{ "id": 725479, "name": "STATE of New Mexico, Plaintiff-Appellee, v. George UNGARTEN, Defendant-Appellant", "name_abbreviation": "State v. Ungarten", "decision_date": "1993-06-10", "docket_number": "No. 14039", "first_page": "607", "last_page": "611", "citations": [ { "type": "official", "cite": "115 N.M. 607" }, { "type": "parallel", "cite": "856 P.2d 569" } ], "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": "115 N.M. 215", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725427 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "222", "parenthetical": "trial court erred in failing to instruct jury on standard of criminal negligence" }, { "page": "365", "parenthetical": "trial court erred in failing to instruct jury on standard of criminal negligence" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0215-01" ] }, { "cite": "100 N.M. 479", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588584 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "481", "parenthetical": "where evidence at trial supports an instruction on a defense raised by accused, failure to instruct constitutes reversible error" }, { "page": "654", "parenthetical": "where evidence at trial supports an instruction on a defense raised by accused, failure to instruct constitutes reversible error" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0479-01" ] }, { "cite": "110 N.M. 76", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716944 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "80" }, { "page": "412" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0076-01" ] }, { "cite": "95 N.M. 233", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575616 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "235" }, { "page": "889" } ], "opinion_index": 0, "case_paths": [ "/nm/95/0233-01" ] }, { "cite": "104 N.M. 247", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594973 ], "weight": 3, "pin_cites": [ { "page": "249" }, { "page": "1270" } ], "opinion_index": 0, "case_paths": [ "/nm/104/0247-01" ] }, { "cite": "58 N.M. 446", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587670 ], "weight": 4, "year": 1954, "pin_cites": [ { "page": "455" }, { "page": "666" }, { "page": "455" }, { "page": "666" } ], "opinion_index": 0, "case_paths": [ "/nm/58/0446-01" ] }, { "cite": "16 Kan.App.2d 321", "category": "reporters:state", "reporter": "Kan. App. 2d", "case_ids": [ 356956 ], "weight": 2, "year": 1991, "pin_cites": [ { "parenthetical": "self-defense may under certain circumstances be raised as a defense to a charge of child abuse" }, { "page": "215", "parenthetical": "self-defense may under certain circumstances be raised as a defense to a charge of child abuse" } ], "opinion_index": 0, "case_paths": [ "/kan-app-2d/16/0321-01" ] }, { "cite": "96 N.M. 692", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577305, 1577403 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/nm/96/0692-01", "/nm/96/0692-02" ] }, { "cite": "95 N.M. 636", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575443 ], "weight": 2, "pin_cites": [ { "page": "639" }, { "page": "1036" } ], "opinion_index": 0, "case_paths": [ "/nm/95/0636-01" ] }, { "cite": "844 P.2d 130", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1992, "pin_cites": [ { "parenthetical": "where the defendant left his child in his car with his wife while he bought a minor amount of heroin nearby, there was insufficient evidence to indicate that the child, from mere proximity to the drug transaction, \"was in fact placed in danger\" to support child abuse conviction" } ], "opinion_index": 0 }, { "cite": "114 N.M. 550", "category": "reporters:state", "reporter": "N.M.", "year": 1992, "opinion_index": 0 }, { "cite": "115 N.M. 27", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725481 ], "weight": 2, "pin_cites": [ { "page": "33" }, { "page": "340" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0027-01" ] }, { "cite": "230 Kan. 192", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 1428903 ], "weight": 2, "year": 1981, "pin_cites": [ { "parenthetical": "word \"may\" as used in Kansas child abuse statute given restrictive construction, indicating reasonable probability or likelihood the child would be placed in situation whereby that child's life or health will be endangered" }, { "page": "242", "parenthetical": "word \"may\" as used in Kansas child abuse statute given restrictive construction, indicating reasonable probability or likelihood the child would be placed in situation whereby that child's life or health will be endangered" } ], "opinion_index": 0, "case_paths": [ "/kan/230/0192-01" ] }, { "cite": "1 A.L.R.4th 38", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "pin_cites": [ { "page": "\u00a7 15" } ], "opinion_index": 0 }, { "cite": "48 Cal.Rptr. 677", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1966, "pin_cites": [ { "page": "680-81", "parenthetical": "actual injury to a child