This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6

STATE OF NEW MEXICO , 7 Plaintiff-Appellee, 8

v. NO. 27,613 9 MOISES TERRAZAS , 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 12 James W. Counts, District Judge 13
Gary K. King, Attorney General 14 Nicole Beder, Assistant Attorney General 15 Santa Fe, NM 16 for Appellee 17 Hugh W. Dangler, Chief Public Defender 18 Kathleen T. Baldridge, Assistant Appellate Defender 19 Santa Fe, NM 20 for Appellant 21

MEMORANDUM OPINION 222 ROBLES, Judge. 1 Moises Terrazas (Defendant) appeals hi s conviction of four counts of child 2 endangerment, contrary to NMSA 1978, Section 30-6-1(D)(1) (2005) (amended 3 2009). On appeal, he asserts that there wa s insufficient evidence to sustain a 4 conviction for child endangerm ent, and that conviction of four counts of the same 5 offense for the same continuous course of conduct violates double jeopardy principles. 6 We partially affirm and partially reverse. 7 I. BACKGROUND 8 In 2004, Robin Bailey lived in a house in Alamogordo. She had been separated 9 from her husband, Shishmon, for about a year , and the property was in both of their 10

names. In April, Bailey moved to Kansas City, Missouri. She asked a friend to look 11 after the house, but did not give her a key. However, her friend al so moved to Kansas 12 City two weeks after Bailey did. Shishmon did not have access to the house at that 13 time. 14 In September, Bailey returned to the house in Alamogordo and found that 15 people were living there. According to Bailey, the house was in good condition when 16 she left in April but, upon her return, the house was “trashed” and “messed up.” She 17 eventually contacted the people who were living there and discovered that the 18 occupants were Defendant, his girlfriend (E tta Sides), and four children ages eight, 19 six, two years, and ten months old. Defendant and Sides are the parents of the two 203 younger children. Bailey testifie d that Defendant told her th at they were living in the 1 house, and they had broken the screens a nd hinges on the windows because that was 2 the only way they could get in and out of the house. Bailey told Defendant that she 3 wanted to move back into her house and re turned five to seve n times over the course 4 of the next month, but Defendant and his family did not move out. In mid-October, 5 Bailey called the Children, Y outh and Families Department (CYFD) and reported the 6 condition of the house and the children. 7 Lee Martinez, an employee with CYFD, testified that he and CYFD had 8 received referrals regarding De fendant and his family in the past and had interacted 9 with them before. On October 20, Martinez went to Bailey’s house after getting a 10 referral to check on the welfare of the children living there. When Martinez arrived, 11 he met with Sides and the two younger children. A short time later, the two older 12 children returned from school. Martinez took photographs of the residence, which 13 were admitted into evidence. Martinez testified further th at he was concerned about 14 the condition of the house and the hea lth and safety of the children. According to 15 Martinez, there was trash, s poiled food, a bicycle against a wall that could fall on a 16 crawling child, dirty clothes, sharp object s, broken windows, no gas, dirty dishes, 17 multiple “trip hazards” on the floor, and an insufficient amount of food in the house. 18 Martinez stated that, when the oldest child came home from school, she recognized 19 him as a CYFD employee, and she began picking up beer bottles from the patio and 204 taking them behind the house, presumably to a garbage dumpster. Martinez called for 1 police assistance. 2 Officer Mike Storseth with the Alamogor do Department of Public Safety was 3 dispatched to assist Martinez. The officer testified that, upon his arrival, there were 4 overgrown weeds, a lawn mower, and car part s in the front yard. On the front porch, 5 there were beer bottles, a broken alcohol bottle, a box of beer cans, and ants were 6 “everywhere.” The officer also testified that the yard had “[s]tuff that wouldn’t make 7 it safe for children to be playing around.” Upon entering the house, the officer stated 8 hat the house was dirty and cluttered, and there was “an overwhelming sense of . . . 9 a stink in the air from old food, dirty diapers, just overall being dirty .” The officer 10 described a pot “on the counter that had a little bit of . . . [n]oodles in it[] and liquid, 11 more like it was water that they’d cooked the noodles in this electric . . . cooker. 12 It had been there for a while. . . . It wa s dried up, but there still was some moisture 13 in it indicating to me that recently within the last day or so there [were] people in 14 there that had eaten from that [pot].” The officer further stated that there were 15 “piles of dirty dishes [and] that . . . some of them had been sitting there for a long 16 time. There [were] beer cans [and] beer bottles throughout the kitchen.” Broken 17 glass had been swept into a pile in the k itchen, and more broke n glass was inside a 18 pitcher. There was trash along the baseboard of the kitchen, no heat or hot water in 19 the house, multiple stains on the carpet, trash, dirty diapers and clothes on the floor 205 in the bedrooms, and a child’s car seat and more dirty clothes in the living room. The 1 officer stated that the clothes were piled up so high in one of the bedrooms that he 2 could only get the door open halfway. After seeing the residence, the officer was 3 concerned for the health and safety of the children. 4 Officer Storseth left the house after ninety minutes. In an attempt to contact 5 Defendant, the officer went to Defendant’s mother’s house. Although unable to locate 6 Defendant, the officer noticed, on the frontporch, a black hibachi-type grill with 7 yellow paint splattered on it that was the same color of spla ttered paint he had 8 observed at Bailey’s house in the living r oom on the television and entertainment 9

