OPINION
BOSSON, Chief Justice.
{1} After a jury trial, Defendant Scott Reed was convicted of first-degree depraved mind murder, in violation of NMSA 1978, Section 30 — 2—1(A)(3) (1994), and sentenced to life in prison. In addition to two other charges not relevant to this appeal, Defendant was also convicted of negligent child abuse resulting in death contrary to NMSA 1978, Section 30-6-1 (2001, prior to 2004 amendment). Finding insufficient evidence, we reverse the conviction for first-degree depraved mind murder, but we affirm the conviction for child abuse resulting in death. Accordingly, we remand to the district court to vacate the conviction for depraved mind murder and adjust Defendant’s sentence accordingly.
BACKGROUND
{2} By all accounts, Defendant, who was 18 years old at the time, was good friends with David O’Brien, who was four years younger. Even though David’s parents did not approve of Defendant or his 16-year-old brother, Jeff, David continued to spend time with them.
{3} On the morning of December 24, 2001, David went shopping with the two Reed brothers and their mother. After returning to the Reed residence, Jeff went to his bedroom to take a nap, while Defendant and David drove to the video store. Around 1 p.m., David called his mother and asked her not to come home because he was studying. She testified that she thought David was home when he called. When the two friends returned to the Reed residence, Defendant’s parents were gone. Besides the three teenagers, the only other person home at the time was Defendant’s grandmother, who was in a far corner bedroom. Suffering from dementia, the grandmother was unaware of the events that followed.
{4} Defendant testified that when he realized that his parents were not home, he retrieved a .38-ealiber revolver from the trunk of his car and brought it into the house. He had purchased the revolver a couple of weeks earlier from a friend, but kept it hidden from his parents because guns were forbidden in the Reed residence. Defendant said that even though David knew he should be returning home, he decided to stay to watch a video in the living room. After the movie started, Defendant placed the unloaded revolver on the coffee table in front of the sofa.
{5} Jeff testified that he saw the gun on the coffee table when he joined David and his brother to watch the movie. Defendant was sitting in the middle of the sofa, with David sitting to his right in a recliner. Jeff lay down on the love seat to Defendant’s left. Defendant testified that while watching the video he began playing with the unloaded revolver. He told the jury he pulled the trigger once and the hammer once. Jeff testified that he saw Defendant click the hammer back and let it go once or twice and heard the revolver click once or twice. Then he did not hear any clicking for a few minutes.
{6} According to Defendant, David got up to go into the kitchen for a snack. Meanwhile, Defendant removed a single bullet from his pocket and placed it in the revolver. Defendant testified that he looked down the barrel of the gun to make sure the bullet was not in the chamber. Viewed from the back of the gun, the bullet was immediately to the right of the top cylinder in line with the firing pin, at a one o’clock position. Defendant told the jury he thought the gun was safe, and would not fire. He pointed the gun off to his side and pulled the trigger once. Defendant testified that he only meant to click the gun, and did not think it could fire. He claimed that because he was watching the television, he was not looking in the direction the gun was pointed, and did not know David had returned to the room. The gun discharged. As it turned out, the bullet had been placed in the exact position from which it would rotate into a firing position upon pulling the trigger. According to the autopsy, the bullet passed at a slight upward trajectory underneath David’s left arm and struck him in the left side of his chest just below his nipple. It traveled through his body and lodged beneath his right arm without exiting.
{7} Jeff testified that he did not see Defendant shoot David, but was surprised when he heard the gunshot and covered himself with his arms. When Jeff looked up, he saw David crouching by the reeliner before falling to the floor. Defendant testified that he was shocked that the gun went off, and that he panicked when he realized David had been shot. Defendant said he and Jeff tried to help David, and immediately called 911. Both spoke to the operator, but lied about what happened. Jeff claimed David was the victim of a drive-by shooting. Defendant said, “Somebody shot my friend.” After hearing sirens, Defendant fled to his older brother’s house with the gun. Crying and distraught, Defendant told his brother he accidentally shot David. Defendant then drove around trying to figure out what to do. He called his father on David’s cell phone, which was in his jacket pocket, and told him the shooting was an accident. He also spoke on the phone with a police detective and admitted shooting David, but said it was an accident. Defendant drove to Springer, then returned to Albuquerque to go to the police. Even after the police told Jeff that Defendant had admitted shooting David, Jeff was hostile and continued to lie about the drive-by shooting. Meanwhile, David died from the gunshot wound.
{8} The State charged Defendant with an open count of murder. A jury trial began in October 2002. According to the State’s main theory at trial, Defendant intentionally shot David after some sort of struggle. The State introduced evidence that David was shot one time in the chest, but that the shirt David was wearing had three holes at the back shoulder that did not line up with where the bullet entered his body. The State’s attorney speculated that the shirt was bunched up because someone was holding David against his will. The State also pointed out that the reeliner in which David had been sitting was found on its side in front of the television about ten feet from its original position, as if thrown in a fight.
