State v. Leidy

536 P.3d 548

STATE of New Mexico, Plaintiff-Appellee,

v.Dahn LEIDY a/k/a Dahn R. Leidy, Defendant-Appellant.

No. A-1-CA-39691

Court of Appeals of New Mexico.

Filing Date: July 31, 2023

Raúl Torrez, Attorney General, Maris Veidemanis, Assistant Attorney General, Santa Fe, NM, for Appellee

Bennett J. Baur, Chief Public Defender, Mary Barket, Assistant Appellate Defender, Santa Fe, NM, for Appellant

ATTREP, Chief Judge.

{1} Defendant Dahn Leidy was tried on multiple alternative theories of child abuse relating to injuries sustained by her son. The jury acquitted Defendant under the State's principal theory of child abuse—that she inflicted her son's injuries—but convicted her under one of the State's alternatives—that she permitted her son to be endangered. Defendant appeals her two convictions for child abuse by endangerment (resulting in great bodily injury) and her one conviction for child abuse by endangerment (no great bodily injury). See NMSA 1978, § 30-6-1(D)(1), (E) (2009). Among other claims of error, including instructional error, Defendant challenges the sufficiency of the evidence supporting her convictions. Because there is insufficient evidence to sustain Defendant's convictions under the alternative upon which the jury convicted her, we reverse Defendant's convictions.¹

BACKGROUND

{2} Emergency responders, including law enforcement officers, were called to Defendant's apartment following a report by her boyfriend that she had threatened to kill her eighteen-month-old son, E.R., and herself. E.R. was in visible distress when emergency responders arrived. He was transported by ambulance to the hospital where staff observed injuries potentially indicative of child abuse: bruising on different parts of his body, a broken left arm, and a liver laceration.

{3} The State's witnesses at trial included Defendant's boyfriend and his teenage son, the only other people at Defendant's apartment during the time that, according to the State, E.R. was injured. The boyfriend was charged with recklessly permitting child abuse. As part of a plea agreement requiring the boyfriend to testify against Defendant at trial, he pled guilty to failing to report child abuse. The State also called a medical expert who was unable to confirm that any of E.R.’s injuries occurred on the day he was taken to the hospital. Defendant did not testify at trial, but her interview with law enforcement was played for the jury. Defendant denied hurting E.R. or knowing how he was injured.

{4} Defendant was tried on three counts of child abuse: two counts of child abuse resulting in great bodily harm, corresponding to E.R.’s liver injury and broken arm, and one count of child abuse not resulting in great bodily harm, corresponding to E.R.’s bruises. See § 30-6-1(E). Each count was prosecuted on four alternatives—that the abuse was (1) recklessly caused by endangerment, § 30-6-1(D)(1) ; (2) recklessly permitted by endangerment, id. ; (3) recklessly caused by torture, cruel confinement, or cruel punishment, § 30-6-1(D)(2) ; and (4) recklessly permitted by torture, cruel confinement, or cruel punishment, id. The jury instructions did not define "caused" or "permitted." During closing, the State described the difference as follows: for those instructions in which it was said that Defendant "caused" child abuse, she "actually inflict[ed] the injury"; whereas, for those in which it was said that Defendant "permitted" child abuse, she allowed another person to inflict E.R.’s injuries and did not intervene, or she failed to get help for E.R.

{5} At trial, the State primarily sought to prove that Defendant directly caused E.R.’s injuries—under the first and third alternatives.

The jury rejected these alternatives, as well as the fourth one—that Defendant recklessly permitted E.R. to be tortured, cruelly confined, or cruelly punished. The jury convicted Defendant of all three counts based solely on the second alternative—that she "recklessly permitted by endangerment" each of E.R.’s injuries.

DISCUSSION

{6} Defendant on appeal argues there is insufficient evidence of the actus reus—that she permitted E.R. to be placed in a situation that endangered his life or health.² See § 30-6-1(D)(1) (providing that "[a]buse of a child consists of a person knowingly, intentionally or negligently, and without justifiable cause, ... permitting a child to be ... placed in a situation that may endanger the child's life or health"); see also State v. Leal , 1986-NMCA-075, ¶ 14, 104 N.M. 506, 723 P.2d 977 ("When the state chooses to charge under only one portion of the statute (that [the] defendant ‘caused’ or [the] defendant ‘permitted’ the abuse), the prosecution is limited to proving what it has charged."). The jury instructions did not spell out precisely what unlawful act or omission Defendant did to permit E.R. to be endangered. See Leal , 1986-NMCA-075, ¶ 20, 723 P.2d 977 (concluding that the state failed to prove the defendant permitted child abuse because there was "no proof of any act or omission by [the] defendant"). Instead, the jury instructions corresponding to each of Defendant's convictions generically required, in relevant part, that Defendant "permitted blunt force trauma[, a broken arm, or bruises] to [E.R.]," and by doing so, she "permitted [E.R.] to be placed in a situation that endangered [his] life or health." See UJI 14-612(1), (2) NMRA; UJI 14-615(1), (2) NMRA.