center. 10 The next day, October 21, 2004, while dr iving to Bailey’s house, in a further 11 attempt to locate Defendant, Officer Stor seth passed a vehicl e driven by Sides in 12 which Defendant was in the passenger seat, and the four children were in the back. 13 The officer testified that after pulling the vehicle over, the officer noticed that the 14 children were not in car seats or wearing seat belts. The officer then contacted his 15 sergeant to have him contact Martinez, w ho arrived on the scene and took the children 16 “for placement.” Martinez testified that when he arrived to take custody of the 17 children, Defendant told him that the family was living at Bailey’s house. 18 II. DISCUSSION 196 Defendant disputes that a rational ju ry could have found, beyond a reasonable 1 doubt, the essential facts required to support a conviction of four counts of child 2 endangerment. Defendant argues that three count s of child endangerment should be 3 vacated because all four counts are base d on unitary conduct and, allowing them to 4 stand, would violate federal and stat e constitutional protections against double 5 jeopardy. We address each issue in turn. 6 A. Child Endangerment 7 Under our standard of review, if r easonable minds could differ on whether 8 Defendant’s acts placed the children in a situation whereby a reasonable probability 9 existed that their health or lives would beendangered, the revi ewing court will defer 10 to the factfinder all conflicts in eviden ce and weight accorded to the testimony of 11 witnesses. State v. Ungarten , 115 N.M. 607, 610, 856 P.2d 569, 572 (Ct. App. 1993). 12 “We view the evidence as a whole and indul ge all reasonable infe rences in favor of 13 the jury’s verdict.” State v. Graham , 2005-NMSC-004, ¶ 13, 137 N.M. 197, 109 P.3d 14 285. We shall not “substitute our judgment for that of the factfinder concerning the 15 credibility of witnesses or the weight to be given their testimony.” Id. ¶ 11 (internal 16 quotation marks and citation omitted). An appellate court will only reject testimony 17 believed by a factfinder “if there is a physi cal impossibility that the statements are 18 true[,] or the falsity of the statement is apparent without reso rt to inferences or 19 deductions.” Id . (internal quotation marks and citation omitted). “Contrary evidence 207 supporting acquittal does not provide a basis fo r reversal because the jury is free to 1 reject [a d]efendant’s version of the facts.” State v. Chavez , 2008-NMCA-126, ¶ 8, 2 145 N.M. 11, 193 P.3d 558 (alteration in original) (internal quotation marks and 3 citation omitted), rev’d on other grounds , 2009-NMSC-035, ___ N.M. ___, ___ P.3d 4 ___ (No. 31,202, June 23, 2009). 5 To the extent that we must interpret our criminal child endangerment statute, 6 that presents a question of la w, which is reviewed de novo. See State ex rel. Children, 7 Youth & Families Dep’t v. Shawna C. , 2005-NMCA-066, ¶ 24, 137 N.M. 687, 114 8 P.3d 367. Statutes defining criminal conduct are strictly construed. Santillanes v. 9 State , 115 N.M. 215, 221, 849 P.2d 358, 364 (1993). “A criminal statute may not be 10 applied beyond its intended scope , and it is a fundamental rule of constitutional law 11 that crimes must be defined w ith appropriate definiteness.” Id. 12 To be convicted, the jury must find the defendant guilty beyond a reasonable 13 doubt of every essential element. See State v. Guzman , 2004-NMCA-097, ¶ 16, 136 14 N.M. 253, 96 P.3d 1173. Section 30-6-1(D)(1) st ates, in pertinent part, that “[a]buse 15 of a child consists of a person knowingly, intentionally or negligently, and without 16 justifiable cause, causing or permitting a child to be . . . placed in a situation that may 178 endanger the child’s life or h ealth.” The jury was instru cted on two different theories 1 of child endangerment: permitted and caused. See UJI 14-604 NMRA; UJI 14-605 2 NMRA. To convict under the theory of caused child abuse (endangerment without 3 great bodily harm or death), the State was required to prove beyond a reasonable 4 doubt that (1) Defendant caused the children to be placed in a situation which 5 endangered their life or health; (2) Defenda nt acted intentionally or with reckless 6 disregard, meaning that he knew, or shoul d have known, that his conduct created a 7 substantial and foreseeable risk, and he disregarded that risk and was wholly 8 indifferent to the consequences of the c onduct and to the welfare and safety of the 9 children; (3) the children were under the age of eighteen; and (4) the conduct took 10 place on or between October 20 and 21, 2004 in New Mexico. UJI 14-604. To 11 convict under the theory of permitting child abuse (endangerment without great bodily 12 harm or death), the State would have had to prove that (1) Defendant permitted the 13 children to be placed in a situation whic h endangered their lives or health; (2) 14 Defendant acted intentionally or with r eckless disregard, meaning that he knew, or 15 should have known, hi s conduct created a substantial and foreseeable risk, and he 16 disregarded that risk and was wholly indi fferent to the consequences of the conduct 17 and to the welfare and safety of the child ren; (3) Defendant wa s a parent, guardian, 18 or custodian of the children, or that he had accepted responsibility for the children’s 19 welfare; (4) the children were under the age of eighteen; and (5) the conduct took 209 place on or between October 20 and 21, 2004 in New Mexico. UJI 14-605. It is 1 unclear from the verdict forms under wh ich theory Defendant was convicted. 