{9} To contradict Defendant’s claim that the shooting was an accident, the State introduced evidence to indicate Defendant was familiar with the revolver, and with guns in general. According to Defendant’s own testimony, he had tested the revolver a couple of days earlier at a shooting range. Despite Defendant’s claim that the revolver was sticking, and would not fire when a bullet was in the top chamber, the gun did discharge a couple of times. The State’s tests revealed the revolver was working properly. Detective Zamora, the lead investigator, testified that the trigger on the revolver required a lot of pressure, making it difficult to pull unintentionally. In addition, Defendant’s mother told police officers after the shooting that her sons liked guns. Cartridges from two different caliber weapons, not matching the revolver, were found in Jeffs bedroom.
{10} Much of the State’s evidence, presented to support its theory of an intentional shooting, was ambiguous. Tests conducted on David’s shirt indicated the shooting took place from four to ten feet away, and not at close range. Thus, if the shirt was bunched up, it was not from Defendant grabbing it. Detective Zamora testified that rescue personnel may have moved the reeliner in order to attend to David. Testimony by the State’s own witnesses tended to support Defendant’s claim that he did not intend to shoot David. A detective testified that a lay person is easily confused about the direction a particular revolver rotates. The detective said he had investigated a lot of accidental shootings in which individuals mistakenly believed a revolver would not fire unless a cartridge was in the top position. On cross-examination, Detective Zamora said that he did not believe Defendant meant to shoot David, and that he had no evidence that the shooting was a willful and deliberate murder. He did testify, however, that he believed Defendant pointed the gun at David.
{11} At the close of the State’s ease, defense counsel asked for a directed verdict dismissing the first-degree murder charge because there was no evidence of deliberation. The State countered that it was for the jury to decide if the shooting was accidental. Then the State turned to the alternative theory of first-degree depraved mind murder.1 The State argued that depraved mind murder was clear because loading a firearm and pointing it inside a room where others are present is an act greatly dangerous to the lives of others indicating a depraved mind without regard for others. The prosecutor said common sense dictates that even an eighteen-year-old should know how greatly dangerous it was to load a gun, click it, and point it in the house. The district court refused to direct a verdict on the first-degree murder charge. In closing remarks to the jury, the prosecutor argued “that whenever you add an idiot and a loaded firearm, what you have is depraved mind murder.”
{12} The jury convicted Defendant on all counts, including first-degree murder and negligent child abuse resulting in death. The jury was told to consider both alternative theories of first-degree murder, but only returned a guilty verdict on depraved mind murder. Defendant was sentenced to life in prison.
DISCUSSION
{13} On appeal, Defendant challenges his conviction for depraved mind murder based on insufficient evidence and fundamental error in the jury instructions. In addition, Defendant challenges his conviction for negligent child abuse resulting in death, arguing that the Legislature only intended the crime to apply to persons in a position of authority over a child, and not to a child’s friend. He argues in the alternative that the jury instructions for child abuse caused fundamental error. Finally, Defendant contends, and the State concedes, that if we affirm his first-degree depraved mind murder conviction, his conviction for child abuse would constitute double jeopardy and must be vacated.
Sufficiency of the Evidence
{14} We first address Defendant’s claim that there was insufficient evidence to support his conviction for depraved mind murder. Under a sufficiency of evidence analysis, we must determine “whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction.” State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). We must view the evidence in the light most favorable to the State, resolving all conflicts and indulging all permissible inferences in favor of the verdict. Id. It is this Court’s duty on review to determine whether any rational jury could have found the essential facts to establish each element of the crime beyond a reasonable doubt. State v. Garcia, 114 N.M. 269, 274, 837 P.2d 862, 867 (1992).
Elements of Depraved Mind Murder
{15} In New Mexico, first-degree murder is defined in three ways: (1) as a “willful, deliberate and premeditated killing”; (2) as a death caused “in the commission of or attempt to commit any felony”; and (3) as depraved mind murder. Section 30-2-l(A). Defendant was charged with an open count of murder and indicted for deliberate murder. The court submitted jury instructions on deliberate murder, and in the alternative, depraved mind murder. The court also submitted second-degree murder and involuntary manslaughter instructions as lesser included offenses. The jury did not convict Defendant of deliberate murder, but found him guilty of depraved mind murder. We focus, therefore, on whether the evidence is sufficient to establish that conviction.
{16} New Mexico is one of only a handful of states to classify depraved mind murder as first-degree murder. 2 Wayne R. LaFave, Substantive Criminal Law § 14.7, at 486 & n. 71 (2d ed.2003).2 First-degree murder is a capital felony, punished by life imprisonment or death, our most severe criminal penalty. See NMSA 1978, § 31-18-14(A) (1993). In contrast, second-degree murder carries a basic sentence of fifteen years imprisonment, and involuntary manslaughter only eighteen months. See NMSA 1978, § 31-18-15(A)(2) to (6) (2003). In this case, Defendant was sentenced to life imprisonment.
{17} Given the extreme differences in punishment, this Court has previously underscored the importance of distinguishing first-degree depraved mind murder from second-degree murder in New Mexico. State v. Brown, 1996-NMSC-073, ¶ 13, 122 N.M. 724, 931 P.2d 69. Not only are clear distinctions necessary for the administration of our criminal justice system, they are vital to an accused facing an open charge of murder. See Garcia, 114 N.M. at 272, 837 P.2d at 865. First-degree murder is reserved for those killings that are the most heinous, and which deserve the most serious punishment, as opposed to those which, intentional or not, “lack the gravity associated with first degree murders.” Id.
