State v. Taylor

                                                                       Office of the
                                                                                          New Mexico
                                                                           Director       Compilation
                                                                                          Commission
                                                                        2024.05.14
                                                                   '00'06- 15:54:18
            IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: March 14, 2024

No. S-1-SC-38818

STATE OF NEW MEXICO,

       Plaintiff-Respondent,

v.

SANDI TAYLOR and MARY TAYLOR,

       Defendants-Petitioners.

ORIGINAL PROCEEDING ON CERTIORARI
Donna Mowrer, District Judge

Harmon, Barnett & Morris, P.C.
Tye C. Harmon
Clovis, NM

Wray Law P.C.
Katherine Wray
Albuquerque, NM

for Petitioners

Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM

for Respondent

                                        OPINION

VIGIL, Justice.

{1}    This appeal calls on us to once again consider the propriety of jury instructions in
a reckless child abuse case, a recurrent theme in our jurisprudence. Most recently,
State v. Consaul and State v. Montoya identified and examined several pervasive
problems with then-existing uniform jury instructions on child abuse as defined in NMSA
1978, Section 30-6-1 (2009). See Consaul, 

, 

(concluding that the uniform jury instructions for child abuse did not “adequately
capture[] the true nature of the crime and the legislative intent behind the statute”);
Montoya, 

, 

, (noting “[t]he confusion caused by
the dissonance between our case law and our jury instructions for child abuse”). This
Court addressed these problems by implementing in 2015 the substantial revisions to
our reckless child abuse jury instructions in effect today. See UJI 14-612, -615, -621,
and -622 NMRA.

{2}    The problem with the jury instructions used at Defendants’ joint trial arises from
confusion and misdirection due to the unfortunate use of an inappropriate conjunctive
term in the complex, essential-elements instructions that set out the course of conduct
the jury was required to find in order to return guilty verdicts. The confusion and
misdirection stem from the use of a single and/or connector to separate and join no
fewer than four distinct propositions for the jury’s consideration. The term and/or has
proved singularly unsuited to formulating clear and effective jury instructions, to the
degree that our trial courts would be well-served to avoid its use in jury instructions
altogether. The underlying jury instructions’ use—or, more accurately, misuse—of the
and/or connector requires this Court to reverse Defendants’ reckless child abuse
convictions.

{3}    Our determination to reverse Defendants’ convictions and remand for a new trial
based on this instructional error makes it unnecessary for us to address Defendants’
remaining arguments concerning the jury instructions, a double jeopardy merger claim,
and evidentiary arguments. State v. Mascarenas, 

, ¶ 1, 

,

 (declining to reach other issues brought before the Court when the first
issue supports reversal and remand).

I.     BACKGROUND

{4}    The facts underlying this appeal are undeniably tragic. Defendants Mary Taylor
and Sandi Taylor, mother and daughter, operated a licensed daycare out of their home
in Portales, New Mexico. In July 2017, Defendants used two SUVs to drive the twelve
children under their care to a nearby park for lunch and playtime. Of the six children
who were passengers in Sandi’s SUV, two of them, M.J. and A.L. (the Victims), were
less than two years old, each riding in a car seat in the middle row of the SUV.

{5}     Driving from the playground in separate vehicles, Defendants and all twelve
children returned to the daycare shortly before 1:00 p.m., when the outdoor temperature
was 91 degrees. Upon arrival, all four of the older children who were riding with Sandi
and all six of the children who were riding with Mary exited their respective vehicles and
went inside the daycare. Without noticing that the Victims were still seated in Sandi’s
vehicle, both Defendants entered the daycare as well. Defendants remained there until
Sandi, for reasons unrelated to the whereabouts of the Victims, returned to her vehicle
over two-and-a-half hours later and found M.J. blue in color and unresponsive and A.L.
limp and slouched over. Defendants immediately called the police and made diligent
efforts to attend to the Victims, but their efforts were futile. Due to the Victims’ prolonged
heat exposure, M.J. died, and A.L. suffered severe neurological injuries.
{6}     The State charged each Defendant with reckless child abuse by endangerment
resulting in M.J.’s death and reckless child abuse by endangerment resulting in great
bodily harm to A.L., both of which are first-degree felonies under Section 30-6-1(D)(1),
(E)-(F). The evidence at trial was undisputed in several respects. The State stipulated
that Defendants did not intend to leave the Victims in Sandi’s vehicle, and responding
police officers agreed that there were no signs that Defendants were aware that the
Victims remained in the vehicle until Sandi returned to the vehicle. On this score, Sandi
told police officers at the scene that both she and her mother believed the other had
removed the Victims from the vehicle and brought them inside the daycare upon
returning from the park.

{7}     A videotape of Sandi’s police interview containing candid admissions was played
for the jury in its entirety. During the interview, Sandi acknowledged both that she
“forgot” the Victims in the vehicle and that Defendants did not follow their usual practice
to do a headcount of the children at any time after returning to the daycare.

{8}    The jury convicted each Defendant of reckless child abuse resulting in death and
reckless child abuse resulting in great bodily harm. Each Defendant was sentenced to
eighteen years for each count, totaling thirty-six years each. The Court of Appeals
affirmed in a precedential opinion. See State v. Taylor, 

, 

. On certiorari review, we reverse the Court of Appeals, holding that the essential
conduct elements of the jury instructions as given constitute reversible error because
they would have confused or misdirected a reasonable juror.

II.    DISCUSSION

A.     The Jury’s Elements Instructions

{9}     Defendants contend reversible error resulted when the district court failed to
properly identify the conduct or course of conduct alleged to be child abuse in the
elements instruction. Specifically, Defendants argue that the instruction’s listing of the
elements of essential conduct with an and/or conjunction provided for alternative ways
for the jury to find that Defendants committed child abuse without requiring the jury to
unanimously agree on any of those alternatives. Applying a de novo standard of review,
we agree with Defendants.

