{ "id": 3783590, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Kimberly Rose CHAVEZ, Defendant-Appellant", "name_abbreviation": "State v. Chavez", "decision_date": "2007-10-11", "docket_number": "No. 25,490", "first_page": "126", "last_page": "133", "citations": [ { "type": "official", "cite": "143 N.M. 126" }, { "type": "parallel", "cite": "173 P.3d 48" }, { "type": "parallel", "cite": "2007-NMCA-162" } ], "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": "2006-NMSC-050", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3671204 ], "weight": 3, "pin_cites": [ { "page": "\u00b633" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0644-01" ] }, { "cite": "115 N.M. 344", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725497 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "346-47" }, { "page": "468-69" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0344-01" ] }, { "cite": "97 N.M. 232", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555133 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "234" }, { "page": "1079" } ], "opinion_index": 0, "case_paths": [ "/nm/97/0232-01" ] }, { "cite": "2001-NMSC-016", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 352669 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 26" }, { "page": "\u00b6 26" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0198-01" ] }, { "cite": "2002-NMSC-027", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 260689 ], "weight": 3, "pin_cites": [ { "page": "\u00b621" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0657-01" ] }, { "cite": "529 U.S. 362", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9508607 ], "weight": 3, "year": 2000, "opinion_index": 0, "case_paths": [ "/us/529/0362-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 9, "year": 1984, "pin_cites": [ { "page": "690-92", "parenthetical": "reaffirmed by Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)" }, { "parenthetical": "reaffirmed by Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)" }, { "parenthetical": "reaffirmed by Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)" }, { "page": "694" }, { "page": "694" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "100 N.M. 671", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588673 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "673-74", "parenthetical": "holding that where defendant's conduct creates a high degree of risk, subjective knowledge is inferred by circumstantial evidence tending to prove defendant should have realized the risk under the circumstances" }, { "page": "122-23", "parenthetical": "holding that where defendant's conduct creates a high degree of risk, subjective knowledge is inferred by circumstantial evidence tending to prove defendant should have realized the risk under the circumstances" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0671-01" ] }, { "cite": "106 P.3d 579", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "137 N.M. 17", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "2005-NMCERT-001", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "2005-NMCA-012", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1224630 ], "weight": 4, "pin_cites": [ { "page": "\u00b616" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0749-01" ] }, { "cite": "2000-NMSC-017", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1217184 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 21" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0230-01" ] }, { "cite": "1998-NMSC-042", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827450 ], "weight": 4, "pin_cites": [ { "page": "\u00b6\u00b6 15, 20" }, { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0361-01" ] }, { "cite": "2004-NMCA-100", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1224599 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 38" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0337-01" ] }, { "cite": "115 N.M. 215", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725427 ], "weight": 8, "year": 1993, "pin_cites": [ { "page": "218" }, { "page": "361" }, { "page": "222" }, { "page": "365" }, { "page": "222" }, { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0215-01" ] }, { "cite": "46 N.M. 302", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563084 ], "weight": 2, "year": 1942, "pin_cites": [ { "page": "309" }, { "page": "462" } ], "opinion_index": 0, "case_paths": [ "/nm/46/0302-01" ] }, { "cite": "1997-NMSC-032", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 142264 ], "weight": 3, "pin_cites": [ { "page": "\u00b623" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0564-01" ] }, { "cite": "2000-NMSC-009", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106493 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 13" }, { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0711-01" ] }, { "cite": "2001-NMSC-033", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 183105 ], "weight": 3, "pin_cites": [ { "page": "\u00b612" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0258-01" ] }, { "cite": "945 P.2d 996", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "123 N.M. 778", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 142224 ], "opinion_index": 0, "case_paths": [ "/nm/123/0778-01" ] }, { "cite": "1997-NMSC-044", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b649" } ], "opinion_index": 0 }, { "cite": "101 N.M. 5", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586359 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "7" }, { "page": "620" } ], "opinion_index": 0, "case_paths": [ "/nm/101/0005-01" ] }, { "cite": "107 N.M. 126", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597058 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "131" }, { "page": "1319" }, { "page": "131" }, { "page": "1319" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0126-01" ] }, { "cite": "2002-NMSC-024", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 260726 ], "weight": 3, "pin_cites": [ { "page": "\u00b643" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0576-01" ] }, { "cite": "118 N.M. 762", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563621 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "765-66" }, { "page": "759-60" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0762-01" ] }, { "cite": "2004-NMSC-008", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1428000 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 41" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0329-01" ] }, { "cite": "111 N.M. 309", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715084 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "312" }, { "page": "81" }, { "page": "314" }, { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0309-01" ] }, { "cite": "386 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168882 ], "weight": 5, "year": 1967, "pin_cites": [ { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/us/386/0018-01" ] }, { "cite": "1999-NMSC-027", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257755 ], "weight": 3, "pin_cites": [ { "page": "\u00b637" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0426-01" ] } ], "analysis": { "cardinality": 1067, "char_count": 22339, "ocr_confidence": 0.7, "pagerank": { "raw": 6.868525163662566e-08, "percentile": 0.4182054629439786 }, "sha256": "e32ed25bfeda4e0b5ca75e56961d4333a15774ca00b8490c2ddef480cf01052c", "simhash": "1:afdccab2ae823256", "word_count": 3624 }, "last_updated": "2023-07-14T16:34:50.796486+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: A. JOSEPH ALARID and MICHAEL E. VIGIL, Judges." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Kimberly Rose CHAVEZ, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nROBINSON, Judge.\n{1} A jury convicted Kimberly Rose Chavez (Defendant) of one count of abandonment or abuse of a child resulting in death, and possession of drug paraphernalia. Defendant raises several issues on appeal: (1) the district court erred in excluding a proposed exhibit of a report from the U.S. Consumer Products Safety Commission; (2) the evidence was insufficient to support a conviction for negligent child abuse resulting in death; (3) the jury instruction given for negligent child abuse resulting in death was incorrect and incomplete; and (4) she received ineffective assistance of counsel. We affirm.\nI. BACKGROUND\n{2} On December 9, 2003, Defendant said that her son (Child) had been sick with bronchitis, and she put him to bed at 10:00 p.m. She placed the swaddled infant on a low youth bed with no side rails, on his back with a bottle, and covered him with another blanket. Because the house had no central heat, she placed an electric space heater on the floor \u201ccatty-corner\u201d to the bed. The heater was approximately nine inches from the youth bed at its closest point. Defendant said she fell asleep on the couch in the adjoining room. Defendant left her Child unattended all night, swaddled in blankets, on a bed with no rails. Child rolled off the bed and was burned to death by the space heater left beside the bed.\n{3} The State presented evidence that on December 10, 2003, at 10:23 a.m., officers responded to a dispatch call at Defendant\u2019s home. Beside the smell of burnt flesh, the officers saw drug paraphernalia in plain view consisting of a brass pipe, a lighter, a nail clipper with burnt ends, a little plastic jar with a foil-wrapped pipe inside, and an ashtray. Defendant then consented to a search where the officers found a glass pipe with a burnt end on the kitchen shelf, a small jeweler\u2019s bag with white residue in the master bedroom, and a pipe bong. A forensic scientist testified that the two metal pipes tested positive for marijuana, and the residue in the glass pipe and in the small bag tested positive for methamphetamine. Defendant\u2019s blood was drawn that day at 3:40 p.m. and tested positive for methamphetamine. A certified technician from the Department of Health was unable to definitely say when Defendant ingested the methamphetamine, but agreed it was consistent with ingestion during the previous twenty-four hours.\n{4} Defendant was convicted of one count of abandonment or abuse of a child resulting in death-a first-degree felony-contrary to NMSA 1978, \u00a7 30-6-l(D)(l) (2005), and possession. Defendant appeals.