate with her testimony alone, in this case there is ample evidence outside of Dr. Krinsky\u2019s testimony to support the jury\u2019s finding of guilt. Accordingly, we hold that the admission of Dr. Krinsky\u2019s testimony was not plain error.\nC. Sufficiency of the Evidence\nDefendant claims thatthe State failed to present sufficient evidence to prove beyond a reasonable doubt that Baby Breandra\u2019s injuries were intentional or recklessly inflicted, rather than accidental. Defendant argues that although the evidence presented established that Baby Breandra suffered a constellation of injuries, there was no evidence presented to show that Defendant caused those injuries, either intentionally or recklessly. Defendant cites no cases regarding sufficiency of evidence in support of this argument, and instead cites State v. Franklin, 1967-NMSC-151, 78 N.M. 127, 428 P.2d 982 and State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1. Beyond this, Defendant\u2019s argument is undeveloped.\nThe State argues that the evidence presented was sufficient to support Defendant\u2019s conviction. The State asserts that the evidence that Baby Breandra was uninjured before being left alone with Defendant, that the medical experts determined that the types of injuries Baby Breandra suffered could not have been accidental, and that Defendant admitted to hitting the baby, was sufficient to support Defendant\u2019s conviction. \u25a0\n1. Standard of review\nIn reviewing the sufficiency of the evidence, \u201c[t]he reviewing court view[s] the 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.\u201d State v. Guerra, 2012-NMSC-027, \u00b6 10, 284 P.3d 1076 (second alteration in original) (internal quotation marks and citation omitted). \u201cThe test for sufficiency of the evidence is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt with respect to every element essential to a conviction.\u201d Id. (internal quotation marks and citation omitted). \u201cThe question before [the] reviewing [c]ourt is not whether [the court] would have had a reasonable doubt [about guilt] but whether it would have been impermissibly unreasonable for a jury to have concluded otherwise.\u201d Id. (second and fourth alterations in original) (internal quotation marks and citation omitted). \u201cIn our determination of the sufficiency of the evidence, we are required to ensure that a rational jury could have found beyond a reasonable doubt the essential facts required for a conviction.\u201d State v. Duran, 2006-NMSC-035, \u00b6 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks and citation omitted). \u201cContrary evidence supporting acquittal does not provide a basis for reversal because the jury is free to reject Defendant\u2019s version of the facts.\u201d Id. (internal quotation marks and citation omitted). We do \u201cnot evaluate the evidence to determine whether some hypothesis could be designed which is consistent with a finding of innocence,\u201d and we do \u201cnot weigh the evidence [or] substitute [our] judgment for that of the fact finder so long as there is sufficient evidence to support the verdict.\u201d State v. Sutphin, 1988-NMSC-031, \u00b6 21, 107 N.M. 126, 753 P.2d 1314.\n\u201c[T]he test to determine the sufficiency of evidence in New Mexico ... is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction.\u201d Id. \u201cSubstantial evidence is relevant evidence [that] a reasonable mind might accept as adequate to support a conclusion.\u201d In re Gabriel M., 2002-NMCA-047, \u00b6 22, 132 N.M. 124, 145 P.3d 64 (alteration in original) (internal quotation marks and citation omitted). \u201cJust because the evidence supporting the conviction was circumstantial does not mean it was not substantial evidence.\u201d Id. (internal quotation marks and citation omitted). \u201cIntent is subjective and is almost always inferred from other facts in the case, as it is rarely established by direct evidence.\u201d State v. Sosa, 2000-NMSC-036, \u00b6 9, 129 N.M. 767, 14 P.3d 32 (internal quotation marks and citation omitted).