{10} “The propriety of jury instructions given or denied is a mixed question of law and
fact” which we review de novo. State v. Salazar, 

, 

,

. As Defendants preserved each of the instructional issues now raised,
“we review the instructions for reversible error,” State v. Benally, 

,

, 

, a process which requires us to consider the “instructions
as a whole, not singly, and . . . look to see whether a reasonable juror would have been
confused or misdirected by the . . . instructions,” State v. Munoz, 

,

, 

 (internal quotation marks and citation omitted). “[J]uror
confusion or misdirection may stem not only from instructions that are facially
contradictory or ambiguous, but from instructions which, through omission or
misstatement, fail to provide the juror with an accurate rendition of the relevant law.”
Benally, 

.

{11} The indictments are identical in how they allege Defendants committed child
abuse. Pertinent here, Count 1 alleges each Defendant “left the child unattended in a
heated vehicle, which resulted in the death of M.J.”, and Count 2 alleges each
Defendant “left the child unattended in a heated vehicle, which resulted in great bodily
harm to A.L.” At trial, the parties disagreed on how to describe the conduct required for
the jury to find Defendants guilty of reckless child abuse. See UJI 14-615, -622
(requiring the court to “describe [the] conduct or course of conduct alleged to have been
child abuse”). Defendants requested that the jury be required to find that Defendants left
the Victims “unattended in a vehicle, exposed to unsafe temperatures, for a time period
exceeding two hours.” The State’s requested instruction, adopted fully by the district
court, identified four different acts. The district court instructed the jury that to find
Defendants guilty of reckless child abuse, it had to find that

        [Defendants] did not follow the proper rules and procedures mandated by
        CYFD in conducting the care of [the Victims], including failing to do
        headcounts, driving [the Victims] without CYFD permission, failing to have
        [a] proper care giver to child ratio when [the Victims were] in [Defendants’]
        care, and/or failing to remove [the Victims] from a vehicle which resulted in
        [the Victims] being left unattended in that vehicle and exposed to unsafe
        temperatures for a time period of approximately two hours and 40
        minutes.

(Emphases added.)

{12} As we explain next, the presence of and/or in the all-important conduct element
of the essential-elements instructions confused and misdirected the jury and allowed it
to make a finding of guilt on a legally inadequate basis. 1            0F




{13} More than seventy-five years ago, this Court criticized the use of and/or in the
context of jury instructions:

        [T]he highly objectionable phrase “and/or” . . . has no place in pleadings,
        findings of fact, conclusions of law, judgments or decrees, and least of all
        in instructions to a jury. Instructions are intended to assist jurors in
        applying the law to the facts, and trial judges should put them in as simple

1Although the point is not raised by Defendants, we note the potential problems inherent in the use of the
word including in these jury instructions. When used in this setting, the word including—“usually a term of
enlargement, and not of limitation, that . . . connotes . . . an illustrative application,” United States v. Cline,

 (5th Cir. 2021) (internal quotation marks and citation omitted)—can allow a jury “to
roam freely through the evidence and choose any facts which suit[] its fancy or its perception of logic to
impose liability,” Scanwell Freight Express STL, Inc. v. Chan, 

 (Mo. 2005) (en banc)
(internal quotation marks and citation omitted). Without addressing this unraised issue head-on, we
simply acknowledge there are additional concerns presented by the use of the word including alongside
the already ambiguous term and/or in the conduct element of the jury instructions in this case.
       language as possible, and not confuse them with this linguistic
       abomination.

State v. Smith, 

, ¶¶ 7-8, 

, 

 (involving the
misuse of and/or in jury instructions that defined the essential elements of seconddegree murder), quoted approvingly in Bryan A. Garner, Garner’s Dictionary of Legal
Usage, 57 (3d ed. 2011). And over the years other courts have joined this criticism.
See, e.g., Garzon v. State, 

 (Fla. 2008) (“condemn[ing]” the
unobjected-to use of the and/or conjunction between names of codefendants in jury
instructions that set out the elements to be proven, but holding that the error was not
fundamental); State v. Gonzalez, 

 (N.J. Super. Ct. App. Div. 2016)
(concluding that the trial court’s repeated use of the imprecise term and/or in its jury
instructions was “so confusing and misleading as to engender great doubt about
whether the jury was unanimous with respect to some part or all aspects of its verdict or
whether the jury may have convicted the defendant by finding the presence of less than
all the elements the prosecution was required to prove”); Commonwealth v. Johnson,

 (Mass. App. Ct. 1998) (setting aside a verdict convicting the
defendant of violating a domestic protective order based on an erroneous jury
instruction that permitted a conviction upon a finding “that the defendant violated the
order by abusing [the victim], ‘. . . and/or [by] contacting [her],’” where contact was not
“a restraint” prohibited by the order (alterations and omission in original)).

{14} Commentators, too, have weighed in on the subject, including the
aforementioned Bryan A. Garner, whose unvarnished view is that “the only safe rule to
follow is not to use the expression [and/or] in any legal writing, document or proceeding,
under any circumstances.” Garner, supra, at 57 (internal quotation marks and citation
omitted). But other commentators, including Professor Ira P. Robbins, espouse a more
measured approach which recognizes that while the “proper use of and/or creates
neither ambiguity nor confusion” in most areas of the law, the term “should not be used
in jury instructions,” especially “[i]n cases that involve more than one person, victim, or
element of a crime or civil cause of action, [because] jury instructions that use the term
[in that context] carry the risk of jurors making decisions they are not allowed to make.”
Ira P. Robbins, “And/or” and the Proper Use of Legal Language, 

,
315, 320 (2018).

{15} Regardless of the circumstances or context of its legal usage, the intended
meaning of the term and/or is rendered all the more confusing where, as here, it is used
to both separate and join more than two propositions in a single statement. Professor
Robbins explains the added complexities of this linguistic dilemma:

       Using and/or to separate two terms, such as “A and/or B,” invites the
       reader to choose only A, only B, or both A and B. Thus, a reader is
       presented with only three options when and/or is used to separate two
       terms.