{18} Despite the importance of construing the first-degree murder statute to punish only the most reprehensible homicides, our courts continue to struggle with making clear distinctions concerning depraved mind murder. See Brown, 122 N.M. at 734, 931 P.2d at 79 (Minzner, J., dissenting) (observing that this Court has produced “the thinnest of distinctions between depraved-mind murder and second-degree murder”); cf. Garcia, 114 N.M. at 272, 837 P.2d at 865 (acknowledging that the appellate courts “have not been especially helpful in distinguishing first degree murder from second degree murder”). See generally Leo M. Romero, Unintentional Homicides Caused by Risk-Creating Conduct: Problems in Distinguishing Between Depraved Mind Murder, Second Degree Murder, Involuntary Manslaughter, and Noncriminal Homicide in New Mexico, 20 N.M. L.Rev. 55, 60 (1990) (stating that our courts and jury instructions have not been particularly helpful in clarifying the distinctions between different degrees of unintentional homicide).
{19} A comparison of the jury instructions in Defendant’s case illustrates those “thinnest of distinctions” between depraved mind murder and second-degree murder. To convict Defendant of depraved mind murder, the State was required to show, either through direct or circumstantial evidence, that Defendant killed David without justification or excuse “by any act greatly dangerous to the lives of others, indicating a depraved mind regardless of human life.” See § 30-2-1(A)(3). The statute itself does not define the mens rea, or state of mind, required for depraved mind murder. See § 30-2-l(A). However, the jury instruction for depraved mind murder required the jury to find:
1. The defendant shot and killed David O’Brien;
2. The defendant’s act caused the death of David O’Brien;
3. The act of the defendant was greatly dangerous to the lives of others, indicating a depraved mind without regard for human life;
4. The defendant knew that defendant’s act was greatly dangerous to the lives of others;
5. This happened in New Mexico on or about the 24th day of December 2001.
See UJI 14-203 NMRA 2005 (emphasis added).
{20} In contrast, a person who kills another commits murder in the second degree, “if in performing the acts which cause the death he knows that such acts create a strong probability of death or great bodily harm to that individual or another.” See § 30-2-l(B). The second-degree murder instruction directed the jury to find:
1. The defendant killed David O’Brien;
2. The defendant knew that his acts created a strong probability of death or great bodily harm to David O’Brien or any other human being;
3. This happened in New Mexico on or about the 24th day of December 2001.
See UJI 14-210 NMRA 2005 (emphasis added).
{21} As can readily be seen by comparing the two instructions, the elements describing knowledge and degree of risk are almost indistinguishable. Both require “an intent to kill or an intent to do an act greatly dangerous to the lives of others or with knowledge that the act creates a strong probability of death or great bodily harm.” State v. Ortega, 112 N.M. 554, 565, 817 P.2d 1196, 1207 (1991). The sole difference rests with the requirement in the depraved mind murder instruction that the jury find Defendant’s act indicated a depraved mind without regard for human life, for which the jury receives no further definition or guidance.
{22} The lack of clear-cut distinctions between varying degrees of homicide has been problematic. Section 30-2-l(A)(3) requires “an act greatly dangerous to the lives of others.” Without more specific guidance from the Legislature, one way our courts have distinguished depraved mind murder is by the number of persons exposed to danger by a defendant’s extremely reckless behavior. See Brown, 1996-NMSC-073, ¶ 14 (observing that the number of persons subjected to the risk of death provides a factor in assessing the degree of risk disregarded). In general, our depraved mind murder convictions have been limited to acts that are dangerous to more than one person. See State v. Sena, 99 N.M. 272, 274, 657 P.2d 128, 130 (1983); State v. DeSantos, 89 N.M. 458, 461, 553 P.2d 1265, 1268 (1976); see also UJI 14-203 Committee Commentary. Quintessential examples include shooting into a crowd, placing a bomb in a public place, or similar acts of terrorism. See State v. Johnson, 103 N.M. 364, 368, 707 P.2d 1174, 1178 (Ct.App.1985).
{23} In addition to the number of people endangered, this Court has construed depraved mind murder as requiring proof that the defendant had “subjective knowledge” that his act was greatly dangerous to the lives of others. See State v. McCrary, 100 N.M. 671, 673, 675 P.2d 120, 122 (1984). The requirement of subjective knowledge serves as proof that the accused “acted with ‘a depraved mind’ or ‘wicked or malignant heart’ and with utter disregard for human life.” Brown, 1996-NMSC-073, ¶ 16. Obviously, mere negligence or recklessness will not do.