\nII. DISCUSSION\nA. The Trial Court Did Not Err in Excluding the Defense\u2019s Proposed Exhibit of a Report From the U.S. Consumer Products Safety Commission\n{5} \u201cAdmission or exclusion of evidence is a matter within the discretion of the trial court and the court\u2019s determination will not be disturbed on appeal in the absence of a clear abuse of that discretion.\u201d State v. Stampley, 1999-NMSC-027, \u00b637, 127 N.M. 426, 982 P.2d 477 (internal quotation marks and citation omitted).\n{6} Defense counsel sought permission to introduce at trial a six-page document dated February 2001, generated by the U.S. Consumer Products Safety Commission, regarding the consumer use of space heaters and incidents of death from their use. The district court ruled the report irrelevant because Defendant did not read the report, nor was she familiar with the report. The court also found that the other deadly incidents discussed in the report were not relevant to this ease. We agree.\n{7} Even assuming, arguendo, that the district court erred, the purported error in this case was harmless. New Mexico follows the standard for harmless error set out by the United States Supreme Court in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See State v. Jett, 111 N.M. 309, 312, 805 P.2d 78, 81 (1991). In Chapman, the Supreme Court defined the standard as \u201cwhether there is a reasonable possibility that the [error] might have contributed to the conviction.\u201d 386 U.S. at 23, 87 S.Ct. 824 (improper admission of evidence) (internal quotation marks and citation omitted). In State v. Balderama, our Supreme Court held that \u201c[e]rror in the exclusion of evidence in a criminal trial is prejudicial and not harmless if there is a reasonable possibility that the excluded evidence might have affected the jury\u2019s verdict.\u201d 2004-NMSC-008, \u00b6 41, 135 N.M. 329, 88 P.3d 845.\n{8} We do not see how the report could have contributed to Defendant\u2019s argument in any way that would have altered the outcome of the trial. Assuming the report had been admitted into evidence, Defendant had never seen or relied upon the report prior to Child\u2019s death, and it did not directly relate to any fact at issue in this ease. Therefore, we affirm the district court.\nB. The Conviction for Child Abuse Resulting in Death Was Supported by Sufficient Evidence\n{9} Defendant contends that there was insufficient evidence to convict her of criminal negligent child abuse or abandonment resulting in death. In evaluating a claim that the evidence is insufficient to support a conviction, the analysis is whether substantial evidence exists of either a direct or circumstantial nature to support a verdict of guilty beyond a reasonable doubt with respect to each element of the crime charged. State v. Apodaca, 118 N.M. 762, 765-66, 887 P.2d 756, 759-60 (1994). \u201cA reviewing court must view the evidence in the light most favorable to the state, resolving all conflicts therein and indulging all permissible inferences therefrom in favor of the verdict.\u201d State v. Reyes, 2002-NMSC-024, \u00b643, 132 N.M. 576, 52 P.3d 948 (quoting State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988)). We do not weigh the evidence or \u201csubstitute [our] judgment for that of the fact finder so long as there is sufficient evidence to support the verdict.\u201d Sutphin, 107 N.M. at 131, 753 P.2d at 1319.\n{10} The State presented evidence that on December 9, 2003, Defendant said that Child had been sick with bronchitis, and she put him to bed at 10:00 p.m. She placed Child on a low youth bed, on his back with a bottle, and covered him with blankets. The bed was positioned against the wall, and Defendant placed Child with his head pointing toward the wall so that, if he rolled, the railings at the head and foot of the bed might block him. Because the house had no central heat, she placed an electric space heater on the floor catty-corner to the bed. The heater was approximately nine inches from the youth bed at its closest point. Defendant said she fell asleep on the couch. Defendant left Child unattended all night, swaddled in blankets, on a bed with no rails. He rolled off the bed and was burned to death by the space heater left beside the bed. This evidence satisfies the elements of negligent child abuse resulting in death.\n{11} In light of the evidence presented, it is not unreasonable for the jury to have determined that Defendant was guilty of one count of abandonment or abuse of a child resulting in death. Child was placed in a dangerous situation, which was created by Defendant because she placed Child in a sleeping arrangement that was highly and obviously dangerous to an infant and then completely failed to monitor him. Defendant testified that she knew Child could fall off the bed if left alone, and agreed it was important to check on him, especially since he was sick.