                                          . . .
        [However, as] opposed to “A and/or B,” adding an additional proposition,
        C, can leave a reader guessing whether and/or is intended to be placed
        between all propositions or only some of the propositions. On the one
        hand, “A, B and/or C” could provide a choice among A, B, C, or any
        combination thereof, equal to ‘A and/or B and/or C.’ On the other hand,
        the placement of and/or between B and C might suggest that and/or is
        intended to provide a choice between only B and C, with A remaining a
        constant. In this scenario, the possible choices for the reader end up being
        A and B, A and C, or all three propositions.

Robbins, supra, at 316, 335 (footnotes omitted). 2 We agree with Professor Robbins that
                                                            1F




a trial court should not ask a lay jury to unravel such a complex syntactical problem.
This fraught endeavor can serve only, and needlessly, to sidetrack a jury from its critical
fact-finding role.

{16} The jury was required to parse the complexities created by the presence of
multiple alternative propositions framed by a single and/or connector in determining
whether the course of conduct allegedly engaged in by Defendants in the hours leading
up to the tragic incident constituted reckless child abuse. The jury was left to pick and
choose between what the court presented as no fewer than four alternative species of
conduct attributed to Defendants and to assess the nature and severity of the risks each
presented—both individually and in combination—with no guidance to aid its inquiry.
This violated our teaching in Consaul, 

, that “[w]hen two or more
different or inconsistent acts or courses of conduct are advanced by the State as
alternative theories as to how a child’s injuries occurred, then the jury must make an
informed and unanimous decision, guided by separate instructions, as to the culpable
act the defendant committed and for which he is being punished.”

{17} An additional problem with the conduct element of the essential-elements
instructions goes beyond the convoluted form of the instructions and compounds juror
confusion and misdirection. We refer to the fact that the multiple propositions set out in
the instructions involve acts or omissions that fit into two separate and distinct
categories of conduct. The first category is Defendants’ alleged violations of one—or
more—of the policies put into place by CYFD to promote the safe operation of daycare
facilities in New Mexico. The second category is the exclusive focus on Defendants’
ultimate conduct, as described in the underlying indictments, of having left the Victims
“unattended in a heated vehicle.”

{18} The record of the jury instruction conference reveals that the references in the
instructions to Defendants’ alleged CYFD lapses were intended, from the State’s
perspective, to satisfy the recklessness requirement of the charged child abuse

2It stands to reason that the number and complexity of choices that a jury need make necessarily
increases in circumstances where, as in this case, four propositions are presented with but a single
and/or conjunction. In this regard, the use of and/or serves to compound the comprehensibility problems
already created by a jury instruction’s “string[ing] of [multiple] items or attributes [in] lists.” Robert P.
Charrow & Veda R. Charrow, Making Legal Language Understandable: A Psycholinguistic Study of Jury
Instructions, 

, 1329 (1979).
offenses by shedding light on the “the totality of circumstances” surrounding the incident
and on all “the risks that [Defendants] disregarded.” In contrast, the jury instructions’
reference to Defendants’ ultimate act of neglecting to remove the Victims from the
vehicle intended to relate to the conduct or actus reus component of the child abuse
charges. But the divergent purposes and relative import of these two categories of
conduct were never explained to the jury. In combining these two distinct categories of
elements, the district court gave the jury confusing and misleading instructions that
failed to “provide members of the jury with a clear and correct understanding of what it
is they are to decide.” State v. Bovee, 

 (Haw. 2017) (internal
quotation marks and citation omitted); 

 (finding reversible error in a jury instruction
which “conflated the ‘conduct’ and ‘attendant circumstances’ elements of the offense”
charged); see also State v. Traeger, 

, 

, 

(concluding that the combining of two independent elements of a crime in a single jury
instruction made for “awkward phraseology” and an unduly “complicated” instruction).

{19} It is thus clear that a reasonable juror, at least one untrained as a linguist, “would
have been confused or misdirected by the jury instruction[].” Munoz, 

 (internal quotation marks and citation omitted). This conclusion is buttressed by
empirical studies that confirm the substantial conceptual challenges jurors face in
properly understanding the interplay between criminal “intent and act requirements.”
Avani Mehta Sood, What’s So Special About General Verdicts? Questioning the
Preferred Verdict Format in American Criminal Jury Trials, 22 Theoretical Inquiries L.
55, 65-66 (2021) (noting that mock jurors who participated in experiments conducted by
the author reported “that they misperceived the act element of the offense as an
alternative to the intent element, or they treated proof of intent as sufficient for
conviction regardless of whether the requisite act had been proven”). The essential-elements instructions here only added to jury confusion and misdirection instead of
lessening these problems.

{20} In the final analysis, the conduct element instructions, with their complex
structure and prominent use of the term and/or, on their face, allowed the jury to make a
“decision[] they [were] not allowed to make,” Robbins, supra, at 320. That is to say, the
jury was allowed to return guilty verdicts solely based on one or more of Defendants’
alleged CYFD violations. For our analysis, this Court need not dispositively address the
legal efficacy of each of the several conviction choices available to the jury under the
essential-elements instructions as framed. Instead, it is enough to point out that the jury,
as instructed, could have convicted Defendants on the charged felony child abuse
crimes for merely failing to obtain agency permission to transport the children to and
from a nearby park. This technical violation of the agency’s policies could not support a
stand-alone finding that Defendants placed the Victims in any “direct line of danger.”
State v. Garcia, 

, 

 (recognizing that “[t]he risk
[associated with child endangerment] cannot be merely hypothetical, as the child must
be physically close to an inherently dangerous situation of the defendant’s creation”
(emphasis, internal quotation marks, and citation omitted)).

