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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO Opinion Number: 2009-NMSC-035 Filing Date: June 23, 2009 Docket No. 31,202 STATE OF NEW MEXICO, Plaintiff-Respondent, v. JULIO CHAVEZ, Defendant-Petitioner. ORIGINAL PROCEEDING ON CERTIORARI James Waylon Counts, District Judge Hugh W. Dangler, Chief Public Defender William A. O'Connell, Assistant Appellate Defender Santa Fe, NM for Petitioner Gary K. King, Attorney General Anita Carlson, Assistant Attorney General Santa Fe, NM for Respondent OPINION BOSSON, Justice. {1} When Defendant Julio Chavez woke up on the morning of October 2, 2003, he discovered that his infant daughter, Shelby, was not breathing. Despite repeated efforts, she could not be revived. A police investigation into her death revealed that Shelby had been placed to sleep in a dresser drawer filled with blankets and padding because her bassinet had broken a day or two earlier. In addition, police inspected Defendant's home and discovered impoverished and dirty living conditions that, in the State's opinion, posed a significant danger to Shelby and her two young brothers, Juan and Leo. As a result, Defendant was 1

charged with two counts of child abuse by endangerment with respect to the two boys based on the living conditions in his home. Defendant was charged with one count of child abuse resulting in death in regard to Shelby, as well as a lesser included charge of child endangerment for Shelby. The jury did not find Defendant guilty of child abuse resulting in death but did find Defendant guilty of all three endangerment charges. {2} In this appeal, we first explore the sufficiency and nature of the evidence necessary to sustain a child endangerment conviction when it is based only on filthy living conditions and without any underlying criminal conduct. This is not the first time we have confronted this question. We refer to our recent holding in State v. Jensen, 2006-NMSC-045,

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New Mexico Law