\n{12} Defendant argues that Child\u2019s death was not foreseeable. The jury\u2019s finding to the contrary is amply supported. Child was not even six months old and was swaddled in blankets. He could roll, but had no other substantial control over his bodily movements. Defendant was aware of this and placed Child in a way that, if he rolled, he would probably roll toward one end of the bed and not off the bed. However, the possibility that an unattended infant could manage to roll off a bed with no rails is far from unforeseeable. The foreseeability that Child would roll off the bed and be injured by the heater because of his near complete inability to move away from it is evident. The danger was not remote, improbable, or unexpected. The evidence sufficiently supported the conviction for negligent child abuse resulting in death.\n{13} \u201cThe jury, as the trier of fact, was entitled to weigh this evidence.\u201d State v. Hunter, 101 N.M. 5, 7, 677 P.2d 618, 620 (1984). Therefore, we hold that a rational jury could have relied on this evidence to satisfy each element of the negligent child abuse resulting in death instruction and, as stated in Hunter, \u201c[t]his Court will not substitute its determination for that of the jury.\u201d Id.\nC. The Jury Instructions Given Were the Approved Uniform Jury Instructions and Did Not Constitute Fundamental Error\n{14} Defendant contends that the jury instructions improperly permitted the jury to convict her of the negligent child abuse charge based upon a civil negligence standard rather than a criminal negligence standard. We disagree.\n{15} \u201cThe propriety of jury instructions given or denied is a mixed question of law and fact. Mixed questions of law and fact are reviewed de novo.\u201d State v. Salazar, 1997-NMSC-044, \u00b649, 123 N.M. 778, 945 P.2d 996. Here, we must also decide whether a reasonable juror would have been confused or misled by the instruction. State v. Benally, 2001-NMSC-033, \u00b612, 131 N.M. 258, 34 P.3d 1134. \u201cFundamental error only applies in exceptional circumstances when guilt is so doubtful that it would shock the judicial conscience to allow the conviction.\u201d State v. Cunningham, 2000-NMSC-009, \u00b6 13, 128 N.M. 711, 998 P.2d 176 (internal quotation marks and citation omitted).\n{16} Defendant\u2019s challenge is to the jury instructions pertaining to negligent child abuse resulting in death. It is undisputed that there was no objection to the instructions as given, and that any claimed error in the jury instructions was not preserved. Therefore, we review for fundamental error. See Rule 12-216(B)(2) NMRA; State v. Sosa, 1997-NMSC-032, \u00b623, 123 N.M. 564, 943 P.2d 1017. The fundamental error doctrine is utilized under exceptional circumstances only and only to prevent a miscarriage of justice. Jett, 111 N.M. at 314, 805 P.2d at 83. A fundamental error \u201cmust go to the foundation of the case or take from the defendant a right which was essential to his defense and which no court could or ought to permit him to waive.\u201d State v. Garcia, 46 N.M. 302, 309, 128 P.2d 459, 462 (1942).\n{17} In accordance with Uniform Jury Instructions Nos. 14-602 and 14-603, the jury was instructed that, in order to find Defendant guilty of child abuse resulting in death, the State was required to prove beyond a reasonable doubt that (1) Defendant caused Child to be placed in a situation which endangered the life or health of Child; (2) Defendant acted with reckless disregard, and to find that Defendant acted with reckless disregard, the juiy must find that Defendant knew, or should have known, her conduct created a substantial and foreseeable risk and Defendant disregarded that risk and was wholly indifferent to the consequences of her conduct and the welfare and safety of Child; (3) Defendant was the parent of Child; (4) Defendant\u2019s actions resulted in the death of Child; (5) Child was under the age of eighteen; and (6) this happened in New Mexico on or between December 9 and 10, 2003.\n{18} The foregoing instructions incorporate a criminal negligence standard of conduct for child abuse cases that is consistent with the New Mexico Supreme Court opinion in Santillanes v. State, 115 N.M. 215, 849 P.2d 358 (1993). The statute under which Defendant was charged specifically provides that \u201c \u2018negligently1 refers to criminal negligence and means that a person knew or should have known of the danger involved and acted with a reckless disregard for the safety or health of the child.\u201d NMSA 1978 \u00a7 30-6-l(A)(3). This statute is explicitly based upon a criminal negligence standard. The statute was amended in 1997 to incorporate the criminal negligence standard discussed in Santillanes. See 1997 N.M. Laws ch. 163, \u00a7 1.\n{19} It is well settled that the legislature has the authority to make negligent conduct a crime. Santillanes, 115 N.M. at 218, 849 P.2d at 361. In Santillanes, the Supreme Court held that only criminal negligence would suffice to ground felony liability in New Mexico. Thus, the Court interpreted the \u201cnegligence\u201d term in the child abuse statute to require more than civil negligence. Id. at 222, 849 P.2d at 365. In New Mexico, criminal negligence encompasses objective or subjective knowledge of the risk, ie., knew or should have known, and requires \u201creckless disregard\u201d of a \u201csubstantial and foreseeable risk.