{21} In rejecting Defendants’ arguments under this point, the Court of Appeals relied
on State v. Godoy, 

, 

, reiterating that “where
alternative theories of guilt are put forth under a single charge, jury unanimity is required
only as to the verdict, not to any particular theory of guilt” and that a “jury’s general
verdict will not be disturbed in such a case where substantial evidence exists in the
record supporting at least one of the theories of the crime presented to the jury.” Taylor,

 (internal quotation marks omitted). For two reasons, the
Court of Appeals inappropriately relied on Godoy. First, because the issue argued in
Godoy was not preserved, the Godoy Court initially addressed whether there was a
fundamental error in the instructions, Godoy, 

, whereas the issue
in this case was preserved. Second, and decisively, Godoy has no applicability to
cases, such as this case, in which one of the alternatives on which the jury is allowed to
return a guilty verdict is legally inadequate. State v. Sena, 

, 

; see also Johnson, 

 (concluding that when a verdict is
supported on one ground but not another, and it is impossible to tell on which ground
the jury relied, the verdict is invalid); see generally State v. Dowling, 

, 

, 

 (stating that “if an instruction is facially erroneous it
presents an incurable problem and mandates reversal” (internal quotation marks and
citation omitted)). Defendants’ convictions are reversed due to the confusing,
misleading, and incorrect elements instructions given to the jury.

B.     Sufficiency of the Evidence

{22} Having determined that the improper use of and/or in the elements instructions
mandates reversal, we next consider Defendants’ sufficiency of the evidence claim to
determine whether the prohibition against double jeopardy prevents a retrial. See State
v. Garcia, 

, 

 (stating that under well-settled
precedent, if the evidence presented at trial was insufficient to support the conviction,
double jeopardy entitles a defendant to dismissal of the charges on remand).

{23} In seeking an outright dismissal of the underlying reckless child abuse charges
instead of a new trial, Defendants point to both the parties’ trial stipulation that
Defendants did not intend to leave the Victims inside the vehicle and the police
testimony confirming that Defendants were initially unaware that the Victims had
remained in the vehicle upon Defendants’ returning to the daycare. From this,
Defendants maintain that their failure to remove the Victims from the vehicle “was the
result of accidental, inadvertent, or unknowing conduct” beyond the reach of New
Mexico’s reckless child abuse statute. As Defendants frame the argument, for a
caregiver to commit reckless child abuse by leaving a child in a hot car, “the [caregiver]
must know [that] the child has been left in the hot car.” There being no evidence
presented that Defendants actually knew the Victims were left in the vehicle when
Defendants returned to the daycare, they assert they are entitled to a dismissal of the
charges. The Court of Appeals rejected Defendants’ argument. State v. Taylor, 2021-
NMCA-033, ¶¶ 7-9. For the following reasons, we also reject Defendants’ argument.

{24} We have already rejected the premise that a prerequisite to the imposition of
criminal liability for reckless child abuse is a defendant’s subjective knowledge that a
substantial and unjustifiable risk of harm actually exists. Instead, the reckless element of
child abuse in New Mexico is properly evaluated under an objective test.
{25} In Consaul, we recognized that our existing uniform jury instructions on negligent
child abuse were confusing. 

, ¶ 28. They combined concepts of civil
negligence using “knew or should have known” with criminal negligence and “reckless
disregard.” Id. (internal quotation marks and citation omitted). To avoid any further
confusion, we determined that what had previously been called “‘criminally negligent
child abuse’” would thereafter be called “‘reckless child abuse’” without any reference to
negligence, as being consistent with the Legislature’s intent “to punish acts done with a
reckless state of mind” for a violation of Section 30-6-1. Id. ¶¶ 36-38. We also
determined that our uniform jury instructions would be changed to reflect that to find a
defendant guilty of reckless child abuse, a jury must find that the defendant acted with
reckless disregard. Id. ¶ 40. In 2015, we adopted UJI 14-622 to set forth the essential
elements a jury must find on a charge of child abuse resulting in death and UJI 14-615
to set forth the essential elements a jury must find on a charge of child abuse resulting
in great bodily harm. Both require the jury to find that a defendant acted with “reckless
disregard.” UJI 14-615, -622. Those instructions were given in this case. In order to find
that Defendants committed child abuse resulting in death and child abuse resulting in
great bodily harm, the jury was required to find that each Defendant

       showed a reckless disregard for the safety or health of [the Victims]. To
       find that [Defendant] showed a reckless disregard, you must find
       [Defendant’s] conduct was more than merely negligent or careless.
       Rather, you must find that [Defendant] caused or permitted a substantial
       and unjustifiable risk of serious harm to the safety or health of [the
       Victims]. 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 [Defendant] out of
       concern for the safety or health of [the Victims].

Under our instructions, the standard for the jury to determine whether “a substantial and
unjustifiable risk” exists is objective: it is what “any law-abiding person” would recognize
under the circumstances and which would cause “any law-abiding person” to act
differently. UJI 14-615, -622. Subjective, actual knowledge of the risk is not an element
of reckless child abuse under the UJIs.

{26} Nor is subjective knowledge required under Consaul. See 

, ¶¶
37, 40 (adopting reckless disregard as the standard for negligent child abuse and
resolving to address whether “knew or should have known” should remain in the child
abuse instructions); see also, e.g., UJI 14-622 (setting forth an objective standard for
“reckless disregard” without reference to knew or should have known).

{27} We are not alone in requiring a jury to decide whether a defendant caused or
permitted a substantial unjustifiable risk of serious harm to the safety or health of a child
to be determined against an objective standard. For example, in People v. Valdez, 

 (Cal. 2002), a prosecution was brought under a statute which provides that
anyone who “‘willfully causes or permits [a] child to be placed in a situation where his or
her person or health is endangered’” is guilty of felony child abuse. 

 at 514 & n.3
(citation omitted). The jury convicted the defendant for having entrusted her infant
daughter to a caregiver—the defendant’s live-in fiancé—who had a history of
mistreating the infant and who ultimately beat and shook the infant to death. 

.
As recounted by the California Supreme Court, the Court of Appeal of California held
that the statute required proof that the accused “know or be aware of the danger.” 

{28} The California Supreme Court granted the attorney general’s petition for review
and reversed. 

