the final case this morning is united states versus remeron number seventeen das two one seven two counsel good morning may please the court my name is todd hotchkiss i represent appellant keep kimberly romero whose supervised release was revoked by the district court insufficient evidence was presented from which the district could find by a preponderance of the evidence that ms romero committed the crime of child abuse under new mexico state law by being criminally negligent in permitting mr suarez to commit child abuse on her three year old son the district court abused its discretion specifically because it acted without factual support when it relied on the theory ms romero being criminally negligent because of three previous children youth and family department investigations of her son and allegations that mr suarez had previously committed child statements alone pollie apart from the state agency that mr suarez hurt him why aren't those enough i'm not saying that he actually did but but but the statements that he did enough to put the mother on notice and you're talking about your honor just for clarification the statements in the prior three yes ok well first of all sad to see why  on three occasions and i understand the agency concludes unsubstantiated but the child said that three times even if even if even if the agency had investigated the child states those three times but maybe they haven't been confirmed isn't that enough to say to put the mother on notice i better watch i better watch things closely in terms of putting my see versus trying to as i stated without a record of further intervention by c y f de it is difficult for this court to envision how conditions that did not merit further civil action defended on notice of the potential for criminal prosecution also factually your honor me part of the problem is we had no no we had no witness from those investigations who testified we had one witness from c y f b ms pier who testified that she had quote no idea of what happened and she said it cannot be proven so i would submit to you that because of the law  from the new mexico supreme court and the facts in this case that is not sufficient under the criminal statute for notice let me ask you about shopping as the case is a little different isn't it i mean it's  the reports who are on filthy living conditions right yes and so the question was whether that should put him on notice of seriously threatening or harmfulness harmful even risk to the children which is really a different a different connection between just a filthy home versus are your children at risk here the specific allegation from the the with the child the saying is direct directly related to the specific risk here is that that specific adult might harm the child isn't that enough no it's double first of all it's double hearsay at best and this court in cortez versus macaulay said that unsubstantiated double hearsay by a two year old alone is not probable  cause it is not enough there were no what the united states presented noted why is that double hearsay the child did not testify of the proceeding the child is just putting the mother on notice it's not offered for the truth she's putting putting the mother on notice that that he got here she hears she hears that the child say the boyfriend hit him why isn't that enough for the mother so i better not put my kid with the boyfriend well because first of all again the un's we don't know because no evidence was presented by the government specifically why each of these allegations were found to be unsubstantiated no witness testified who could provide any insight into that and that's why it is speculation  to believe the veracity of those statements because we don't know why and similarly to the extent it implicates the credibility of ms romero it's without any evidence to believe that she was not telling the truth in those is unfair to her because there was no witness to be able to testify and that's why it's speculation and that's why it's without factual support in the record we believe that any inference from that would is an unreasonable  the court ruling on two asked x it seemed to me one was that she shouldn't have let that discipline happen in the first place and the second was that when she was sitting downstairs and  heard the bell come out of the pants and the first hit that should have intervened stopped it will you respond to the second because they don't think that has the same quite the same notice no i very much agree on august him found there was insufficient evidence and specifically said that interpreting those same circumstances that my client in fact acted to stop then on august twenty fifth then chief judge or me go reverse yourself one hundred eighty degrees and again for different reasons we believe that there was no factual support for her findings in that respect for these reasons and i believe i pointed these out in my brief in the transcript shows this that when asked specifically ms pearson deputy sanchez did not establish the factual circumstances from which that inference could be made for instance they admitted that there were no no timeframe established we don't know how long it was she was upstairs observing we don't know she said her statement was her being miserable merope that when she got up there she saw two more spanks and that she was in shock at what was happening she then intervened and an argument or curt between her and mr sore eyes and she takes the child away establishing you know the sequence of events and as a matter of fact miss pierce testified herself that it's possible that when ms romero got up stairs that she acted as as quickly as she could and got her son out of there so we do not believe that there is any factual support for an inference on this second aspect of judge army has finding  that that rises to the level of being criminally negligen stated in her statements that she had asked him to help her discipline the boy that she said she did not at all want this to happen miss pier repeated that testimony in believe that that was the case and in new mexico under new mexico state law spanking is permissible so when she gets up stairs and sees what she saw being shot under those circumstances