\n2. The evidence presented was sufficient to support Defendant\u2019s conviction for intentional child abuse\nIn order to present sufficient evidence for the jury to convict Defendant of intentional child abuse resulting in the death of a child under twelve,\nthe State was required to prove beyond a reasonable doubt that (1) Defendant caused Baby [Breandra] to be placed in a situation which endangered her life or health, or tortured or cruelly confined or punished Baby [Breandra]; (2) Defendant acted intentionally; . . . (3) Defendant\u2019s actions resulted in the death of or great bodily harm to Baby [Breandra];\n(4) Baby Breandra was under the age of twelve; and (5) this happened in New Mexico. Walters, 2007-NMSC-050, \u00b6 28; see also UJI 14-602 NMRA; \u00a7 30-6-1 (H).\nThe State proved the first and second elements with Defendant\u2019s own statement that \u201cI slapped her. I got her by her ears and she didn\u2019t want to keep quiet.\u201d This statement demonstrates that Defendant endangered the baby\u2019s health, and that he acted intentionally. Further, with the forensic pathologist\u2019s testimony that the constellation of injuries on Baby Breandra\u2019s body were intentional and that the manner of death was homicide, the State showed that the injuries she suffered could not have been caused by accident. Contra Consaul, 2014-NMSC-014, \u00b6 56 (finding insufficient evidence of child abuse resulting in great bodily harm by intentional suffocation when \u201cexpert medical testimony provided the only evidence that [the child] may have been smothered \u2014 that a crime had occurred \u2014 and that [the child] had not been injured by other, noncriminal causes.\u201d). The State proved the third element, that Defendant\u2019s actions resulted in the baby\u2019s death, with testimony from Defendant\u2019s friend Derek Vigil that he had visited Defendant at home on March 8, 2011, and when he left around 11:30 a.m. or noon, he did not see any signs that Baby Breandra was in distress. This shows that the baby was in good health before she was left alone with Defendant. In conjunction, these facts show that Defendant was the only person with the baby when she was intentionally injured, proving that Defendant\u2019s acts caused the baby\u2019s death. The State proved element four by showing that Baby Breandra\u2019s birthday was September 24, 2009, and she died on March 8,2011. Finally, the State proved the fifth element by showing that these events occurred in Espa\u00f1ola, New Mexico.\nViewing the evidence in the light most favorable to the verdict, the evidence the State presented in support of Defendant\u2019s conviction is enough that a rational juror could have found beyond a reasonable doubt the essential facts required for conviction. We therefore hold that sufficient evidence was presented to support Defendant\u2019s conviction.\nD. Ineffective Assistance of Counsel\nDefendant claimed that he was denied effective assistance of counsel. Claims of ineffective assistance of counsel are reviewed de novo. State v. Boergadine, 2005-NMCA-028, \u00b6 33, 137 N.M. 92, 107 P.3d 532. Defendant abandoned this claim, therefore we do not address it. Although we do not now comment on the merits of this claim, Defendant remains free to raise this issue in a collateral proceeding. See State v. Baca, 1997-NMSC-059, \u00b6 25, 124 N.M. 333, 950 P.2d 776 (\u201cA record on appeal that provides a basis for remanding to the trial court for an evidentiary hearing on ineffective assistance of counsel is rare. Ordinarily, such claims are heard on petition for writ of habeas corpus . . . .\u201d); State v. Telles, 1999-NMCA-013, \u00b6 25, 126 N.M. 593, 973 P.2d 845 (\u201cDefendant\u2019s proper avenue of relief [from ineffective assistance of counsel] is a post-conviction proceeding that can develop a proper record\u201d).\nE. Sentencing\nDefendant argues that the district court\u2019s failure to consider mitigating circumstances during sentencing constitutes an abuse of discretion, and asks this Court to remand the case for a new sentencing hearing. The State concedes that Defendant was entitled to present mitigating circumstances prior to sentencing. While we are not bound by the State\u2019s concessions on appeal, we agree with the parties and remand to the district court for resentencing, as we discuss below. See State v. Foster, 1999-NMSC-007, \u00b6 25, 126 N.M. 646, 974 P.2d 140 (stating that appellate courts are not bound by the State\u2019s concessions), abrogated on other grounds by Kersey v. Hatch, 2010-NMSC-020, \u00b6 17, 148 N.M. 381, 237 P.3d 683.