{24} To further narrow the class of killings eligible for depraved mind murder, this Court has concluded “that the legislature intended the offense of depraved mind murder to encompass an intensified malice or evil intent.” Brown, 1996-NMSC-073, ¶ 15. In describing that intensified malice, we have defined the phrase “depraved mind” used in the statute and uniform jury instructions as “[a] corrupt, perverted, or immoral state of mind constituting the highest grade of malice [that equates] with malice in the commonly understood sense of ill will, hatred, spite or evil intent.” Id. ¶ 16 (internal quotations omitted); cf. Rollin M. Perkins & Ronald N. Boyce, Criminal Law, 60 (3d ed.1982) (suggesting that one way to distinguish depraved mind murder from manslaughter when an underlying act involves extremely reckless conduct is by identifying an element of viciousness — an extreme indifference to the value of human life — in “the intent to do an act in wanton and wilful disregard of the obvious likelihood of causing death”). Depraved mind murder, therefore, requires outrageously reckless conduct performed with a depraved kind of wantonness or total indifference for the value of human life. See State v. Ibn Omar-Muhammad, 102 N.M. 274, 278, 694 P.2d 922, 926 (1985); Johnson, 103 N.M. at 368, 707 P.2d at 1178.
In Light of these Qualifiers the Evidence Does Not Support Conviction for Depraved Mind Murder
{25} We now inquire whether the State produced sufficient evidence to enable a rational juror to find the facts necessary to support Defendant’s conviction for depraved mind murder. Before doing so, we observe that depraved mind murder is not a substitute for deliberate intent murder; it is not a fallback position available whenever the State fails to prove deliberation. See People v. Roe, 74 N.Y.2d 20, 544 N.Y.S.2d 297, 542 N.E.2d 610, 619 (1989) (Bellacosa, J., dissenting) (warning that depraved indifference murder should not provide prosecutors with an unjust double opportunity for a top count murder conviction). A person is guilty of deliberate murder when that person has a specific intent to kill another person that was “arrived at or determined upon as a result of careful thought and the weighing of the consideration for and against the proposed course of action.” UJI 14-201 NMRA 2005. In contrast, a person guilty of depraved mind murder may not intend the specific result of death, but is equally culpable because that person intentionally commits “an act imminently dangerous to others” or does so “with the subjective knowledge that the act creates a very high degree of risk to the lives of others, indicating a depraved mind regardless of human life.” Brown, 1996-NMSC-073, ¶ 25. Rather than subjectively intend to commit murder, the accused must subjectively intend to commit an act that has a great likelihood of resulting in death. Thus, depraved mind murder involves an intentional act without regard for consequences.
{26} The jury did not find Defendant guilty of deliberate murder but found Defendant guilty of depraved mind murder. We may conclude from the verdict that the jury determined Defendant did not act deliberately but rather acted recklessly. To affirm the first-degree murder conviction, we must be assured that the jury understood that depraved mind murder was not a default charge requiring less evidence. Depraved mind murder carries a heavy but different evidentiary burden. The State must prove beyond a reasonable doubt that Defendant knew his act was greatly dangerous to the lives of others, and that Defendant’s act was greatly dangerous to the lives of others indicating a depraved mind without regard for human life. See UJI 14-203.
{27} Defendant argues that he did not have the requisite knowledge for either depraved mind murder or second-degree murder because he did not think the gun would fire when he pulled the trigger. Defendant testified that when he put a bullet in the revolver, he checked to make sure it was not in the firing position. He claims he did not think the gun would fire without a bullet in the top chamber and was absent-mindedly playing with the gun when he pulled the trigger. He further contends that he was not looking in David’s direction, and did not know David or anyone else was in the line of fire. If Defendant’s story is to be believed, he did not know his act was greatly dangerous to the lives of others, and he did not act under circumstances indicating a depraved mind.3
{28} However, the State introduced evidence that Defendant was familiar with firearms in general, and with this one in particular, because he had recently tested it. Even though Defendant claimed that he did not understand the way the gun worked, and that he only thought it could fire with a bullet in the top chamber, at the very least he knew the gun could fire. Thus, in the State’s view, Defendant took an extremely dangerous risk putting a bullet in a revolver, which Defendant thought was misfiring, and pointing that revolver at David and pulling the trigger.
{29} We do not disagree with the State that putting a bullet in a gun and pulling the trigger is extremely, even outrageously, reckless when other people are in the vicinity. If recklessness were all the State had to prove, though, to obtain a conviction for first-degree murder, there would be little principled distinction between depraved mind murder and second-degree murder. See Brown, 1996-NMSC-073, ¶ 14 (observing that the “major distinction between the two degrees of murder is based upon the culpable mental state required by the two offenses”).
{30} In fact, the State argued a theory of depraved mind murder before the jury that was inadequate as a matter of law. At the close of the case, the prosecutor argued that any idiot and a loaded gun was depraved mind murder and that “stupidity is reckless disregard per se.” Thus, the State improperly argued that reckless disregard would be sufficient to prove depraved mind murder. As we have seen, depraved mind murder requires proof beyond a reasonable doubt of additional elements, that Defendant knew his act was greatly dangerous to the lives of others, and that he performed his act under circumstances indicating a depraved mind.