is entirely reasonable well spanking is permissible if it doesn't leave a mark  and he's beating the child with a belt which is the nature of the shot response has nothing to do with spanking legal because that's not a legal spanking is that even in any state well  she she she wasn't again this isn't in the record but it appears to be that that statement being shocked is consistent with the fact that she saw something she didn't counsel my name is maria song and i'm an assistant united states attorney in las cruces new mexico in march two thousand and seventeen kimberly romero asked her boyfriend cain swatches to discipline her barely three year old child knowing that on at least three prior occasions he had been accused of physically abusing the boy so let's let's get right to the issue i think we got the background facts how could the district substantiated well your honor i think you hit on this when my when my co counsel is up here but basically she knows that the child is saying this is the person who's doing it and we know that on those three p occasions there was actual physical markings on the child i believe that in september of two thousand and sixteen that's when there was bite marks and bruising on his cheek in november of two thousand and sixteen he had scratches on his face and in january of two thousand and seventeen that's when he had bruising an infection on his fingers so it's that knowledge we also know based on miss romero's own statements that her boyfriend had told her that he didn't think that he he didn't think that pretty i believe what she stated is that swat is had told her that she was too easy on the boy and that she babysat him and so i think that those combinations of circumstances put her on fair notice that not only in this case not only is she leaving her child with him but she is actually asking him to discipline the child there are cases in new mexico appeal have a firm conviction where mothers know that someone has abused their child and they leave them in their care and they're not even there but those are all cases where there was pretty clear evidence  mother she was well aware that the partner was abusive i mean here i think this record i can't tell on these three instances i know what the testimony w trial about what a different person wrote in a report about these instances these three incidents but i have no idea what the child told his mother about these individual instances well happens was there about that well we know that c y f t was called out i mean you do have to make an end in friend it's there is nothing in the record that clearly says we told mr romero or mr o'mara was there however i believe that it is a reasonable inference that the district court made to assume that in those circumstances miss romero was present she's the child's mother and the child's caretaker so to make to reach the opposite conclusion that she didn't know about any of this just wouldn't make any sense was there evidence in the record that when the c y f the interview the child that she was present for the interview with the c y f the no is there anything in the record that we may have covered this but i'll say it anyway is there anything in the record showing that the child told the mother that the boyfriend had heard him independent the c y f the interview so for at least one of the prior instances there is and that's the instance that has to do with the bruising on his fingers from january of twenty seventeen and we know that she she was aware of it because she actually told the c y f the worker that he had smashed his there was no testimony by anyone saying specifically that she was told that however i think that in these circumstances they're out there they're responding to  the daycare where the child was and presumably the same thing happened then as happened this time where the mother is there but he can't presume you have inference and presumption on  inference in a criminal conviction and need to have evidence of her knowledge while the standard is so this is a supervised release violation so we're not dealing with evidence beyond a reasonable doubt the standard is preponderance which is must much lower it's more likely this happened then it didn't happen and i think that in this are our position is that in this circumstance evidence was presented that would have put her on notice that there were these three prior allegation that the first two were not investigated it wasn't until the third that there actually was an investigation right that's correct so at the time i think it was the smash fingers that were last yes ok at that time the daycare center says you know now that we're looking at these i remember these two prior incidents and we have no idea what happened in terms whether somebody questioned the mother whether the mother was told what the little boy was saying and even on the smashed thinkers incident we don't know if they just said what happened to his fingers and the mom smashed them in the car door and that's the extent of the interaction the conversation dices a problem for sufficient evidence well i think that this is an example of circumstantial evidence so we have two types of evidence that we deal with there's direct circumstantial and because of the evidence that's in the record i would i do believe that this is circumstantial evidence of her knowledge however that can be equally as powerful as direct evidence and i don't think that it should be required that the mother actually acknowledges this if we're going based off of what defendants themself acknowledge then we would rarely be able to prove crimes at any level and so here in the record what we do have is we have these three prior instances we know that the mother has dealt with c y f d in the past with regard to the last instance and that this little child has repeatedly said daddy did it daddy did it but we don't know whether the mother you know the child said repeatedly daddy did it well we know that's a little that we know that the s is living with the mother and her boyfriend at the time that these instances occur we know that there are physical markings on the child and we know that the daycare where the child is attending  once it gets to the third instance