{7} In view of this, we are left on appeal without clear guidance from the jury instructions as to what Defendant did, or did not do, to permit E.R. to be endangered.³ We thus examine the theories of guilt advanced by the State. See State v. Vasquez , 2010-NMCA-041, ¶ 18, 148 N.M. 202, 232 P.3d 438 (examining the theories of guilt that could be discerned from the record where the state did not clearly distinguish the various theories). Beyond its principal theory that Defendant was the abuser, which the jury rejected, the State at trial briefly advanced two additional theories: (1) that Defendant permitted E.R. to be endangered by allowing another person to abuse E.R., and (2) that Defendant permitted E.R. to be endangered by failing to obtain treatment for him.⁴

{8} For each theory, "we apply a substantial evidence standard to review the sufficiency of the evidence." State v. Chavez , 2009-NMSC-035, ¶ 11, 146 N.M. 434, 211 P.3d 891. "The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (alteration, internal quotation marks, and citation omitted). Although this review is highly deferential to the jury's verdict, it is "the independent responsibility of the courts to ensure that the jury's decisions are supportable by evidence in the record, rather than mere guess or conjecture." State v. Slade , 2014-NMCA-088, ¶ 14, 331 P.3d 930 (internal quotation marks and citation omitted). Even viewing the evidence under this deferential standard, we conclude a rational juror could not have found Defendant guilty beyond a reasonable doubt under either theory advanced by the State.

I. Permitting Endangerment by Allowing the Boyfriend to Abuse E.R.

{9} We first address the State's theory that Defendant is guilty of permitting E.R. to be endangered because she allowed another person, specifically her boyfriend, to abuse E.R. The State argues on appeal that the jury could have inferred "[Defendant's boyfriend] must have caused [E.R.’s injuries] at a time when [Defendant] was with [the boyfriend] in the apartment." This echoes a suggestion made by the State at trial that the jury could find Defendant guilty of "permitting" child abuse because she was present during the time the State believed E.R. was abused.⁵

{10} Contrary to the State's suggestions below and on appeal, "[t]he fact that an injury occurred is not sufficient to prove" Defendant's guilt. See Leal , 1986-NMCA-075, ¶ 16, 723 P.2d 977. Instead, to sustain Defendant's convictions under the State's first theory, the State was obligated to present evidence demonstrating that Defendant committed "the passive act of allowing the abuse to occur." See id. ¶ 19 ; see also id. ¶ 18 ("[T]he state has the burden of proving beyond a reasonable doubt that [the defendant] permitted the [abuse]."). The State's answer brief fails to direct us to any act or omission by Defendant establishing that she allowed her boyfriend to abuse E.R. Nor are we able to find such evidence in the record. Indeed, the State, at trial, attempted to convince the jury that the boyfriend did not harm E.R. In its opening statement, the State contended that "the evidence will repeatedly show that [the boyfriend] didn't hurt little [E.R.]" The State also elicited testimony that neither the boyfriend nor his teenage son—the only other people in the apartment during the relevant period—caused E.R.’s injuries. This strategy was consistent with the State's primary theory that Defendant, rather than her boyfriend, inflicted E.R.’s injuries; but it was inconsistent with the alternative theory that Defendant allowed her boyfriend to abuse E.R.

{11} To the extent the State makes the specific contention on appeal that the abuse occurred when Defendant and her boyfriend were alone in her bedroom with E.R., the evidence in this regard is lacking. The State did not present any direct evidence establishing what occurred in the bedroom, other than the teenage son's testimony that he heard the boyfriend say that E.R. was choking before he and the boyfriend hurriedly left the apartment. Nor did the State's medical expert offer any clarity in the way of circumstantial evidence. The State's expert did not establish when the injuries occurred, providing only that E.R.’s broken arm, which the expert testified was not necessarily indicative of child abuse, occurred within the ten days preceding E.R. being taken to the hospital. The expert...