\u201d See UJI 14-602, -603. \u201c \u2018Reckless disregard\u2019 requires that [the djefendant\u2019s conduct created a substantial and foreseeable risk and that [the defendant disregarded such risk and was wholly indifferent to the consequences of his conduct and the welfare and safety of others.\u201d State v. Mireles, 2004-NMCA-100, \u00b6 38, 136 N.M. 337, 98 P.3d 727 (citation omitted).\n{20} In cases such as this, the jury must be informed that the State bears the burden of proving that the defendant was \u201ccriminal[ly] negligent],\u201d signifying that \u201cdefendant knew or should have known of the danger involved and acted with a reckless disregard for the safety or health of the child.\u201d Santillanes, 115 N.M. at 222, 849 P.2d at 365. The jury must also be advised on the definition of \u201c \u2018reckless disregard.\u2019 \u201d State v. Magby, 1998-NMSC-042, \u00b6\u00b6 15, 20, 126 N.M. 361, 969 P.2d 965 (finding reversible error where negligent child abuse instruction did not define reckless disregard, and jury might have understood negligence standard to criminalize careless or extremely careless conduct); accord State v. Mascare\u00f1as, 2000-NMSC-017, \u00b6 21, 129 N.M. 230, 4 P.3d 1221 (finding fundamental error where the jury could have convicted the defendant by erroneously using a civil negligence standard); see State v. Schoonmaker, 2005-NMCA-012, 136 N.M. 749, 105 P.3d 302, cert. granted, 2005-NMCERT-001, 137 N.M. 17, 106 P.3d 579.\n{21} In Magby, the jury was instructed on negligent child abuse in conformity with the standard enunciated in Santillanes. \u201cTo find that [the defendant] negligently caused child abuse to occur, you must find that [the defendant] knew or should have known of the danger involved and acted with a reckless disregard for the safety or health of [the child].\u201d Magby, 1998-NMSC-042, \u00b6 5 (emphasis omitted). The Supreme Court reversed the defendant\u2019s conviction, holding that the terms \u201cnegligently\u201d and \u201creckless disregard\u201d in the instruction was \u201cfatally ambiguous [because] there [was] \u2018no way to determine\u2019 whether the jury had a correct or incorrect understanding of the instruction.\u201d Id. \u00b6\u00b6 13,14. The Supreme Court found that the instructions did not adequately instruct the jury on the mens rea of negligent child abuse. The Court specifically took the \u201copportunity to clarify the proper jury instructions to be given in proceedings where a defendant is charged with negligent child abuse.\u201d Id. \u00b6 7. The Court found that the defendant\u2019s requested instruction defining the term \u201creckless disregard\u201d should have been given. Without that instruction, the jury could have convicted the defendant on a civil, as opposed to a criminal, standard of negligence. Id. \u00b6\u00b6 15-16. Thus, \u201c[a]n express definition of \u2018reckless disregard\u2019 would be particularly appropriate for these instructions because the distinction between criminal negligence and civil negligence turns on an understanding of the concept of recklessness ____We therefore direct the UJI Criminal Committee to formulate a definition of \u2018reckless disregard\u2019 similar to the one tendered by defense counsel in this case for use in negligent child abuse cases in the future.\u201d Id. \u00b6 17 (internal citations omitted). The UJI Committee followed this mandate and modified UJI 14-602 and UJI 14-603 to incorporate the term \u201creckless disregard\u201d as defined in Magby. UJI 14-602, -603 Use Notes.\n{22} Because the definitions for criminal negligence and reckless disregard were integrated into the instruction, the jury could not have convicted Defendant under a lesser civil standard. \u201cTo the contrary, adding the negligence language would only serve to reintroduce an ambiguity that the Magby court expressly wanted to avoid.\u201d Schoomnaker, 2005-NMCA-012, \u00b616. We hold that the proffered jury instructions were acceptable.\n{23} Defendant has not shown how the proffered instructions would put her conviction into doubt, so as to \u201cshock the judicial conscience to allow the conviction.\u201d Cunningham, 2000-NMSC-009, \u00b6 13 (internal quotation marks and citation omitted). As demonstrated in our discussion of the sufficiency of the evidence, there was sufficient evidence for the jury to find that the risk of harm to Child was so substantial and foreseeable that she should have known of the risk she created, but that she was wholly indifferent to it. State v. McCrary, 100 N.M. 671, 673-74, 675 P.2d 120, 122-23 (1984) (holding that where defendant\u2019s conduct creates a high degree of risk, subjective knowledge is inferred by circumstantial evidence tending to prove defendant should have realized the risk under the circumstances). The evidence the jury received showed the danger posed to Defendant\u2019s son by her actions considering the circumstances of Child\u2019s age, his development which was limited to rolling, the proximity of the heater, the number of hours he was left unattended, and his listlessness due to bronchitis. We conclude that there was no error, much less fundamental error, with regard to the proffered instructions.