. In support of the Court of Appeal’s holding, the defendant
argued to the Valdez Court that to satisfy the felony endangerment prong of the statute,
a defendant “must have a subjective awareness of the risk” involved. 

. The
Valdez Court squarely rejected that premise as unsupported by the statutory language
and as “inconsistent with the purpose of [the statute], which is to protect vulnerable
members of society from a wide range of dangerous situations.” 

 The Valdez Court
explained that the “defendant’s interpretation would harm children and the elderly by
protecting their abusers from prosecution through the erection of an unjustified, and
difficult to establish, evidentiary hurdle of subjective awareness of the risk.” 

 (internal
quotation marks omitted).

{29} An example, the Valdez Court pointed out, was Walker v. Superior Court, 

 (Cal. 1988), in which “the mother’s concern for her daughter and good faith
belief [that] prayer would cure her, would negate such subjective intent despite the fact
the mother intentionally withheld medical treatment from the four-year-old daughter
resulting in her suffering and death.” Valdez, 

. Pertinent to the case
before us, the Valdez Court noted that infant hyperthermia deaths resulting from parents
or caretakers leaving infants in cars fell in the same category, because the parents or
caretakers “could claim they had no idea the car temperature would rapidly rise to a
fatal level.” 

 The court concluded that imposing a subjective awareness of the risk
“would contravene the legislative intent to impose criminal liability on persons who
flagrantly disregard the health and safety of children in their custody or care.” 

{30} Whitfield v. Commonwealth, 

 (Va. Ct. App. 2010), also supports
our reasoning and conclusion. On a summer morning, the defendant in Whitfield, a van
driver whose job was to pick up and deliver children to daycare, placed a thirteenmonth-old infant, already strapped into his car seat, in the first-row bench seat directly
behind the driver’s seat. 

. Upon arriving at the daycare, the defendant
unloaded all of the children except the infant. 

 Although the defendant “understood it
was his responsibility,” he failed to follow several safety protocols to ensure no children
remained in the van. 

. Several of these lapses in protocol led to the infant’s
death from environmental heat exposure, including the defendant’s failure “to look for
[the infant] after unloading the other children from the van—despite having personally
secured him . . . in the first passenger row of the van earlier that morning,” 

;
failure to “double check” to make sure the van was empty, both after dropping the other
children off at the daycare and driving the van back to his home, “unaware [the infant]
was still in the car seat directly behind him,” 

; and failure to make use of
either of two logbooks—one kept inside the van and the other kept inside the daycare—
that the defendant’s employer trained him to use “to help him keep track of [and confirm]
the children he . . . dropped off at the daycare,” with the defendant choosing instead “to
rely solely on his memory,” 

.
{31} On these facts, the Court of Appeals of Virginia affirmed the defendant’s
conviction for involuntary manslaughter and felony child neglect, the latter crime
characterized as a criminal negligence offense that applied a “reckless disregard
standard.” 

 (internal quotation marks and citation omitted). The following
substantial portions of the Whitfield Court’s supporting analysis ring true here.

       In cases involving children, [the] reckless disregard standard can be
       shown by conduct that subjects a child to a substantial risk of serious
       injury, as well as to a risk of death, because exposure to either type of risk
       can endanger the child’s life. It is not only the nature of the act or omission
       that matters. The vulnerability of the victim plays an equally important role
       in the culpability calculus. A course of conduct that satisfies the ordinary
       care standard when directed toward an adult might be gross, and even
       criminal, negligence toward children of tender years. It necessarily follows
       that greater precaution must be taken when a course of conduct puts a
       young child at risk of harm.

       When determining a defendant’s culpability, we apply an objective
       standard . . . [, under which the prosecution] need not prove that an
       accused actually knew or intended that [his] conduct would likely cause
       injury or death, but rather that the accused [was on notice that his] acts
       created a substantial risk of harm. . . . .

       Governed by these principles, we hold [the defendant’s] actions cannot be
       dismissed as simply a momentary, inadvertent act of ordinary negligence[,
       having instead] displayed an inexcusable pattern of reckless [behavior].

 (third alteration in original) (footnote, internal quotation marks, and citations omitted).
We note that like the statute in Whitfield, our child abuse statute sets forth a criminal
negligence offense that requires a “reckless disregard.” See § 30-6-1(A)(3) (defining
“negligently” to include acting with “reckless disregard”); see also Consaul, 2014-
NMSC-030, ¶¶ 40, 43 (holding that the crime of negligent child abuse requires a
showing of “reckless disregard”).

{32} Courts in other jurisdictions have reached similar conclusions as the Whitfield
Court on like reasoning. See, e.g., State v. Morton, 

 (Ohio Ct.
App. 2000) (affirming the child-endangering conviction of a foster mother who left a
three-week-old infant in a closed van parked at a shopping center on a hot day for thirty
to forty minutes, having mistakenly assumed that the other adult—or one of seven older
children—in the vehicle had taken the infant into the store, and without “check[ing] the
van herself to ensure that all of the children were properly supervised”); State v. Every,
No. W2005-00547-CCA-R3-CD (Tenn. Crim. App. June 28, 2007) (unpublished)
(upholding the reckless endangerment conviction of the assistant director of a daycare
facility whose “admitted” failure “to personally inspect” the interior of a daycare van for
the presence of children despite a directive to do so constituted “a conscious disregard
of a substantial risk which resulted in the [two-year-old] victim’s abandonment and
ultimate death”).

{33} The appeal now before us has much in common with the preceding cases. Like
the defendants in Whitfield and Every, Defendants here admit that they failed to
undertake known and reliable safety precautions—conducting a headcount or a
complete visual inspection of Sandi’s SUV upon the children’s return to the daycare—in
a situation admittedly known to be of high risk. Likewise, each of our Defendants, like
the defendant in Morton, baselessly assumed that the other had removed the imperiled
children from the vehicle.