2 However, we conclude that the evidence wa s sufficient to convict under either theory. 3 4 A jury could conclude th at Defendant knew, or should have known, of the 5 dangers of allowing the children to be in th at environment. Most convincing of that 6 knowledge was Defendant’s agreement with the testimony of the State’s witness that 7 the house was not “a safe, healthy cond ition for children to be living in[.]” Defendant 8 admits that he was arguably “put on no tice” by earlier CYFD referrals/interactions. 9 Defendant maintains, however, that the house in question was not his, and that there 10 was “no evidence that any member of th e family spent the night at the home in 11 question.” We assume that Defendant’s argument is that there was no proof that the 12 family spent the night at the house on Oct ober 20 and 21, 2004. First, Section 30-6- 13 1(D)(1) does not require ownership in title of property for a conviction. Second, 14 Defendant stated that he and the children stayed the night there on at least three 15 occasions. That admission, combined with othe r evidence, could lead a jury to 16 conclude that Defendant and the childre n were there on the nights in question. 17 Moreover, the statute does not require that Defendant and the children spend the 18 night in a hazardous environment in order for the children to be “placed in a 19 situation that may endanger the child[ren]’s [lives] or health.” Section 30-6-1(D)(1). 2010 While we decline to rule on how much tim e is necessary to expose a child to a 1 hazardous environment before a convic tion under Section 30-6-1(D)(1) will be 2 sustained, we note that New Mexico courts have held in the past that the placement 3 of a child in the direct line of physical danger can happen quickly. See Ungarten , 115 4 N.M. at 608, 856 P.2d at 570 (upholding conviction where knife wielded by the 5 defendant came close to the child’s body); see also State v. McGruder , 6 1997-NMSC-023, ¶¶ 37-38, 123 N.M. 302, 940 P.2d 150 (upholding conviction where 7 the defendant aimed a gun at, and threatened to shoot, the child’s mother when the 8 child was behind the mother, putting the ch ild in a direct line of physical danger); 9 Chavez , 2009-NMSC-035, ¶ 36 (holding that the length of time that conditions are 10 allowed to exist is a factor that can increase or mitigate the degree of risk involved). 11 Defendant testified that he told Bailey they were living there because that was what 12 he wanted her to think. He testified that he had been there on at least four occasions 13 when she came by, that he went there occas ionally to check on the house, and that he 14 guessed that Sides was probably goi ng there in the middle of the day “to get away,” 15 presumably with the two younger children. Officer Storseth testified that while he 16 was en route to the house on October 21, 2004, he encountered the family driving in 17 the opposite direction. Martinez and Bailey te stified that Defendant had told them that 18 he and his family were living there. The circumstantial evidence was that someone 19 had cooked there recently, left diapers ther e, and the two older children came to that 2011 house after school, all lending credence to the inference that Defendant and the 1 children were living there or, at the very least, spending ample time at the house and 2 were there on the days in question. See Graham , 2005-NMSC-004, ¶¶ 10, 14 (holding 3 that reasonable inferences can be drawn from direct and circumstantial evidence). 4 Although Defendant disputes that they were living there, a rati onal jury could have 5 concluded that the family was indeed stayi ng there. “In reviewing the sufficiency of 6 evidence used to support a convi ction, we resolve all disputed facts in favor of the 7 State, indulge all reasonable inferences in support of the verdict, and disregard all 8 evidence and inferences to the contrary.” State v. Rojo , 1999-NMSC-001, ¶ 19, 126 9 N.M. 438, 971 P.2d 829 (filed 1998). Whethe r Defendant and the children were 10 sleeping at the house misses the point of whether the children were endangered by 11 being in that environment on the days in question. 12 Defendant also claims that there was no evidence that any of the children were 13 left unattended around any of the dangers in the house. The State argues that one of 14 the children was observed picking up b eer bottles unattended when she came home 15 from school. Even if the children were s upervised, they could still be injured easily 16 and quickly by any of the hazards in the house. A jury could reasonably infer that the 17 children were endangered in that environment and were more endangered the longer 18 they were exposed to the conditions, regard less of a specific showing of the children 19 being unattended and having their lives, health, or safety jeopardized. See id. ; see also 2012 Chavez , 2009-NMSC-035, ¶ 36 (holding that the amount of supervision in a home is 1 a factor that can incr ease or mitigate the degree of risk involved)