need not be proven where a statute declares it a crime to cause or permit a child to be placed in a situation dangerous to the child's life or health" } ], "opinion_index": 0 }, { "cite": "239 Cal.App.2d 393", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2161079 ], "year": 1966, "pin_cites": [ { "parenthetical": "actual injury to a child need not be proven where a statute declares it a crime to cause or permit a child to be placed in a situation dangerous to the child's life or health" } ], "opinion_index": 0, "case_paths": [ "/cal-app-2d/239/0393-01" ] }, { "cite": "577 P.2d 1256", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1978, "opinion_index": 0 }, { "cite": "91 N.M. 610", "category": "reporters:state", "reporter": "N.M.", "year": 1978, "opinion_index": 0 }, { "cite": "91 N.M. 554", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571101 ], "weight": 2, "pin_cites": [ { "page": "557" }, { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/nm/91/0554-01" ] }, { "cite": "104 N.M. 506", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594993 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "509" }, { "page": "980" } ], "opinion_index": 0, "case_paths": [ "/nm/104/0506-01" ] }, { "cite": "790 P.2d 1032", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1990, "opinion_index": 0 }, { "cite": "109 N.M. 751", "category": "reporters:state", "reporter": "N.M.", "year": 1990, "opinion_index": 0 }, { "cite": "109 N.M. 769", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590359 ], "weight": 2, "pin_cites": [ { "page": "771" }, { "page": "1052" } ], "opinion_index": 0, "case_paths": [ "/nm/109/0769-01" ] }, { "cite": "107 N.M. 126", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597058 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "131" }, { "page": "1319" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0126-01" ] }, { "cite": "114 N.M. 269", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731614 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "273-74" }, { "page": "866-67" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0269-01" ] } ], "analysis": { "cardinality": 800, "char_count": 16243, "ocr_confidence": 0.778, "pagerank": { "raw": 2.561325558953612e-07, "percentile": 0.81535989163847 }, "sha256": "487f3d9ec195a47decdbef80b72f2510e37d2aea0297dd1fa30ea80e2b0e0fd2", "simhash": "1:84aab3c976678623", "word_count": 2698 }, "last_updated": "2023-07-14T14:46:31.960097+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CHAVEZ and BLACK, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. George UNGARTEN, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nDONNELLY, Judge.\nDefendant appeals his conviction of child abuse (no death or great bodily harm) following a jury trial. Two issues are presented on appeal: (1) whether the charge of child abuse was supported by substantial evidence; and (2) whether the trial court erred in instructing the jury as to the elements of child abuse where Defendant has asserted a claim of self-defense. For the reasons discussed herein, we reverse.\nFACTS\nThe events giving rise to this case grew out of an altercation between Defendant and his neighbors. Defendant and Mary Hooper, Defendant\u2019s girlfriend and housemate, lived in one side of a duplex; the nearly eleven-year-old child, alleged to have been the victim of child abuse, and the child\u2019s mother lived in the adjoining duplex. On May 4, 1991, Defendant rebuked the child and told him in a stern manner to keep the gate to the back yard closed. The child reported this admonition to his mother, saying, \u201c \u2018George scared me,\u2019 \u201d and \u201c \u2018He just scared me real bad.\u2019 \u201d The mother, accompanied by the child, went next door to speak to Defendant about the incident. She knocked on Defendant\u2019s front door but got no response.\nAt this point, the child\u2019s father drove up and the mother informed her ex-husband that her neighbor had frightened their son. The child\u2019s father then went to Defendant's front door and began knocking on the door. Defendant was unable to find the key to open his front door and both he and the child\u2019s father exchanged profane remarks through the locked door. Hooper testified that the child\u2019s father threatened Defendant and demanded that Defendant open the door. Shortly thereafter, Defendant exited the house through the back door carrying a knife. Defendant testified he took the knife for self-defense. Defendant demanded that the child and the child\u2019s parents leave the property, and began gesturing with the knife in an angry manner. During the course of the argument, the father picked up a tree limb. Hooper testified that the father voiced threats toward Defendant and that she telephoned the police. Defendant testified that when he first exited his house he held the knife at his side, and that he only raised the knife after he had been struck on the arm with a tree limb picked up by the child\u2019s father.