\n1. Procedural background\nDefendant argues that during sentencing, the district court misunderstood its authority to alter the basic sentence of life imprisonment based on mitigating circumstances pursuant to Section 31-18-15.1(A)(1), and that such misunderstanding was an abuse of discretion. The State concedes this point, agreeing with Defendant that the district court misunderstood the law. The State acknowledges that Defendant was entitled to present claims of mitigating circumstances prior to sentencing, but does not agree that the district court should have altered Defendant\u2019s sentence based on the mitigating circumstances presented.\nAfter dismissing the jury, the district court proceeded immediately to sentencing. Upon being asked for its recommendation, the State asserted that the district court had no choice but to impose a life sentence. The State presented some of Baby Breandra\u2019s family members, including her mother, father, grandmother, and uncle, who all requested the maximum sentence of life in prison. Defendant presented his mother and godmother, who spoke to Defendant\u2019s good character.\nDefense counsel then requested that the district court consider mitigating circumstances under NMS A 1978, Section 31-18-15.1(A) (2009) (enhancement based on aggravating factors recognized as unconstitutional by State v. Frawley, 2007-NMSC-057, \u00b6 29, 143 N.M. 7, 172 P.3d 144). [4 Tr. 196:5-6] Defendant argued that the mitigating circumstances included the fact that he called the ambulance, cooperated with the police, and had spent a lot of time taking care of Baby Breandra and was close with her. Defendant asked the district court to mitigate up to one-third of the basic sentence.\nThe district court noted that \u201cthe law has reserved the stiffest penalties that the State of New Mexico can give [for cases in which] somebody injures or hurts or kills our most vulnerable, our children.\u201d The district court then stated that it did not believe it had the authority to alter the sentence because it believed the law required a mandatory life sentence. Accordingly, the district court imposed a life sentence. The State reminded the district court that Defendant had one prior felony conviction, subjecting him to a one-year habitual offender enhancement, which the district court then added to Defendant\u2019s life sentence.\n2. Standard of review\n\u201cWe review the trial court\u2019s sentencing for an abuse of discretion.\u201d State v. Sotelo, 2013-NMCA-028, \u00b6 37, 296 P.3d 1232 (internal quotation marks and citation omitted). \u201cThe district court has an obligation to consider mitigating factors in sentencing. Failure to do so, whether based on a misapprehension of the authority given by statute or a belief that a formal motion is required, is an abuse of discretion.\u201d Id. \u00b6 45.\n3. Defendant is entitled to resentencing because the district court\u2019s misunderstanding of its authority to alter the basic sentence based on mitigating circumstances was an abuse of discretion\n\u201cA person who commits intentional abuse of a child less than twelve years of age that results in the death of the child is guilty of a first degree felony resulting in the death of a child.\u201d Section 30-6-l(H). \u201c[T]he basic sentence ... for a first degree felony resulting in the death of a child [is] life imprisonment.\u201d Section 31-18-15(A)(1). \u201cThe appropriate basic sentence of imprisonment shall be imposed upon a person convicted and sentenced pursuant to [Section 31-18-15(A)], unless the court alters the sentence pursuant to the provisions of the Criminal Sentencing Act.\u201d NMSA 1978, \u00a7 31-18-15(B) (2007). \u201cThe court shall hold a sentencing hearing to determine if mitigating or aggravating circumstances exist and take whatever evidence or statements it deems will aid it in reaching a decision to alter a basic sentence.\u201d Section31-18-15.1 (A). \u201cThe judge may alter the basic sentence as prescribed in Section 31-18-15 . . . upon ... a finding by the judge of any mitigating circumstances surrounding the offense or concerning the offender.\u201d Section31-18-15.1 (A), (A)( 1). The amount by which the sentence may be mitigated must be determined by the judge, but may not exceed one-third of the basic sentence. Section 31-18-15.1(G) (2009).