notified c y f the of it so i think to say that we don't know that the mother knew about it is just too far stretch how could she have not known about it well i mean it could be in fact that what the kid was saying about the smashed is true and it was an accident right the mother could have been there dad could have slammed the door and the kid could have had his i mean these things happen it we have to speculate to say that she knew that mr soirees was abusing her child and so i think i think that it's important to get back to the standard of review so those facts are reviewed under the clearly erroneous standard because the district court did specifically find that mr romero was on notice of these three prior instances right he said we can infer it yes that is our position and i think that based on this record those findings are not clearly erroneous they are supported by by evidence that is in the record you do you have to make an  there however i think that given the information we have in the record that is a fair inference to make that's the inference that the district court made and given those facts mr romero was on notice that these prior instances had occurred and in light of that not only did she leave her child with mr suarez she actually asked him to help discipline the child and so i think that under these circumstances it's clear that her conduct did violate the new mexico child abuse statute and there was no error in the district court's part revoking her supervised release can we turn intervals between this thank you we have no idea how long it took her to get up stairs we have not i mean it's very difficult to make inferences about what she should have done without having that kind of information and your honor that may be true but that's what we as fact finders should you all the time it's going to be rare especially in a circumstance like this where abuse happens in the home that we are going to know second by second exactly what happens absent the defendant giving a very detailed confession usually usually the way that these cases are piece back together is the there's a doctor who performs an examination and then you know they can testify about what they are able to observe with regard to the injuries but rarely do we have a timeline that says ok the first hit happened at this time and then it took approximately three seconds later what makes what makes this issue difficult is that it's based on in action right to failure to intervene but didn't mr mero actually intervene to according to her statement she did but our position is that at that point it's too late she asks him to discipline the child according to her statement he takes the child up sir she hears him take off his belt and then here's five whacks before she decides to actually go upstairs and then while she's standing there according to her own admission she sees him hit the child two more time she sees that the child doesn't have any clothing on basically he's pulled his pants down and even though mr romero never made any statements about what's going on with the child i think it's a reasonable inference to assume that while this is happening the child is screaming let me ask you this let's suppose the instead of preponderance of the evidence we're we're now at trial her this is where she's been charged with this is this enough  for reasonable jury to convict beyond a reasonable doubt that she failed to intervene while your honor that's a different question well i want to i want to pose it so we can do a little compare of short  there had isn't there reasonable doubt about whether she intervened or failed to intervene if there had been a trial and the standard had been beyond a reasonable doubt that when it had been me personally i would have  we don't have that standard instead we have a preponderance of the evidence and so i'm trying to find i'm trying to understand where you might place this in the spectrum of proof and how do we get past preponderance if we don't have a timeline there's evidence to the missed piers that it's entirely possible that she soon as she got up there and saw the two strikes she acted to intervening so it's more likely than not because even though we don't have a specific timeline we know that there are stairs involved so we know that ok she had to go up the stairs and even if miss pierce testified it's possible that she could have intervened she never said she did and why mr romero said is that she didn't do anything and usually because she was in shock and she shouldn't have been in shock at that point because she's watching her child to get and being beaten by someone a minimum even taking away the notice the prior notice at the point that she hears her boyfriend take off his belt and starts beating her child it's a reasonable inference that the child was crying while this is happening i mean the the marks on his body are pretty significant she gets up there and instead of doing anything in that moment to stop it she stands there and watches him hit her son two more times and our position is that that it action in and of itself would constitute a violation as this is how much is it relevant to our assessment of the record that the district judge at least at one it is a difficult case and it's a difficult case in a number of ways but when you when you look at it i mean all each of the government witnesses each had a different reason why they believe that ms remeron violated the statute in each of them turned out to be wrong whether it was failure to take for medical evaluation or the probation officer thought she hadn't reported it to him timely them she did not invoke a right to counsel she did not refuse to answer questions ms pierce interviewed her deputy sanchez interviewed her you know  they had opportunities to get the facts that are missing that if they were established could have made inferences reasonable and not speculative because we have a of the record these inferences are inherently speculative and for that reason we would request that you reverse the judgment of the district court and remain for the proceedings counsel thank you thank you both for your arguments this morning the case of these minute and counsel are excused this court will stand in recess