\nIn contrast to the testimony presented by Defendant, the child\u2019s mother and father testified that, as the incident progressed, Defendant became more agitated and began waving the knife around in a threatening manner, thereby menacing both the child and his parents; and that Defendant used the knife to cut at a trellis and vines near the front porch of his residence.\nThe child testified that his father held the tree limb in front of his body and fended off \u201c[o]ne or two\u201d jabs by Defendant. Although the child was not physically harmed by Defendant, the child testified that at one point during the altercation the knife wielded by Defendant came close to his body. The child testified that Defendant waved the knife around and he felt \u201clike my body and life was in danger.\u201d During most of the confrontation, the child was standing several feet behind his father and was later directed to get inside the father\u2019s van that was parked in the street. When Defendant drew back toward his house, the child\u2019s father followed him back to the porch, trying to get Defendant to come out from the front of his residence.\nWitnesses at the trial included the child, the child\u2019s father and mother, two neighbors, Defendant, Hooper, and four police officers. Testimony of the neighbors corroborated the fact that Defendant was acting in a loud, angry, and belligerent manner toward the child\u2019s father. Defendant testified that during the events in question his attention was focused on the child\u2019s father, not the child, and he denied endangering or harming the child.\nAfter the police arrived, Defendant was arrested and charged with three counts of aggravated assault (consisting of one count each against the child, the father, and the mother), and one count of child abuse. Following a jury trial, the jury acquitted Defendant of each of the three counts of aggravated assault on the child and his parents, but convicted Defendant of child abuse.\nI. SUFFICIENCY OF THE EVIDENCE\nDefendant argues that since the child was not physically injured or touched by him during the events in question, there was insufficient evidence to establish that he threatened or endangered the child so as to warrant submission of the charge of child abuse to the jury.\nIn reviewing a challenge to the sufficiency of the evidence to support a criminal conviction, we review the record to determine whether substantial evidence, either direct or circumstantial, exists such that a rational jury could have found proof beyond a reasonable doubt of facts with respect to every element essential to a conviction. State v. Garcia, 114 N.M. 269, 273-74, 837 P.2d 862, 866-67 (1992); see also State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). In applying this standard we view the evidence in a light most favorable to the State, resolving all conflicts therein and indulging all permissible inferences in favor of the verdict of the jury. State v. Cotton, 109 N.M. 769, 771, 790 P.2d 1050, 1052 (Ct.App.), cert. denied, 109 N.M. 751, 790 P.2d 1032 (1990).\nNMSA 1978, Section 30-6-l(C) (Cum.Supp.1992) has been characterized as a strict liability statute. State v. Leal, 104 N.M. 506, 509, 723 P.2d 977, 980 (Ct.App. 1986). Proof of criminal intent is not required to establish the crime of child abuse. State v. Fuentes, 91 N.M. 554, 557, 577 P.2d 452, 455 (Ct.App.), cert. denied, 91 N.M. 610, 577 P.2d 1256 (1978). A defendant may also be convicted of child abuse, even though the child does not suffer a physical injury. See \u00a7 30-6-l(C)(l) (child abuse may exist where a defendant places a child \u201cin a situation that may endanger the child\u2019s life or health\u201d); see also People v. Harris, 239 Cal.App.2d 393, 48 Cal.Rptr. 677, 680-81 (1966) (actual injury to a child need not be proven where a statute declares it a crime to cause or permit a child to be placed in a situation dangerous to the child\u2019s life or health); see generally Milton Roberts, Annotation, Validity and Construction of Penal Statute Prohibiting Child Abuse, 1 A.L.R.4th 38, \u00a7 15(c), at 86 (1980).\nIn order to prove the offense under Section 30-6-l(C)(l), the State is required to prove beyond a reasonable doubt that Defendant \u201cknowingly, intentionally or negligently, and without justifiable cause, ... placed [the child] in a situation that may endanger the child\u2019s life or health[.]