{31} In most depraved mind murder eases, the facts make it obvious that those accused knew their acts were greatly dangerous to the lives of others, and that they consciously disregarded that risk in a way that manifested extreme indifference. See LaFave, supra, § 14.4(b), at 443. Acts of terrorism and drive-by shootings provide clear examples of the type of gravity and depravity required. Planting a bomb in an airport, for example, is murder when death results, even if the intention is only to destroy property. See Perkins & Boyce, supra, at 60.
{32} Unlike these paradigms of depraved mind murder, the circumstances in which Defendant fired a bullet and killed David do not lend themselves to one obvious conclusion, that Defendant knew he was taking a grave risk with respect to everyone in the living room and therefore committed a depraved act. As we have noted, discharging a firearm in an occupied room is certainly reckless behavior. But an unintentional killing that results from such behavior has the potential to be any one of first-degree murder, second-degree murder, or involuntary manslaughter.
{33} In the few New Mexico cases in which we have affirmed depraved mind murder convictions involving the discharge of firearms, the defendant either admitted, or witnesses testified, that the defendant intentionally fired a weapon under circumstances showing an extreme degree of recklessness. See, e.g., State v. Trujillo, 2002-NMSC-005, ¶ 3, 131 N.M. 709, 42 P.3d 814 (shooting several times from a balcony of an apartment building into a crowd, killing a rival gang member); McCrary, 100 N.M. at 672, 675 P.2d at 121 (moving slowly around tractor-trailers parked overnight at a fairground with multiple firearms, shooting twenty-five times into the cabs, and killing a woman in a sleeping compartment); Sena, 99 N.M. at 273, 657 P.2d at 129 (firing four or five times into a crowded bar, killing a bystander). In each instance, there was no question that the defendant acted intentionally in firing the weapon. In each instance, the shooting was prolonged and repetitive. In each instance, therefore, the defendant clearly exhibited the type of extreme recklessness from which a jury could infer the defendant acted with a depraved mind without regard for the lives of others.
{34} In addition, the defendants in these cases acted with a degree of animosity, which gave the jury additional facts to support findings that the defendants’ actions indicated a depraved mind and that the defendants knew that their acts were greatly dangerous to the lives of others. In Trujillo, the killing took place during an argument with rival gang members. 2002-NMSC-005, ¶3, 131 N.M. 709, 42 P.3d 814. In McCrary, the defendant and his friends felt cheated by carnival operators and sought revenge. 100 N.M. at 672, 675 P.2d at 121. In Sena, the defendant tried to shoot the doorman after being maced and thrown out of a bar, but instead hit someone else. 99 N.M. at 273, 657 P.2d at 129. Thus, the jury could determine from the evidence that the defendant in fact knew he was engaging in extremely reckless conduct aimed at human life in general with a depraved kind of wantonness.
{35} In these previous cases, even when a defendant claimed to have been unaware that his outrageous conduct exposed others to the extreme risk of death, substantial evidence existed to contradict that claim. In McCrary, for example, the defendant said that he did not know anyone was in the sleeper compartments of the trucks, and thus he was not subjectively aware that his conduct was greatly dangerous to the lives of others. 100 N.M. at 672, 675 P.2d at 121. He claimed he did not intend to hurt anyone because he only meant to shoot the tires of the truck. However, the evidence gave the jury a strong reason to reject the defendant’s story. Not one single tire was shot, and there were twenty-five bullet holes in the upper parts of the trucks. Id. at 673, 675 P.2d at 122. In addition, testimony indicated that the defendant chose to use firearms instead of slashing the tires for fear of being caught, which indicated he knew that people were in the area. Id. As a result, in McCrary, there was reasonable support in the evidence for the jury to find the defendant knew his act was greatly dangerous to the lives of others.
{36} The case before us stands in contrast. The State contended at trial that Defendant loaded his revolver and intentionally pointed it at David from a distance of a few feet away. Even if we accept that the jury could infer from the evidence that Defendant intentionally pointed his gun at David with the knowledge that the gun could fire, these circumstances without other evidence could only support a charge that Defendant intended to kill David (deliberate intent murder) or intended to commit an act that created a strong probability of death or great bodily harm to David (second-degree murder) but not to others as well. We know that the jury did not find an express intent to kill. But if Defendant’s actions were intentionally directed at David alone, then absent good reason for departing from our previous interpretation of the statute, he cannot be convicted of depraved mind murder. Thus far, we have limited depraved mind murder convictions to acts that are dangerous to more than one person. See DeSantos, 89 N.M. at 461, 553 P.2d at 1268 (holding that killing an individual with a cement block certainly is the work of a depraved mind, but would not be depraved mind murder because our statute “has been limited to reckless acts in disregard of human life in general”). This interpretation seems consistent with the language of the statute and the jury instructions. See § 30~2-l(A)(3) (requiring “any act greatly dangerous to the lives of others”); UJI 14-203 (requiring defendant’s act to be greatly dangerous “to the lives of others” indicating a depraved mind without regard for human life and knowledge that the act was greatly dangerous “to the lives of others”).