\nWe recently addressed the issue of whether a district court may mitigate a life sentence for a conviction of child abuse resulting in the death of a child under twelve in State v. Juan, 2010-NMSC-041, 148 N.M. 747, 242 P.3d 314. The defendant in Juan was convicted of \u201cchild abuse resulting in the death of a child under twelve years of age.\u201d Id. \u00b6 10. The district court declined to consider mitigating circumstances, concluding \u201cthat the Legislature intended that a life sentence be mandatory for child abuse resulting in death, reasoning that the statute provided that the alteration of a sentence could not exceed one-third of the basic sentence and one-third of a life sentence could not be calculated.\u201d Id. \u00b6 35.\nOn appeal to this Court, the defendant in Juan claimed that the district court erred by failing to consider mitigating circumstances. Id. \u00b6 36. We observed that \u201cSections31-18-15 and31-18-15.1 explicitly grant the trial court the authority to alter the basic sentence for all noncapital felonies, including those that carry a basic sentence of life imprisonment.\u201d Juan, 2010-NMSC-041, \u00b6 39. We noted that \u201c[a] statute must be construed so that no part of the statute is rendered surplusage or superfluous,\u201d and concluded that in order to conclude that district courts lacked authority to mitigate a basic life sentence for a conviction of child abuse resulting in death, we would have \u201cto read Subsections (A)(1) and (A)(2) out of Section 31-18-15, which we cannot and will not do.\u201d Juan, 2010-NMSC-041,\u00b6 39 (internal quotation marks and citation omitted). Thus, we held that \u201cSections 31-18-15 and31-18-15.1 grant the trial court the authority to alter the basic sentence of life imprisonment for noncapital felonies.\u201d Juan, 2010-NMSC-041, \u00b6 39. Further, we held \u201cthat the thirty-year term for parole eligibility is the proper numerical standard by which to measure the trial court\u2019s authority to alter a basic sentence of life imprisonment,\u201d and district courts could therefore reduce a life sentence by up to one-third of thirty, or ten years. Id. \u00b6 41.\nIn Juan, we also highlighted the Legislature\u2019s distinction between noncapital felonies, which carry a basic sentence of life imprisonment, and capital felonies, which carry a mandatory sentence of life imprisonment. Id. \u00b6 42. The basic sentence of life imprisonment for a first degree felony resulting in the death of a child is set out in the noncapital felony sentencing statute, Section 31-18-15(A)(1). Accordingly, we held that \u201c[ujnlike a mandatory sentence of life imprisonment, a basic sentence of life imprisonment is subject to alteration ... if the trial court finds \u2018any mitigating circumstances surrounding the offense or concerning the offender.\u2019\u201d Juan, 2010-NMSC-041, \u00b6 42 (quoting Section 31-18-15.1(A)(1)). We determined that the district court \u201cimproperly failed to consider mitigating evidence at [the djefendant\u2019s sentencing hearing pursuant to Sections 31-18-15 and 31-18-15.1.\u201d Juan, 2010-NMSC-041, \u00b6 43.\nHere, the district court\u2019s misunderstanding of its authority and obligation to consider mitigating circumstances, which resulted in its failure to consider altering the' basic sentence, was an abuse of discretion. Therefore, we reiterate that when issuing a basic life sentence subject to alteration, district courts have the authority, and the obligation, to consider potential mitigating circumstances, and we remand to the district court for resentencing to determine whether the sentence should be altered.\nIII. CONCLUSION\nWhile we acknowledge that it would have been ideal for the district court below to issue two completely separate instructions for the elements of intentional and reckless child abuse, we hold that the instructions issued, along with the special verdict forms, were sufficient as a whole to accurately instruct the jury on the law and do not constitute reversible error. In order to clarify our cases on child abuse jury instructions, we further hold that reckless child abuse resulting in the death of a child under twelve is a lesser-included offense of intentional child abuse resulting in the death of a child under twelve, and defendants should accordingly be on notice to defend against both. If a defendant is charged with intentional child abuse, and the evidence presented could support a theory of either intentional or reckless abuse, separate instructions for the elements of each theory should be given, along with a step-down instruction on the procedure for considering each theory.