. “A reviewing court 2 may neither reweigh the evidence nor substitute its judgment for that of the jury.” 3 State v. Sutphin , 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). 4 Citing to State v. Jensen , 2006-NMSC-045, ¶ 14, 140 N.M. 416, 143 P.3d 178, 5 Defendant contends that “[ w]hen filthy living conditions provide the exclusive basis 6 for charging a defendant with child endangerm ent, the [s]tate mustassist the trier of 7 fact with evidence that supports a finding that there is a reasonable probability or 8 possibility that such filthy conditions endangered the child.” Defendant argues that 9 the State never connected any harm, or ri sk of harm, to the children from the 10 conditions of the home. Defendant argues that, unlike Jensen , the State introduced no 11 evidence upon which a rational jury could ha ve found that his conduct posed a risk of 12 harm. 13 We initially note that in light of Chavez , which was decided while this case was 14 on appeal, the standard has now become a “ substantial and foreseeable risk” that 15 filthy conditions endanger a child. 2009-NM SC-035, ¶¶ 21-22, 31 (internal quotation 16 marks and citation omitted). We make tw o observations. First, this case is not 17 exclusively about filthy living conditions. Officer Storseth testified that when he 18 encountered the family on October 21, 2004, the four children were in the back seat 19 of a vehicle and were not wearing seat belts. In Chavez , our Supreme Court noted that 2013 an endangerment charge premised on a combination of risks, including filthy living 1 conditions and criminal acts, can have a cumulative effect. Id. ¶ 30. “Where a 2 defendant’s underlying conduct viol ates a separate criminal statute, such legislative 3 declaration of harm may be useful, though not dispositive, to an endangerment 4 analysis when the Legislature has defined th e act as a thr eat to public health, safety, 5 and welfare.” Id. ¶ 25; see NMSA 1978, § 66-7-369(A) (2001) (amended 2005) (“A 6 person shall not operate a passe nger car, van or pickup truck in this state . . . unless 7 all passengers less than eighteen years of age are properly restrained.”); see also 8 Graham , 2005-NMSC-004, ¶ 12 (noting that the Legislature’s designation of 9 marijuana as a Schedule I controlled substa nce and increased penalties for distributing 10 marijuana to minors or in the vicinity of schools, all illustrate a legislative 11 determination that marijuana is a dangerous substance, particularly for minors). 12 Second, the jury did hear testimony thatassisted them in determining whether 13 there was a substantial and foreseeable threat of serious injury. See Chavez , 14 2009-NMSC-035, ¶ 35. Martinez testified that he had concerns for the health and 15 safety of the children based on what he obs erved at the house. He specifically noted 16 that his concern was based on the trash in the house, the spoiled food, a bicycle that 17 was precariously placed against a wall that could fall on a crawling child, lack of food 