{37} We acknowledge, as the dissent points out, that other jurisdictions allow convictions for depraved mind murder when only one individual is put at risk. See 2 LaFave, supra, § 14.4(a), at 440. In some of those jurisdictions, we note, the legislature clearly indicated the statute applies to individuals. See, e.g., Colo.Rev.Stat. Ann. § 18-3-102(1)(d) (requiring defendant to knowingly engage “in conduct which creates a grave risk of death to a person, or persons, other than himself, and thereby causes the death of another”) (emphasis added); Wash. Rev. Code Ann. § 9A.32.030(l)(b) (requiring “conduct which creates a grave risk of death to any person, and thereby causes the death of a person” (emphasis added)). Absent a specific indication from the Legislature, we will not broaden our construction of the statute to expand the crime of depraved mind murder and further blur the lines between first- and second-degree murder.4
{38} The State argues that the presence of Defendant’s brother and grandmother make Defendant’s conduct eligible for depraved mind murder because more than one person was placed in peril. However, if we accept the State’s position that Defendant intentionally pointed the revolver at David, no evidence supports the contention that more than one person was placed in danger. No facts support the inference that Defendant loaded his revolver with more than one bullet or pulled the trigger more than once while the bullet was in the revolver. Neither is there evidence that Defendant pointed the gun around the room with reckless abandon, in a threatening manner, or as part of some game of chance with the occupants of the room. Defendant’s brother was lying 180 degrees from where the gun was pointed. There is no dispute in the evidence on this point. Defendant’s grandmother was in a bedroom on the other side of the house, some distance behind Defendant, and not in the direction the gun was pointed. The evidence is undisputed on this point as well. As a result, Defendant’s conviction lacks the evidence needed to establish extreme indifference to human life in general.
{39} Notably, the circumstances of this case differ from the situation in Sena, in which the defendant’s actions of firing several times into a crowded bar, though directed at one individual, placed everyone in the bar directly in danger. 99 N.M. at 273, 657 P.2d at 129. As previously noted, firing a bullet into a room the defendant knows to be occupied is often cited as an example of depraved mind murder. See LaFave, supra, § 14.4, at 440. But it is not simply the presence of others that elevates a death caused by a firearm to the level of depraved mind murder. In addition to requiring that other people be in the line of fire, Sena is consistent with courts in other jurisdictions that have required particularly egregious facts to sustain convictions, such as repeated and indiscriminate firing of a weapon despite knowing that others are in harm’s way. It is those type of facts that indicate a depraved mind without regard for human life.
{40} For example, in People v. Jematowski, 238 N.Y. 188, 144 N.E. 497 (1924), which LaFave cites, the court affirmed a jury verdict finding the defendant guilty of depraved mind murder for firing several shots into a house at night and killing a woman standing near the window. Beyond showing an extremely reckless act, the evidence showed the defendant was aware of the risk his conduct posed to others, yet callously disregarded that risk. There were lights on in the house, and the victim yelled at defendant to go away. The evidence also demonstrated that the defendant was part of a threatening gang, and bore a vicious animosity toward the victim’s husband, Id.5
{41} As cases like Jematowski indicate, in most convictions for depraved mind murder, the jury can account for the high level of culpability required for first-degree murder by looking at a defendant’s conduct in light of the external facts known to the defendant. If a defendant’s conduct is egregious enough, the jury can infer an element of wantonness and a subjective awareness of a high degree of risk. See Perkins & Boyce, supra, at 60.
{42} Under the right circumstances, a jury might reasonably find that firing a bullet into a room the defendant knows to be occupied would be depraved mind murder. In this case, however, the facts do not speak of these elements. In Defendant’s case, pointing a gun at David without justification and discharging it from four to ten feet away might permit a jury to conclude Defendant committed a “depraved” act; this is virtually a knowing homicide. But without expanding our statutory construction of depraved mind murder, this act directed at David alone can only be deliberate murder or second-degree murder according to Section 30-2-1 (A)(3) and our case law. See DeSantos, 89 N.M. at 461, 553 P.2d at 1268. The State did not present evidence that would allow the jury to conclude that Defendant’s actions indicated a depraved mind with respect to human life in general. If we affirmed a conviction on these facts, then any time a person recklessly mishandles a firearm in the presence of another and shoots someone by accident, the accused can be charged with depraved mind murder.
{43} In a case like this, in which the circumstances alone do not manifest a depraved indifference to human life, there must be some circumstances showing malevolence or indifference other than the doing of a wrongful act. See People v. Goecke, 457 Mich. 442, 579 N.W.2d 868, 885 (1998) (Kelly, J., concurring in part and dissenting in part). A proper understanding of depraved mind as used in our murder statute is that a “conscious endangering of human life springing from such total indifference is a more blameworthy choice than ‘mere recklessness alone which has had an incidental tragic result.’ ” See Bernard E. Gegan, More Cases of Depraved Mind Murder: The Problem of Mens Rea, 64 St. John’s L.Rev. 429, 436 (1990) (quoted authority omitted).
{44} We are not persuaded that the State carried its evidentiary burden beyond a reasonable doubt that Defendant’s conduct rose to the extreme level of depravity reserved for first-degree murder. We hold, therefore, that there is insufficient evidence to support the verdict that Defendant committed an act greatly dangerous to the lives of others, indicating a depraved mind in disregard of human life.
