State v. Schaaf

2013 NMCA 082, 4 N.M. 510
CourtNew Mexico Supreme Court
DecidedJune 12, 2013
DocketDocket No. 31,779
StatusPublished
Cited by2 cases

This text of 2013 NMCA 082 (State v. Schaaf) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Schaaf, 2013 NMCA 082, 4 N.M. 510 (N.M. 2013).

Opinion

OPINION

FRY, Judge.

Defendant appeals from the district court’s judgment and sentence, entered pursuant to a bench trial, convicting him of one count of negligent child abuse by endangerment not resulting in death or great bodily harm and one count of possession of drug paraphernalia. On appeal, Defendant argues that the State failed to present evidence of the type of substantial and foreseeable risk of harm necessary to support his conviction for negligent child abuse by endangerment. We are persuaded that sufficient evidence supports Defendant’s conviction. We therefore affirm.

BACKGROUND

The State presented the following evidence. Upon information from an anonymous tip that illegal drug use was occurring at the residence, the probation officer assigned to Defendant’s wife (Ms. Schaaf) wentto Defendant’s and Ms. Schaaf’s home for a field visit. The probation officer, Ms. Lee, believed that firearms might be present in the home due to Defendant’s job as a security guard, despite Defendant’s agreement to secure his firearms in a location outside of the residence. As a result, Ms. Lee asked for law enforcement assistance and was accompanied to Defendant’s home by a uniformed officer, a detective, and another probation officer. They arrived at Defendant’s home at around 2:30 in the afternoon on a school day, soon before the children were getting out of school. At the time, there were four children living in the home with Defendant and Ms. Schaaf: a fifteen-year-old boy, who was Defendant’s stepson and Ms. Schaafs biological son, and five-year-old triplets from Defendant’s and Ms. Schaafs marriage.

Upon their arrival, the officers noticed that two cars were parked outside, a front window was open, and the television was on. They knocked on the doors several times, announced their presence, identified themselves, and yelled through the open window. It took Ms. Schaaf around five minutes to answer their calls and come to the door, a delay that was of concern to the officers. Ms. Schaaf came to the door wearing only pants and a bra, and she appeared dirty, with greasy hair, dark circles under her eyes, pale skin, and chapped lips. She claimed to have just gotten out of the shower. Soon after, Defendant came out from the master bedroom, looking similarly dirty and disheveled, and a glass pipe fell from his shorts onto the floor. The officers then conducted a search of Defendant’s body and found two more glass /pipes in his waistband. The officers identified them as pipes used for smoking methamphetamine. Defendant admitted that he and Ms. Schaaf had been using methamphetamine for three days and had not slept.

When the police and probation officers entered the home, they smelled smoke and an overwhelmingly strong chemical odor that made it hard to breathe and made one probation officer’s eyes water. They found a filthy house with three cats running around, cat urine and feces everywhere, and the entire house was littered with trash, rotten food, dirty dishes, and piles of dirty clothes. In the living room on a table by the front door, the officers found a plastic baggie containing thirteen pills, which Defendant stated were antibiotics obtained from Mexico. The children’s rooms and bathroom were in the same condition as the rest of the house: the beds had been urinated on; there was not adequate bedding; and there were toys, dirty clothes, rotten food, dried food embedded in the carpet, and cat feces all over.

Defendant was asked where his firearm was located, and he responded that there were four in the master bedroom. The officers entered the master bedroom and found an open gun box on the floor containing two loaded firearms, plus spare ammunition and magazines. There were dirty dishes on the bed, many open and used needle syringes on the bed, food, trash, cat feces, lighters, and dirty clothes all over the floor, and pornographic DVDs strewn about the room. Ms. Lee testified that one could hardly walk in the bedroom. Defendant told the officers that there were two more firearms in the master bedroom in a lockbox on the other side of the bed. There were toy gun replicas in the master bedroom and at least one in the triplets’ room. The triplets played with the toy guns with and without permission or supervision. At least one of the toy guns was a Glock replica indistinguishable from real guns in the house in its appearance, weight, and feel.

The master bedroom also had a sliding glass door out to the backyard, which was the only entrance to the backyard from the residence. The backyard was an enclosed space with children’s toys, lighters, a small propane torch, and undescribed drug paraphernalia.

In apolice interview, Defendant admitted to smoking methamphetamine while the children were at home, both in the master bedroom and in common areas, including the living room and backyard. The residence had three bedrooms and two bathrooms and was estimated to be about 1,400 square feet. One of the officers testified that second-hand methamphetamine smoke is heavier than cigarette smoke, travels without dissipating, and leaves a residue that sticks to things and can be touched and absorbed into the body. The eldest son, a teenager, testified that one or two days before the police arrived at their house, Ms. Schaaf showed him a glass pipe that was underneath the blankets of the master bed and that he walked away, not knowing what to do. In the police interview, Defendant admitted that smoking methamphetamine in the residence created a risk that the children could have absorbed methamphetamine and could have tested positive for it. He also admitted that the condition of his house was not safe or sanitary for the children and that they could have been killed or injured.

DISCUSSION

Substantial and Foreseeable Risk of Harm

To provide context for Defendant’s arguments, we first review our jurisprudence construing the child endangerment statute at issue. The Legislature has defined child abuse, in pertinent part, as “knowingly, intentionally or negligently, and without justifiable cause, causing or permitting a child to be[] . . . placed in a situation that may endanger the child’s life or health.” NMSA 1978, § 30-6-1 (D)(1) (2009). Our Supreme Court has observed that “[tjaken literally, our endangerment statute could be read broadly to permit prosecution for any conduct, however remote the risk, that may endanger [a] child’s life or health.” State v. Chavez, 2009-NMSC-035, ¶ 16, 146 N.M. 434, 211 P.3d 891 (alterations in original) (internal quotation marks and citation omitted). However, the Court has further acknowledged that by making child endangerment a third degree felony, the “Legislature anticipated that criminal prosecution would be reserved for the most serious occurrences, and not for minor or theoretical dangers.” Id. Mindful of these concerns, our courts strive to identify the magnitude and likelihood of the risk of harm to a child that is required for criminal prosecution under the endangerment statute. See id. ¶¶ 17-26. Adopting language from the uniform jury instruction for endangerment, our Supreme Court has declared that the defendant’s conduct must create “ ‘a substantial and foreseeable risk’ of harm.” Id. ¶ 22 (quoting UJI 14-604 NMRA). The Court determined that this standard will more closely achieve the legislative purpose “to punish conduct that creates a truly significant risk of serious harm to children.” Chavez, 2009-NMSC-035, ¶ 22.

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Related

State v. Quick
New Mexico Court of Appeals, 2020
State v. Schaaf
2013 NMCA 82 (New Mexico Court of Appeals, 2013)

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Bluebook (online)
2013 NMCA 082, 4 N.M. 510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-schaaf-nm-2013.