14-622. Child abuse resulting in death; reckless disregard; child under 12; essential elements.
For you to find ____________________ (name of defendant) guilty of child abuse with reckless disregard resulting in death of a child under twelve (12) years of age, [as charged in Count ____,]1 the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. ________________ (name of defendant) __________________________ (describe conduct or course of conduct alleged to have been child abuse).2
2. By engaging in the conduct described in Paragraph 1, ________________ (name of defendant) [caused] [or] [permitted]3 _________________ (name of child)
[to be placed in a situation that endangered the life or health of ______________ (name of child);]4
[OR]
[to be exposed to inclement weather;]
[OR]
[to be [tortured ] [or] [cruelly confined] [or] [cruelly punished]]
3. _________________ (name of defendant) showed a reckless disregard [without justification]5 for the safety or health of _________________ (name of child). To find that __________________ (name of defendant) showed a reckless disregard, you must find that __________________ (name of defendant)’s conduct was more than merely negligent or careless. Rather, you must find that _________________ (name of defendant) [caused] [or] [permitted]3 a substantial and unjustifiable risk of serious harm to the safety or health of _________________ (name of child). A substantial and unjustifiable risk is one that any law-abiding person would recognize under similar circumstances and that would cause any law-abiding person to behave differently than _________________ (name of defendant) out of concern for the safety or health of _________________ (name of child);
[4. __________________ (name of defendant) was a parent, guardian or custodian of the child, or __________________ (name of defendant) had accepted responsibility for the child’s welfare;]6
5. _______________________ (name of defendant)’s conduct resulted in the death of ______________________ (name of child);
6. _______________________ (name of child) was under the age of twelve (12);
7. This happened in New Mexico on or about the ____________ day of ______________, ________.
USE NOTES
1. Insert the count number if more than one count is charged.
2. As used in this instruction, “conduct” may describe an act or a failure to act that causes child abuse or that permits child abuse to occur.
3. In most cases, only one of the bracketed alternatives should be given in a single instruction. However, both alternatives may be given in the same instruction if the evidence supports a finding beyond a reasonable doubt that the defendant either “caused or permitted” child abuse. See State v. Leal, 1986-NMCA-075, ¶13, 104 N.M. 506, 723 P.2d 977 (“Since abuse will frequently occur in the privacy of the home, charging a defendant with ‘causing or permitting’ may enable the state to prosecute where it is not clear who actually inflicted the abuse, but the evidence shows beyond a reasonable doubt that the defendant either caused the abuse or permitted it to occur.”).
4. Use only applicable alternative or alternatives.
5. If “justification” is an issue, this bracketed alternative must be given if requested.
6. Use this element only when there is evidence that the defendant permitted child abuse.
[Adopted by Supreme Court Order No. 15-8300-001, effective for all cases filed or pending on or after April 3, 2015.]