Jury Instructions
{45} Even though it is unnecessary to the disposition of his case, Defendant raises a valid concern with respect to the uniform jury instructions. Defendant argues that “depraved mind” needs to be defined for the jury. The State responds that the term is easily understood, and “clearly indicates a state of mind beyond thoughtlessness or stupidity, a state of mind that encompasses a total disregard of human life.” The opinions of this Court tend to disprove the State’s position. In reviewing depraved mind murder convictions, we constantly provide various detailed definitions of depraved mind. See, e.g., Brown, 1996-NMSC-073, ¶ 16 (defining depraved mind as “‘[a] corrupt, perverted, or immoral state of mind’ constituting ‘the highest grade of malice ... equatable with malice in the commonly understood sense of ill will, hatred, spite or evil intent’ ”) (quoted authority omitted); State v. Remandez, 117 N.M. 497, 499, 873 P.2d 243, 245 (1994) (requiring “a wicked and malignant heart”); Johnson, 103 N.M. at 368, 707 P.2d at 1178 (stating that the act must be performed with a “depraved kind of wantonness”). This Court evokes these definitions for guidance every time we analyze the sufficiency of evidence to sustain a verdict for depraved mind murder. If we find the definitions from our case law so crucial in enabling us to identify the most blameworthy crimes, we cannot quarrel with Defendant’s claim that such standards would be helpful and perhaps indispensable to a lay jury undertaking the same job.
{46} We direct the UJI Criminal Committee to consider whether an instruction can be formulated that helps the jury understand the function of the phrase “depraved mind.” Such consideration should address whether the term requires further definition. Cf. State v. Magby, 1998-NMSC-042, ¶ 22, 126 N.M. 361, 969 P.2d 965 (directing the committee to modify the uniform jury instructions for child abuse resulting in death to include a definition of “reckless disregard” in order to adequately define the requirement of criminal negligence) overruled on other grounds by State v. Mascareñas, 2000-NMSC-017, ¶ 27, 129 N.M. 230, 4 P.3d 1221.6
Child Abuse
{47} Having reversed the conviction for first-degree depraved mind murder, we could remand this case to the district court for a new trial on the lesser included offenses of first-degree murder: second-degree murder and involuntary manslaughter. However, in order to determine whether retrial is legally possible, we must first consider the viability of the child abuse conviction.
Statute Does Not Require a Special Relationship
{48} Defendant contends that our child abuse statute only applies to situations in which an adult, such as a parent or guardian, has a special relationship with a child. Because Defendant and the victim were only friends and contemporaries, Defendant argues that there is insufficient evidence to support his conviction for child abuse.
{49} Defendant is correct that three subsections of the child abuse statute include the specific language of parent, guardian or custodian. See § 30-6-l(A), - 1(B), and -1(C). However, the Legislature does not use those terms in Subsection D, which states that child abuse “consists of a person knowingly, intentionally or negligently, and without justifiable cause, causing or permitting a child to be: (1) placed in a situation that may endanger the child’s life or health.” Section 30-6-l(D) (emphasis added). “[W]hen a statute contains language which is clear and unambiguous, we must give effect to that language and refrain from further statutory interpretation.” State v. Rivera, 2004-NMSC-001, ¶ 10, 134 N.M. 768, 82 P.3d 939 (quoted authority omitted).
{50} The Legislature has not indicated that the statute for negligent child abuse resulting in death is restricted to persons having a special relationship with the child, such as a parent or guardian. See § 30-6-1(D). Our courts have held that the statute applies to any person who causes or permits a child to be placed in a situation that endangers the child’s life. See State v. Lujan, 103 N.M. 667, 667, 669, 712 P.2d 13, 13, 15 (Ct. App.1985) (affirming conviction for child abuse after defendant chased a family in a pickup truck while his friends threw beer bottles and cans, one of which struck an infant’s head). Reading the statutory language to apply to all adults, regardless of the relationship, appears consistent with the legislative intent to protect children from abuse. See State v. Santillanes, 2001-NMSC-018, ¶ 24, 130 N.M. 464, 27 P.3d 456 (stating that purpose of statute is to expand protection for children who are more vulnerable than adults).
{51} Defendant was an 18-year-old adult who shot a 14-year-old child. Unless the Legislature expressly states otherwise, Defendant’s friendship with the victim does not excuse his conduct. We acknowledge Defendant’s argument that a strict application of this statute can lead to absurd results, such as when two friends are separated in age by only a couple of days. However, those facts are not before us. Therefore, we reject Defendant’s argument that the child abuse statute does not apply to him.
Child Abuse Jury Instructions
{52} Defendant also challenges the jury instructions for child abuse. Even though an outdated instruction was given, Defendant did not object or tender different instructions. Therefore, we review for fundamental error. See Rule 12-216(B)(2) NMRA 2005; State v. Sosa, 1997-NMSC-032, ¶ 23, 123 N.M. 564, 943 P.2d 1017. The doctrine of fundamental error applies only under exceptional circumstances and only to prevent a miscarriage of justice. State v. Jett, 111 N.M. 309, 314, 805 P.2d 78, 83 (1991). Error that is fundamental “must go to the foundation of the case or take from the defendant a right which was essential to his defense and which no court could or ought to permit him to waive.” State v. Garcia, 46 N.M. 302, 309, 128 P.2d 459, 462 (1942).