\nNext, we find no error in the district court\u2019s admission of Dr. Krinsky\u2019s expert testimony, and we find that sufficient evidence was presented to support Defendant\u2019s conviction. Finally, w;e hold that the district court\u2019s refusal to consider mitigating factors when sentencing Defendant, based on its belief that the sentence could not be altered, was an abuse of discretion. Thus, finding no reversible error, we affirm Defendant\u2019s conviction for intentional child abuse resulting in the death of a child under twelve, and remand to the district court for resentencing to decide whether Defendant\u2019s sentence should be altered based on the district court\u2019s consideration of potential mitigating factors.\nIT IS SO ORDERED.\nBARBARA J. VIGIL, Chief Justice\nWE CONCUR:\nPETRA JIMENEZ MAES, Justice\nRICHARD C. BOSSON, Justice\nEDWARD L. CH\u00c1VEZ, Justice\nCHARLES W. DANIELS, Justice\nWhile we acknowledge that \u201cnegligent child abuse\u201d was the language in use at the time of Defendant\u2019s indictment and trial, we now refer to it as \u201creckless child abuse\u201d in accordance with our holding \u201cthat what has long been called \u2018criminally negligent child abuse\u2019 should hereafter be labeled \u2018reckless child abuse\u2019 without any reference to negligence.\u201d State v. Consaul, 2014-NMSC-030, \u00b6 37, 332 P.3d 850. While we refer in the text and record citations only to \u201creckless,\u201d we do not endeavor in this opinion to retrofit every quotation containing reference to \u201cnegligent\u201d with \u201creckless.\u201d While Consaul addressed child abuse cases involving great bodily harm, rather than death, the same statute containing the now-renounced negligence language is at issue here, and thus we now expressly adopt the same rule that \u201c\u2018criminally negligent child abuse\u2019 should hereafter be labeled \u2018reckless child abuse\u2019 without any reference to negligence\u201d for oases of child abuse resulting in death. See id. \u00b6\u00b6 35-37.\nWe recently found error in Consaul when the district court failed to provide separate instructions for reckless and intentional child abuse resulting in great bodily harm because \u201cthe State\u2019s theories of how that hann occurred were different and inconsistent.\u201d 2014-NMSC-030, \u00b6 26. Separate instructions were necessary because the State advanced two \u201cdifferent or inconsistent acts or courses of conduct... as alternative theories as to how [the] child\u2019s injuries occurred.\u201d Id. \u00b6 23. The State originally argued that the defendant recklessly swaddled the child too tightly and laid him face down in his crib. See id. \u00b6 24. After the State\u2019s own experts testified that such conduct could not have caused the child\u2019s injuries, the State sought to prove for the first time that the defendant intentionally smothered the child by placing his hand or a pillow over the child\u2019s mouth. See id. We held that giving a single instruction that allowed the jury to pick between the State\u2019s two inconsistent factual theories was reversible error because it made it impossible to determine which theory the jury relied on to convict the defendant. See id. \u00b6\u00b6 25-26.", "type": "majority", "author": "VIGIL, Chief Justice." } ], "attorneys": [ "Jorge A. Alvarado, Chief Public Defender Nicole S. Murray, Assistant Appellate Defender Santa Fe, NM for Appellant", "Gary K. King, Attorney General Jacqueline R. Medina, Assistant Attorney General Santa Fe, NM for Appellee" ], "corrections": "", "head_matter": "IN THE SUPREME COURT OF THE STATE OF NEW MEXICO\nOpinion Number: 2015-NMSC-010\nFiling Date: March 12, 2015\nDocket No. 33,967\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. NATHAN MONTOYA, Defendant-Appellant.\nJorge A. Alvarado, Chief Public Defender Nicole S. Murray, Assistant Appellate Defender Santa Fe, NM for Appellant\nGary K. King, Attorney General Jacqueline R. Medina, Assistant Attorney General Santa Fe, NM for Appellee" }, "file_name": "0445-01", "first_page_order": 461, "last_page_order": 480 }