18 in the house, five bags of garbage or ot her debris that could cause “trip hazards,” 19 barbeque grills, sharp objects, and broken windows. Officer Storseth testified that the 2014 yard was not a safe place for a child to pl ay, that it did not appear that there was 1 enough food in the house for the children to eat, and that there was no hot water or 2 heat. Additionally, the State argues that harm from other dangers were apparent and 3 required no explanation. We agree. No explanation about how broken glass on the 4 floor could hurt a young, crawling child woul d need to be explained to a jury. See id. 5 ¶ 24 (discussing endangerment cases where the seriousness of the threatened injury 6 is apparent); Dull v. Tellez , 83 N.M. 126, 128, 489 P.2d 406, 408 (Ct. App. 1971) 7 (defining a reasonable inference as “a rational and logical deduction from facts 8 admitted or established by the evidence, wh en such facts are viewed in light of 9 common knowledge or common experience”). 10 This Court is unpersuaded by Defendant’s a ssertion that the verdicts were based 11 on the speculation of potential harm. Citing to State v. Massengill , 2003-NMCA-024, 12 ¶¶ 43-48, 133 N.M. 263, 62 P.3d 354 (filed 2002) , Defendant argues that his conduct 13 was not intended to be covere d by the child abuse statute. Defendant’s argument is 14 that parents with unsanitary and unsafe hom es should not be convicted of a third15 degree felony because there is recourse fo r the State under the civil code. Further, 16 Defendant argues that his conduct did not rise to the level of criminal liability. We 17 conclude that reliance on Massengillin this context is misplaced. 18 Massengillconcerned a baby stroller that fe ll off a sidewalk and tipped over, 19 an accidental situation far diffe rent from the situation here. See id. ¶ 44. In Chavez , 2015 our Supreme Court discussed the differen ce between civil and criminal laws that 1 address child abuse. 2009-NM SC-035, ¶¶ 12-26. That opinion clearly held that filthy 2 living conditions alone may, in some circumst ances, rise to the level of being criminal 3 in nature. Id. ¶¶ 27, 31, 40. “Child abuse by endangerment, as opposed to physical 4 abuse of a child, is a special classificati on designed to address situations where an 5 accused’s conduct exposes a child to a signi ficant risk of harm, even though the child 6 does not suffer a physical injury.” Id . ¶ 15 (emphasis omitted) (internal quotation 7 marks and citation omitted). “[T]here are several factors the factfinder may consider 8 to determine whether the risk created by an accused’s conduct is substantial and 9 foreseeable.” Id . ¶ 23. Not every risk of injury will rise to the level of felony child 10 endangerment. Id . ¶ 35. However, a child’s particul ar susceptibility to a harm is a 11 factor that a jury can consider in de termining if child abuse has occurred. Id . The 12 State is required to establish that the risks of the home in question are “far greater than 13 those in the average home.” Id