{53} Defendant argues and the State concedes that the district court gave the jury the former elements instruction for child abuse, rather than the new one. Under the old instruction, the jury was required to find that Defendant knew or should have known of the danger involved and acted with a reckless disregard for the safety or health of the child. See UJI 14-602 NMRA 1999. Under the new instruction, the jury is required to find that Defendant acted with reckless disregard, which means the jury must find that Defendant knew or should have known his actions created a substantial and foreseeable risk, that Defendant disregarded that risk and was wholly indifferent to the consequences and to the welfare and safety of the child. See UJI 14-602 NMRA 2005.
{54} In Mascareñas, this Court was concerned that the jury could have applied an ordinary negligence standard rather than a criminal negligence standard because the terms “negligence” and “reckless disregard” were used in the same element without clarifying the difference. 2000-NMSC-017, ¶¶ 12-13, 129 N.M. 230, 4 P.3d 1221. A similar mistake occurred in Defendant’s case. The jury was instructed, “To find that [Defendant] negligently caused child abuse to occur, you must find that [Defendant] knew or should have known of the danger involved and acted with a reckless disregard for the safety or health of David O’Brien.” As in Mascareñas, we acknowledge the potential for juror confusion.
{55} Under a fundamental error analysis, however, we consider any possible confusion in the context of jury instructions as a whole. See State v. Cunningham, 2000-NMSC-009, ¶ 21, 128 N.M. 711, 998 P.2d 176. The State argues that this situation differs from Mascareñas because the jury here was given a definitional instruction of “reckless disregard” stating that “[f|or you to find the defendant acted with reckless disregard in this case, you must find that the defendant acted with willful disregard of the rights or safety o[f] others and in a manner which endangered any person or property.” The State contends that this definitional instruction adequately corrected the omission of the definition of “reckless disregard” in the elements instruction.
{56} Ordinarily, we would agree with the State and conclude that the definition corrected any potential for juror confusion. Only the child abuse instruction referred to “reckless disregard,” and we would presume that the jury would understand the connection regardless of the order in which the jury instructions were read. However, because the possibility exists that the jury read the reckless disregard instruction in the context of the other instructions for homicide, we cannot assume that the misplaced definition corrected any potential for juror confusion. Thus, we conclude that the existence of the jury instruction for reckless disregard did not correct any shortcomings in the child abuse instruction.
{57} However, even assuming that the reckless disregard instruction did not correct the improper child abuse instruction, and that juror confusion persisted due to the order the instructions were given, any error in the child abuse instruction was harmless and not fundamental error. A definitional instruction is not necessary if, as matter of law, no rational juror could find that a defendant acted with less than criminal negligence. See Magby, 1998-NMSC-042, ¶ 11. Without acquitting Defendant, no rational juror could have found that Defendant shot David under the circumstances presented in this case without meeting the standard of criminal negligence. At the very least, Defendant was guilty of criminal negligence under the facts presented. We therefore affirm the conviction for child abuse resulting in death.
Double Jeopardy
{58} Having reversed the depraved mind murder conviction, and affirmed the child abuse resulting in death conviction, we now consider whether it would be in the interests of justice to remand for a new trial on the lesser-included offenses of first-degree murder, for which the jury received instructions, or to remand for entry of judgment on a lesser-included offense. See State v. Villa, 2004-NMSC-031, ¶ 9, 136 N.M. 367, 98 P.3d 1017.
{59} Defendant can only be convicted of one crime for David’s death. See Santillanes, 2001-NMSC-018, ¶ 5 (“ ‘[T]he generally accepted notion that one death should result in only one homicide conviction’ overcomes the presumption of multiple punishment.”). Because we are affirming the child abuse resulting in death conviction, a conviction for second-degree murder or involuntary manslaughter would violate fundamental principles of double jeopardy. See id. (holding convictions for both child abuse and vehicular homicide resulting in death constitute a double jeopardy violation); State v. Mann, 2000-NMCA-088, ¶ 14, 129 N.M. 600, 11 P.3d 564 (concluding that convictions of both child abuse resulting in death and second-degree murder violate the general rule that one homicide by the acts of one defendant should result in one homicide conviction), affd, 2002-NMSC-001, 131 N.M. 459, 39 P.3d 124.
{60} Because we affirm the conviction for child abuse resulting in death, Defendant cannot be convicted twice for the lesser includes offenses of depraved mind murder. Thus, it would not be in the interests of justice to remand for a new trial or for entry of judgment on the lesser included offenses.
CONCLUSION
{61} We reverse Defendant’s conviction for depraved mind murder, and affirm the conviction for child abuse resulting in death. On remand, we instruct the district court to vacate Defendant’s conviction for depraved mind murder and adjust Defendant’s sentence accordingly.
{62} IT IS SO ORDERED.
MINZNER, MAES and CHÁVEZ, JJ., concur. SERNA, Justice (concurring in part and dissenting in part).