{34} Given these objective indicia of culpability, while Defendants were not
subjectively aware that they left the Victims stranded inside the vehicle, Defendants
were well aware of the significant danger to life and safety created by leaving children in
a closed vehicle on a hot day. Additionally, Defendants failed, without explanation or
justification, to take routine and familiar precautionary measures to ensure that they
avoided such a dangerous occurrence. Under the jury instructions given, a reasonable
jury could find that Defendants’ inactions showed a reckless disregard for a substantial
and unjustifiable risk of serious harm to the safety or health of the Victims. The evidence
thus was sufficient to permit retrial without violating Defendants’ right to be free from
double jeopardy.

III.   CONCLUSION

{35} Based on the significant risk of jury confusion and misdirection created by the
use of the ambiguous term and/or in identifying Defendants’ underlying course of
conduct in the jury instructions as framed, we reverse Defendants’ reckless child abuse
convictions and remand for a new trial consistent with this opinion.

{36}   IT IS SO ORDERED.

MICHAEL E. VIGIL, Justice

WE CONCUR:

C. SHANNON BACON, Chief Justice

DAVID K. THOMSON, Justice

RODERICK T. KENNEDY, Judge, retired
Sitting by designation

JAMES T. MARTIN, Judge
Sitting by designation, dissenting

Martin, Judge (dissenting).
{37} I am unable to agree with the majority’s conclusion that Defendants’ convictions
must be reversed because of a flawed essential elements instruction the jury received in
this case. Taken as a whole, the instruction at issue correctly sets forth the law
applicable to Defendants’ underlying course of conduct, which in turn supports the jury’s
unanimous guilty verdicts. While the language of the instruction at issue may to some
degree suffer, as the majority concludes, insofar as there is indeed a difference in
meaning between the words “and” and “or,” I cannot agree that use of both terms
alternatively “would have confused or misdirected a reasonable juror.” Maj. op. ¶ 8. A
reasonable juror can understand that the “and/or” structure of the elements instruction
simply provided alternative ways for the jury to unanimously agree on any event or
events that resulted in the failure of Defendants to remove the Victims from the vehicle
that exposed them to fatally high temperatures. And, as highlighted by the Court of
Appeals now being reversed, Defendants flag nothing in the record that suggests the
jury was confused as to the course of conduct alleged to be reckless child abuse or
whether that conduct met the requirements for conviction. See State v. Gardner, 2003-
NMCA-107, ¶ 30, 

, 

 (concluding that there was no error in a
tendered elements instruction when the defendant pointed to nothing “in the record
suggesting that the verdicts were not unanimous”). Accordingly, I respectfully dissent.

I.      DISCUSSION

{38} To begin, the majority primarily cites secondary sources, i.e., law reviews, to
support their condemnation of the use of the term “and/or” in the district court’s jury
instructions. 3 However, in one of the law reviews cited, “AND/OR” and the Proper Use
               2F




of Legal Language, 

 (2018), the author, Ira P. Robbins,
acknowledges,

                While grammarians, scholars, and judges typically despise and/or,
        the problems associated with it are often wrongly attributed to the term
        itself. Many criticisms that and/or is imprecise or ambiguous ignore that
        the term has a definite meaning: it is “a formula denoting the items joined
        by it can be taken either together or as alternatives”⸻i.e., “A or B, or
        both.” Critics urge those wanting to use and/or to simply write out its
        meaning for the sake of clarity. Given the term’s definite meaning,

3The majority also cites three out-of-state cases in support of the rejection of the use of the term “and/or.”
However, those cases are readily distinguishable from the facts and jury instructions at issue in this
appeal. In Garzon v. State, 

 (Fla. 2008), the jury instructions at issue placed the “and/or”
conjunction as between two codefendants’ criminal liability. Furthermore, dicta from that case lists a long
string of Florida cases in which “and/or” was criticized but did not constitute reversible error. In State v.
Gonzalez, 

 (N.J. Super. Ct. App. Div. 2016), the “and/or” connector was used repeatedly
throughout the trial court’s jury instructions to connect both codefendants’ criminal liability as well as to
connect two different crimes (robbery and/or assault). Finally, in Commonwealth v. Johnson, 

 (Mass. App. Ct. 1998), the appellate court’s opinion was neither supportive nor critical of the “and/or”
connector but rather reversed the conviction because one of the factual alternatives was outside of the
proscribed criminal conduct prohibited by the domestic violence restraining order. In that case, the parties
to the domestic violence restraining order had stipulated to some contact but only prohibited “threatening”
communications. However, the trial court instructed the jury that it could convict the Defendant for
threatening the victim “and/or” by contacting her.
        however, proper use of and/or creates neither ambiguity nor confusion. Of
        course, and/or critics seem to overlook that any term can be ambiguous
        when used incorrectly. In short, the term’s potential for confusion has been
        severely overstated⸻drafters should seek to incorporate it where
        appropriate.

 (citations omitted). As discussed hereinafter, the term “and/or” was used
correctly in this matter and thus did not contribute to jury confusion or misdirection. 4                3F




{39} I further take issue with the majority’s determination, see maj. op. ¶ 21, that the
Court of Appeals inappropriately relied upon State v. Godoy, 

, 

. First, the majority maintains Godoy addressed only whether there was
fundamental error in the instructions given in that case because the issue argued was
not preserved, whereas here the issue was preserved. Such does not, in my view,
eliminate the usability of Godoy. Rather, as this Court stated in State v. Benally, 2001-
NMSC-033, 

, 

,

               The standard of review we apply to jury instructions depends on
        whether the issue has been preserved. If the error has been preserved we
        review the instructions for reversible error. If not, we review for
        fundamental error. Under both standards we seek to determine “whether a
        reasonable juror would have been confused or misdirected by the jury
        instruction.”