. 14 Our Supreme Court noted thatevidence of past civil actions can put a defendant 15 on notice of the potential for criminal prosecution. Id . ¶ 42. In the immediate case, 16 Martinez testified that as an investigatorfor CYFD, he was aware of four referrals 17 regarding Defendant and his family li ving in other residences in Alamogordo. 18 Martinez testified that, following the first re ferral, he met with Defendant and Sides, 19 and they were declining services. Following the second referral, Martinez gave 2016 Defendant his card, presumably to assist De fendant in getting services for his family, 1 but Defendant never contacted him. After the third referral, the determination was 2 made to provide the family with in-hom e services, which focu sed on assisting the 3 family in getting utilities and concentrated on issues such as housekeeping, basic child 4 care, nutrition, cleanliness, parental res ponsibilities, and the security needs of the 5 children. Martinez testified further that there wa s a fourth referral that he was aware 6 of on which he was not the a ssigned caseworker/investigator. There is no need for the 7 State to exhaust all of its civil remedies before turning to a criminal sanction. Id . ¶ 43. 8 The State did have meaningful interaction with Defendant concerning the care of the 9 children. 10 We underscore that, in this case, the jury heard testimony about Defendant 11 being in a vehicle with the children unrestr ained in the back seat on October 21, 2004, 12 as well as testimony about the house in que stion. Defendant engaged in a per se 13 unlawful act that bolsters his endangerment charges. Id. ¶ 31. Evidence was 14 presented to the jury about the incident inthe vehicle, the living conditions, and the 15 past interactions with CYFD. The jury convicted Defendant of criminal child 16 endangerment and, under this Court’s standard of revie w, we will not reweigh the 17 evidence. 18 B. Unit of Prosecution 1917 This Court holds that Defendant wa s involved in one continuous act of 1 indifference and endangerment of the child ren and, accordingly, we vacate three 2 counts of child endangerment. In a very similar case, this Court held that a father 3 that had been convicted on multiple count s due to the living conditions of multiple 4 children should have been convicted on only one count on the premise that the 5 crime was a singular, continuous course of conduct. Chavez , 2008-NMCA-126, ¶¶ 6 17-21. Similarly, the conduc t here is not sufficiently separated in time and space to 7 warrant separate convictions. 8 When an accused is charged with multiple violations of a statute and raises a 9 double jeopardy challenge, we mu st determine whether the in tent of the Legislature 10 was to permit multiple charges and punishme nts under the circumstances of the case. 11 Id. ¶ 18. Section 30-6-1 does not define the unit of prosecution, so this Court must 12 determine whether the “different offens es are separated by sufficient indicia of 13 distinctness.” State v. Castañeda , 2001-NMCA-052, ¶ 13, 130 N.M. 679, 30 P.3d 368 14 (internal quotation marks and citation omitted). “[S]ingle-statute[,] unit-of15 prosecution issues should be decided on a case-by-case basis.” Id. ¶ 15. 16 The State concedes that Defendant’s c onvictions were “premised on a singular, 17 albeit continuous, course of conduct that amounts to child abuse by endangerment.” 18 The State agrees that under Castañeda and Chavez , Defendant’s conduct with regard 19 to the four children constituted only one count of child abus e by endangerment. We 2018 accept the State’s constrained conces sion and decline to reconsider Castañeda and 1 Chavez

. 2 III. CONCLUSION 3 We affirm one conviction unde r Section 30-6-1(D)(1) and remand with 4 instructions to the district court to vacat e the remaining three convictions under that 5 statute and for appropriate sentencing. 6 IT IS SO ORDERED. 7

_______________________________ 8 ROBERT E. ROBLES, Judge 9 WE CONCUR: 10

___________________________ 11 JAMES J. WECHSLER, Judge 12

___________________________ 13 JONATHAN B. SUTIN, Judge 14