\u201d (Emphasis added.) The term \u201cmay,\u201d as used in Section 30-6-l(C)(l), does not connote a mere possibility, however remote, that harm may result from Defendant\u2019s acts; instead, we conclude that the legislature intended the phrase \u201cmay endanger\u201d to convey a more restrictive meaning in child abuse cases, i.e., \u201ca reasonable probability or possibility\u201d that the child will be endangered. See State v. Fisher, 230 Kan. 192, 631 P.2d 239, 242 (1981) (word \u201cmay\u201d as used in Kansas child abuse statute given restrictive construction, indicating reasonable probability or likelihood the child would be placed in situation whereby that child\u2019s life or health will be endangered); cf. State v. Roybal, 115 N.M. 27, 33, 846 P.2d 333, 340 (Ct.App.), cert. denied, 114 N.M. 550, 844 P.2d 130 (1992) (where the defendant left his child in his car with his wife while he bought a minor amount of heroin nearby, there was insufficient evidence to indicate that the child, from mere proximity to the drug transaction, \u201cwas in fact placed in danger\u201d to support child abuse conviction).\nBoth the child and his parents testified that Defendant brandished the knife in a threatening and menacing manner. The child also testified that, at the beginning of the altercation, he was standing by his father and Defendant thrust the knife in such manner that he could not discern whether it was directed at him or his father.\nUnder the standard of review and statutory analysis discussed herein, we think reasonable minds could differ on whether Defendant\u2019s acts placed the child in a situation whereby a reasonable probability existed that the child\u2019s life or health would be endangered. Cf. State v. Gonzales, 95 N.M. 636, 639, 624 P.2d 1033, 1036 (Ct. App.) (conflicts in evidence and weight to be accorded to the testimony of witnesses are to be resolved by finder of facts), overruled on other grounds by Buzbee v. Donnelly, 96 N.M. 692, 634 P.2d 1244 (1981). Thus, we conclude that Defendant\u2019s claim of lack of substantial evidence to support the charge of child abuse is without merit and the trial court did not err in submitting this issue to the jury. Resolution of this issue, however, is not determinative of Defendant\u2019s guilt or innocence as to the charge of child abuse. We also address Defendant\u2019s second issue relating to the propriety of the instructions.\nII. REJECTION OF REQUESTED JURY INSTRUCTION\nDefendant tendered a proposed jury instruction that his acts in carrying and brandishing a knife during the incident in question were done in self-defense and that \u201c[tjhere was an appearance of immediate danger of bodily harm to the [Defendant as a result of [the child\u2019s father] picking up a club or stick to be used as a weapon and ... striking [Defendant] with the weapon[.]\u2019.\u2019 Although the trial court gave another requested defense instruction relating to Defendant\u2019s claim of self-defense to the charge of aggravated assault upon the child\u2019s father, the court refused Defendant\u2019s proposed self-defense instruction relating to the child-abuse charge. The refused instruction would have allowed the jury to consider Defendant\u2019s contention that his acts and use of the knife in protecting himself from the father could also be considered in connection with the State\u2019s assertions that his acts were without justifiable cause and unlawfully endangered the child\u2019s \u201clife or health.\u201d\nThe State contended at trial that Defendant was not entitled to a self-defense instruction incident to the charge of child abuse and that the jury was only entitled to consider the claim of self-defense incident to the charge of aggravated assault with a deadly weapon upon the child\u2019s father. Defendant\u2019s counsel submitted a requested self-defense instruction patterned upon SCRA 1986, 14-5181, arguing that Defendant proffered such instruction \u201cbecause I don\u2019t believe deadly force was used.\u201d According to the testimony of the child and his parents, during most of the time Defendant and the child\u2019s father were confronting each other, the child was beside or remained some distance behind his father. The child testified, however, that he was standing near his father at one point when Defendant jabbed the knife in such manner that it came within a close proximity to his body, and he could not tell if Defendant intended to direct the weapon toward him or his father.\nThe version of events given by Defendant and Hooper sharply contrasted from that related by the child and his parents. Defendant testified that because he did not know the child\u2019s father or who he was, and because the father made threats and demanded that he open the door to his home, he took a knife for protection when he went outside. Defendant also stated that he held the knife down at his side and did not raise it or point it at the father until the child\u2019s father picked up a \u201clog or club\u201d and hit him, causing him to partially fall.\nHooper testified that at the beginning of the confrontation she heard the child\u2019s father say in a loud voice, \u201c \u2018He better open the door, I am going to kick his [f-] ass.\u2019 \u201d She also stated the father told Defendant, \u201c T am going to bash your brains in.