Id. ¶ 12 (citations omitted). Thus, whether the standard of review is for fundamental or
reversible error, we must answer “whether a reasonable juror would have been
confused or misdirected by [a] jury instruction.” Second, in determining Godoy to be
inapplicable here, the majority concludes that one or some of the alternatives on which
the jury herein was given permitted it to return a guilty verdict that was legally
inadequate. See maj. op. ¶ 21. It is this issue that goes to the heart of whether reversal
is warranted, and on which my disagreement with the majority rests.

{40} Here, the majority construes the jury instruction to have permitted the jury to
“return guilty verdicts solely based on one or more of Defendants’ alleged CYFD
violations,” including “failing to obtain agency permission to transport the children to and
from a nearby park. This technical violation of the agency’s policies could not support a
stand-alone finding that Defendants placed the Victims in any ‘direct line of danger.’”
Maj. op. ¶ 20 (citation omitted). My view, however, is that but for these actions by
Defendants, the children would never have been in the “‘direct line of danger,’” maj. op.
¶ 20 (citation omitted), as revealed by the evidence at trial. The record amply supports


4I note as well that the majority supplements its underestimation of the jury’s capacity to understand the
same instruction by criticizing use of the word “including” within it. In this regard, the majority states that
“[w]ithout addressing this unraised issue head-on, we simply acknowledge there are additional concerns
presented by the use of the word including alongside the already ambiguous term and/or in the conduct
element of the jury instructions in this case.” Maj. op. ¶ 12 n.1. Such was neither raised by Defendants
nor, in my view, should factor into today’s decision.
that Defendants failed to follow the proper rules and procedures mandated by the
Children, Youth & Families Department (CYFD) in caring for the Victims, by each of the
following alleged actions: (1) failing to do headcounts to ensure that all children in
Defendants’ care were present and accounted for when changing locations; (2) driving
the Victims to the park on the day in question without CYFD permission leading to the
eventual result of the Victims being left in the vehicle; (3) failing to have a proper care
giver to child ratio to ensure proper attention and care was given to the children. These
actions led to the tragic events of the day and to Defendants’ failure to remove the
children from the vehicle, thus exposing the Victims to the unsafe temperatures for an
extended period of time. These actions are the “‘direct line of danger,’” maj. op. ¶ 20
(citation omitted), which supports the convictions. Each of these failures and the
ensuing calamity are all clearly established by evidence presented by the State in the
trial record. Unlike the majority, I believe that a review of each of these factors is
necessary in this analysis and that such a review demonstrates that all of these
“conviction choices,” maj. op ¶ 20, placed the children in the “‘direct line of danger,’”
maj. op. ¶ 20 (citation omitted), resulting in the serious bodily injury of one of the Victims
and the tragic death of the other. In focusing on what it perceives to be a technical
violation of CYFD policy, the majority overlooks how all of these factors demonstrate
reckless disregard for the safety and health of the Victims. The majority itself
acknowledges that “[u]nder the jury instructions given, a reasonable jury could find that
Defendants’ inactions showed a reckless disregard for a substantial and unjustifiable
risk of serious harm to the safety or health of the Victims.” Maj. op. ¶ 34.

{41} The majority also cites Benally, which states that “juror confusion or misdirection
may stem not only from instructions that are facially contradictory or ambiguous, but
from instructions which, through omission or misstatement, fail to provide the juror with
an accurate rendition of the relevant law.” Benally, 

. As the Court
of Appeals concluded in this matter, the district court was required to and did instruct
the jury regarding the conduct or course of conduct alleged to be child abuse. The Court
of Appeals acknowledged that the district court instructed the jury on both UJI 14-622
NMRA, entitled Child Abuse Resulting in Death; Reckless Disregard; Child Under 12;
Essential Elements, and UJI 14-615 NMRA, entitled Child Abuse Resulting in Great
Bodily Harm; Essential Elements. See State v. Taylor, 

, 

. As the Court of Appeals held, in accordance with UJI 14-622, the district court
properly instructed the jury on the elements necessary to find Defendants guilty of
reckless child abuse. Taylor, 

. Specifically, the district court
instructed the jury that it must find Defendants recklessly disregarded a “substantial and
unjustifiable risk of serious harm” by failing to follow CYFD procedures in caring for the
Victims and/or failing to remove the Victims from the vehicle. In so doing, the district
court instructed the jury on two theories, specifically, failing to comply with CYFD
requirements and/or failing to remove the Victims from their car seats.

{42} It is clear from the record that substantial evidence supported Defendants’
convictions for reckless child abuse, and there was substantial evidence supporting
both theories. As outlined by the Court of Appeals and presented at trial, the State
showed that Defendants disregarded CYFD safety policies designed to prevent harm to
children and in which Defendants had been trained. See id. ¶ 13. As noted by the Court
of Appeals, Defendants were aware that they needed permission from CYFD to drive
the children in their personal vehicles and did not have permission to do so. See id.
Moreover, the Court of Appeals also asserted that the record demonstrates that
Defendants were trained on CYFD policies requiring caregivers to perform headcounts
to account for all children under their supervision when moving from one location to
another and that Defendants failed to do so. See id. Additionally, as the Court of
Appeals states, the State demonstrated at trial that Defendants failed to follow CYFD
policies on the day in question despite having been reprimanded for violating CYFD
policies in the past. See id. ¶ 14. These failures to comply with CYFD policy amounted
to reckless disregard for the safety and health of the Victims. As the Court of Appeals
also stated, the State’s theory at trial was that Defendants’ conduct on July 25, 2017,
demonstrated a reckless disregard for the safety and health of the Victims, which
resulted in death and severe injuries. See id. ¶ 4. The Court of Appeals noted as well
that to demonstrate the harm allegedly caused by Defendants’ conduct, the State
presented testimony from CYFD and compliance reports showing Defendants were in
violation of numerous CYFD safety policies on the day in question. See id.

