SANTA FE, N.M. (AP) — The state Court of Appeals has overturned the felony child abuse conviction of a Curry County woman whose 3-year-old son was found wandering outside her [auth] apartment at 2 a.m. wearing only a dirty diaper.
The court said in a split decision on Monday that there wasn’t enough evidence to support Samantha Garcia’s conviction of negligent child abuse by endangerment.
Garcia had been sentenced to three years in prison, but a district court judge suspended the jail time and placed her on supervised probation.
The attorney general’s office hasn’t decided whether to ask the state Supreme Court to review the decision, according to a spokesman.
A neighbor found the crying boy in May 2010 in an apartment parking lot. The neighbor returned the child to the apartment and the door was ajar. The mother was asleep inside her apartment, where Clovis police discovered a marijuana pipe, a partially burned marijuana cigarette along with empty beer cans, vodka bottles, vomit on the floor and a knife in the bedroom. A man, who was not the child’s father, was lying on the bedroom floor, face down in a dirty diaper, according to the court ruling.
The neighbor had called police and tried to awaken Garcia, who opened and closed her eyes and said, “It’s OK.”
The court’s majority said prosecutors failed to show that Garcia’s intoxication put the child in a situation that endangered the boy and that she should have known of the danger but disregarded the risk.
“It is both imprudent and generally negligent to use drugs and alcohol while being responsible for a child,” wrote Judge Timothy Garcia. “But we refuse to hold that a defendant who gets intoxicated and falls asleep in the same apartment as her child, with nothing more, is criminally negligent.”
Judge Jonathan Sutin said in a concurring opinion, “Even were one to assume defendant fell asleep without first locking the door in a failsafe manner to prevent child from leaving, to uphold defendant’s conviction in this case is to set a very worrisome, if not dangerous precedent — one paramount to saying that any parent of a child who becomes intoxicated in his or her own home, or even one who takes sleep-inducing drugs such as sleeping pills, muscle relaxants, or cold medication and then falls into a heavy or deep sleep forgetting to first secure all doors outside, is chargeable for a third degree felony should his or her child go outside with exposure to possible harm.”
Judge Michael Vigil said in a dissenting opinion that there was enough evidence to support Garcia’s conviction, but he would have reversed it and ordered a new trial because the judge was wrong in not allowing the jury to consider whether Garcia committed felony child abuse or a misdemeanor of abandonment of a child.