\u2019 \u201d Defendant denied assaulting, threatening or abusing the child and testified that his actions and brandishing of the knife were done in response to his fear that he was in danger of bodily harm from the child\u2019s father after he had been struck by the log or limb.\nIf there is sufficient evidence to raise a reasonable doubt as to whether Defendant\u2019s use of the knife was in self-defense, it was error to limit the instruction on self-defense solely to the charge of aggravated assault upon the father. See State v. Allison, 16 Kan.App.2d 321, 823 P.2d 213, 215 (1991) (self-defense may under certain circumstances be raised as a defense to a charge of child abuse); see generally State v. Heisler, 58 N.M. 446, 455, 272 P.2d 660, 666 (1954); State v. Gallegos, 104 N.M. 247, 249, 719 P.2d 1268, 1270 (Ct.App.1986). As observed by our Supreme Court in Heisler, \u201cwhere self-defense is involved in a criminal case and there is any evidence, although slight, to establish [such defense], it is not only proper for the court, but its duty as well, to instruct the jury fully and clearly on all phases of the law on [that] issue....\u201d Id., 58 N.M. at 455, 272 P.2d at 666.\nBased on the record, resolution of the issue of whether Defendant\u2019s acts in using the knife were justified in defending himself presents a factual issue to be determined by the jury. State v. Montano, 95 N.M. 233, 235, 620 P.2d 887, 889 (Ct.App. 1980). Thus, we conclude that the trial court erred in limiting Defendant\u2019s requested instruction on self-defense solely to the issue of whether Defendant committed aggravated assault upon the child\u2019s father. Under the evidence here, Defendant was entitled to have the jury determine whether his acts, which were alleged to have endangered the child, were justified as self-defense in protecting himself from injury by the father. Id.\nIn order to establish the offense of child abuse, not resulting in death or great bodily harm, as charged in the indictment, the State was required to prove beyond a reasonable doubt each of the elements of the offense, including the fact that Defendant\u2019s use of the knife was \u201cwithout justifiable cause.\u201d (Emphasis added.) As noted in the committee commentary to SCRA 14-5181 (self-defense, nondeadly force), the words \u201cwithout excuse or justification\u201d are the equivalent to the word \u201cunlawful,\u201d and identify \u201ca defense theory, i.e., even if all of the acts constituting the crime were committed, the act is otherwise excusable or justifiable. Cf. Section 30-2-8 NMSA 1978 [Repl.Pamp.1987]\u201d. Similarly, our Supreme Court, in State v. Pierce, 110 N.M. 76, 80, 792 P.2d 408, 412 (1990), observed that the term \u201cunlawful,\u201d as used in NMSA 1978, Section 30-9-13 (Cum.Supp. 1992), prohibiting criminal sexual contact of a minor, means \u201cwithout legal justification or excuse.\u201d Thus, we conclude that in a prosecution for child abuse where a defendant is charged with having intentionally or negligently endangered the life or health of a child, if the evidence otherwise supports a claim that a defendant\u2019s acts were carried out in self-defense, the defendant is entitled to have the jury consider his claim of self-defense as justification for his acts. See State v. Trammel, 100 N.M. 479, 481, 672 P.2d 652, 654 (1983) (where evidence at trial supports an instruction on a defense raised by accused, failure to instruct constitutes reversible error).\nThe language of Section 30-6-l(C), requiring proof that Defendant\u2019s acts were \u201cwithout justifiable cause,\u201d requires the State to negate Defendant\u2019s claim that he acted in self-defense, where Defendant has presented evidence warranting submission of that defense to the jury. Id.; cf. Santillanes v. State, 115 N.M. 215, 222, 849 P.2d 358, 365 (1993) (trial court erred in failing to instruct jury on standard of criminal negligence).\nWe conclude that the trial court erred in refusing Defendant\u2019s tendered instruction on self-defense and precluding the jury\u2019s consideration of such defense incident to the charge of child abuse.\nCONCLUSION\nDefendant\u2019s conviction for child abuse is reversed and the cause is remanded for a new trial.\nIT IS SO ORDERED.\nCHAVEZ and BLACK, JJ., concur.", "type": "majority", "author": "DONNELLY, Judge." } ], "attorneys": [ "Michael Casey,- Albuquerque, for defendant-appellant.", "Tom Udall, Atty. Gen., William McEuen, Asst. Atty. Gen., Santa Fe, for plaintiffappellee." ], "corrections": "", "head_matter": "856 P.2d 569\nSTATE of New Mexico, Plaintiff-Appellee, v. George UNGARTEN, Defendant-Appellant.\nNo. 14039.\nCourt of Appeals of New Mexico.\nJune 10, 1993.\nMichael Casey,- Albuquerque, for defendant-appellant.\nTom Udall, Atty. Gen., William McEuen, Asst. Atty. Gen., Santa Fe, for plaintiffappellee." }, "file_name": "0607-01", "first_page_order": 647, "last_page_order": 651 }