{43} “[A] conviction under a general verdict must be reversed when it is based on
more than one legal theory and at least one of those theories is legally, as opposed to
factually, invalid.” State v. Mailman, 

, 

, 

. This Court emphasized in Montoya, 

, 

, that
“the overriding concern . . . is that the jury’s verdict must be clear about the crime of
which the defendant was convicted.” See also Rule 5-611(A) NMRA (“The verdict shall
be unanimous and signed by the foreman.”). “The [judicial] rules and [uniform jury]
instructions either refer generally to a requirement of jury unanimity or require only that
the jury agree on a verdict.” See State v. Salazar, 

, 

,

 (discussing whether unanimity is required on two underlying theories of
first-degree murder).

{44} Thus, the State in this case advanced many different factual theories of guilt to
support the legal theory of reckless child abuse. The first element of the jury instructions
allowed the jurors to rely on different acts or combinations of actions to conclude that
Defendants engaged in two theories of reckless child abuse proposed by the State in
the second element: endangering the children or exposing them to the inclemency of
the weather. The second element of the jury instruction states, “By engaging in the
conduct described in [the first element], [Defendants] caused or permitted [the Victims]
to be placed in a situation that endangered the life or health of [the Victims] or to be
exposed to inclement weather.”

{45} A review of the jury instructions demonstrates that they were sufficiently clear
regarding the theories advanced by the State despite the “and/or” inclusion. The jurors
did not need to be unanimous regarding the factual basis of Defendants’ charges but
did need to agree on the legal theory of recklessness. As demonstrated by the record in
this case, the jurors did agree, and the convictions were unanimous. Despite the
majority’s artificial limitations on Godoy’s holding, my view is that Godoy is instructive in
this matter, and I agree with the Court of Appeals in its decision to cite Godoy, which
states, “[W]here alternative theories of guilt are put forth under a single charge, jury
unanimity is required only as to the verdict, not to any particular theory of guilt.” Godoy,

. “[A] jury’s general verdict will not be disturbed in such a case
where substantial evidence exists in the record supporting at least one of the theories of
the crime presented to the jury.” 

 (internal quotation marks and citation omitted). As
the Court of Appeals further observed, Godoy states that “[w]e have never suggested
that in returning general verdicts in such cases the jurors should be required to agree
upon a single means of commission, because different jurors may be persuaded by
different pieces of evidence, even when they agree upon the bottom line.” Id. ¶ 7
(alteration in original) (internal quotation marks and citation omitted). Therefore, under
established law there is no basis on which to declare that the jury instructions, as
written, constitute reversible error.

{46} As this Court held in State v. Parish, 

, ¶ 4, 

, 

,

              A jury instruction standing by itself may appear defective. However,
       when considered in the context of the other instructions given to the jury it
       may “fairly and accurately state the applicable law.” From the early case
       State v. Crosby, [

, ]

, 

 (1920), we
       can glean two principles to guide our determination of whether the
       defective jury instructions gave rise to reversible error: (1) “an erroneous
       instruction cannot be cured by a subsequent correct one,” and (2)
       “instructions must be considered as a whole, and not singly.” These
       principles address three situations: erroneous instructions, vague
       instructions, and contradictory instructions. . . . As Crosby states, if an
       instruction is facially erroneous, it presents an incurable problem and
       mandates reversal. On the other hand, if a jury instruction is capable of
       more than one interpretation, then the court must next evaluate whether
       another part of the jury instructions satisfactorily cures the ambiguity.
       Finally, if the jury is given two contradictory instructions, each of which is
       complete and unambiguous, reversible error occurs because it is
       impossible to tell if the error is cured by the correct instruction;
       furthermore, there is no way to determine whether the jury followed the
       correct or incorrect instruction. The standard against which the court
       makes its determination is that of the reasonable juror. . . . Reversible
       error arises if, under the principles just described, a reasonable juror
       would have been confused or misdirected.

Parish, 

, ¶ 4 (citations omitted). In State v. Trossman, 2009-NMSC-
034, ¶ 8, 

, 

, this Court emphasized that “[w]hatever the case,
the ultimate concern of the reviewing court must be whether ‘a reasonable juror would
have been confused or misdirected.’” 

 (citation omitted). “Juror confusion or
misdirection may stem from instructions which, through omission or misstatement, fail to
provide the juror with an accurate rendition of the relevant law.” State v. Luna, 2018-
NMCA-025, ¶ 19, 

 (internal quotation marks and citation omitted). Overall,
the jury instructions were sufficiently clear regarding the theories advanced by the State
despite the “and/or” inclusion. In addition, the jury instructions accurately instructed the
jury on the applicable law. See Montoya, 

 (quoting State v.
Cabezuela, 

, 

, 

 (“[Jury instructions] are
to be read and considered as a whole and when so considered they are proper if they
fairly and accurately state the applicable law.” (alteration in original))). The jurors did not
need to be unanimous regarding the factual basis of Defendants’ charges but did need
to agree on the legal theory of recklessness. As demonstrated by the record in this
case, the jurors did agree, and the convictions were unanimous.

II.    CONCLUSION

{47} Like the Court of Appeals, I too believe that the province of the jury should not be
invaded, nor should jurors’ capacity to understand instructions given them be
underestimated, particularly given the jury unanimously agreed upon a verdict. See
State v. Sutphin, 

, ¶ 21, 

, 

 (“This court
does not weigh the evidence and may not substitute its judgment for that of the fact
finder so long as there is sufficient evidence to support the verdict.”) As this Court held
in Morga v. FedEx Ground Package System, Inc., 

, 

,
“Taking the respective roles of the judge and jury into consideration, this Court will not
disturb a jury’s verdict except ‘in extreme cases.’” Id. ¶ 19 (citation omitted).

{48} The district court did not err by tendering the elements instruction to the jury.
Defendants have failed to point to any portion of the record to support the majority’s
position that there was a “significant risk of jury confusion and misdirection” created by
the use of the term and/or in identifying Defendants’ underlying course of conduct in the
jury instructions as framed, which would require a reversal of Defendants’ reckless child
abuse convictions and necessitate a new trial. Maj. op. ¶ 35. Accordingly, with respect, I
am compelled to dissent.

James T. Martin, Judge
Sitting by designation