\nD. Defendant Has Not Established a Prima Facie Case of Ineffective Assistance of Counsel for Defense Counsel\u2019s Failure to Sever the Drug Paraphernalia Charge and to Move to Exclude Other Evidence Regarding Defendant\u2019s Drug Use\n{24} To establish an ineffective assistance of counsel claim, a defendant must first show that counsel erred in his performance, and then show that the error resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 690-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (reaffirmed by Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). Counsel is generally presumed to have provided adequate assistance. Id. at 690, 104 S.Ct. 2052. An error only occurs if \u201c \u2018representation [falls] below an objective standard of reasonableness.\u2019 \u201d State v. Roybal, 2002-NMSC-027, \u00b621, 132 N.M. 657, 54 P.3d 61 (quoting Lytle v. Jordan, 2001-NMSC-016, \u00b6 26, 130 N.M. 198, 22 P.3d 666). A defendant must establish \u201ca reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different.\u201d Strickland, 466 U.S. at 694, 104 S.Ct. 2052. In particular, bad tactics and improvident strategy do not necessarily translate into ineffective assistance. The Sixth Amendment demands only reasonable competence, but a defendant is not guaranteed an errorless defense. State v. Orona, 97 N.M. 232, 234, 638 P.2d 1077, 1079 (1982). The ineffective assistance of counsel inquiry is highly deferential, cannot rely on hindsight, and must take into account all the circumstances surrounding the defense. Lytle, 2001-NMSC-016, \u00b6 26.\n{25} More often than not, the record on appeal does not supply sufficient information to properly determine whether an action by counsel was done in error, or caused prejudice to the defendant. When this occurs, further evidence is often called for. Duncan v. Kerby, 115 N.M. 344, 346-47, 851 P.2d 466, 468-69 (1993). \u201cRather than remand the case to the trial court for further hearings, this Court has a general preference that such claims be brought and resolved through habeas corpus proceedings.\u201d State v. Bernal, 2006-NMSC-050, \u00b633, 140 N.M. 644, 146 P.3d 289.\n{26} Defendant claims ineffective assistance because of defense counsel\u2019s failure to move for severance of the paraphernalia charge from the child abuse charge. Defendant also declares that defense counsel\u2019s failure to exclude highly prejudicial evidence about drug use constituted ineffective assistance of counsel because this evidence led the jury to infer that Defendant was a \u201cbad person\u201d who deserved to be punished for the accidental death of her child. Defendant actually admitted at trial that some of the drug paraphernalia found in the house was hers.\n{27} Here, the list of counsel\u2019s failures all go to matters of trial tactics and strategy. Even if we were to assume that the list of failures accumulated to the level that counsel\u2019s performance fell below that of a reasonably competent attorney, Defendant has not established prejudice. She argues that had these failures not occurred, there would probably have been a more favorable result. Defendant must show a reasonable probability that the result of the conviction would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. \u201cA reasonable probability is a probability sufficient to undermine confidence in the outcome.\u201d Id. Defendant has not shown that here.\n{28} We conclude Defendant has not presented a prima facie case of ineffective assistance of counsel on these grounds. We, therefore, reject Defendant\u2019s ineffective assistance of counsel claim. However, this decision does not prevent Defendant from pursuing habeas corpus proceedings on this issue should she be able to acquire evidence to support her claims.\nIII. CONCLUSION\n{29} For the foregoing reasons, we affirm Defendant\u2019s conviction for negligent child abuse resulting in the death of Child, and possession of drug paraphernalia.\n{30} IT IS SO ORDERED.\nWE CONCUR: A. JOSEPH ALARID and MICHAEL E. VIGIL, Judges.", "type": "majority", "author": "ROBINSON, Judge." } ], "attorneys": [ "Gary K. King, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellee.", "John Bigelow, Chief Public Defender, Sheila Lewis, Assistant Appellate Defender, Santa Fe, NM, for Appellant.", "Freeman Boyd Daniels Hollander Goldberg & Ives P.A., Martha A. Mulvany, Albuquerque, NM, for Amicus Curiae New Mexico Criminal Defense Lawyers Association." ], "corrections": "", "head_matter": "2007-NMCA-162\n173 P.3d 48\nSTATE of New Mexico, Plaintiff-Appellee, v. Kimberly Rose CHAVEZ, Defendant-Appellant.\nNo. 25,490.\nCourt of Appeals of New Mexico.\nOct. 11, 2007.\nCertiorari Denied, No. 30,733, Nov. 20, 2007.\nGary K. King, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellee.\nJohn Bigelow, Chief Public Defender, Sheila Lewis, Assistant Appellate Defender, Santa Fe, NM, for Appellant.\nFreeman Boyd Daniels Hollander Goldberg & Ives P.A., Martha A. Mulvany, Albuquerque, NM, for Amicus Curiae New Mexico Criminal Defense Lawyers Association." }, "file_name": "0126-01", "first_page_order": 162, "last_page_order": 169 }