June 12, 2013 – State v. Stephen Schaaf, No. 31,779

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	JUNE 12, 2013
NO. 31,779
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
STEPHEN SCHAAF,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Douglas R. Driggers, District Judge
Gary K. King, Attorney General
James W. Grayson, Assistant Attorney General
Santa Fe, NM
for Appellee
Jeff C. Lahann
Las Cruces, NM
for Appellant

OPINION
FRY, Judge.
{1} 	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
{2} 	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) went to 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,

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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. Schaaf’s biological son, and five-year-old
triplets from Defendant’s and Ms. Schaaf’s marriage.
{3} 	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.
{4} 	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

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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.
{5} 	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

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one of the toy guns was a Glock replica indistinguishable from real guns in the house
in its appearance, weight, and feel.
{6} 	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.
{7} 	In a police 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

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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
{8} 	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 “[t]aken 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

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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.
{9} 	In Chavez, our Supreme Court set forth factors for the courts to consider in
determining “whether the risk created by an accused’s conduct is substantial and
foreseeable.” Id. ¶ 23. One factor is the gravity of the risk, which “serves to place an
individual on notice that his conduct is perilous, and potentially criminal.” 	Id. 	A
second factor is whether the defendant’s conduct violates a separate criminal statute,
which bolsters the endangerment charge, see id. ¶ 31, because “the Legislature has
defined the act as a threat to public health, safety, and welfare.” Id. ¶ 25; see State v.
Gonzales, 2011-NMCA-081, ¶ 17, 150 N.M. 494, 263 P.3d 271 (listing criminal
behavior as a factor in Chavez), aff’d No. 33,077, 2013 WL 1339598 (Mar. 28, 2013).
A third factor, “although no longer the determinative factor,” is the likelihood of
harm, which informs the court of the foreseeability of the risk when evaluating its
magnitude. Chavez, 2009-NMSC-035, ¶ 26. Also relevant is “the length of time that
these conditions are allowed to exist and the amount of supervision in the home[,

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which] are certainly factors that can increase or mitigate the degree of risk involved.”
Id. ¶ 36. The Chavez Court indicated that the state must present specific evidence,
including scientific or empirical evidence, connecting the circumstances to a
substantial and foreseeable risk of harm, where it is not readily apparent in the record.
See id. ¶ 37.
Defendant’s Arguments
{10} 	Defendant contends that the State did not present any evidence that any of the
four children were actually endangered by the drugs, guns, or other conditions of the
house while they were present in the home. 	Defendant points out that the State
presented no expert or scientific testimony as required by Chavez and that the State
relied solely on the observations and opinions of two probation officers and a
detective. 	Defendant 	emphasizes 	that 	the 	children 	tested 	negative 	for
methamphetamine and that the State failed to have anything in the house tested and
failed to conduct any investigation beyond their observations of the residence at a time
when the children were not home.
Standard of Review
{11} 	When reviewing a sufficiency of the evidence claim, we conduct a two-part test.
First, “we must view the evidence in the light most favorable to the guilty verdict,
indulging all reasonable inferences and resolving all conflicts in the evidence in favor

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of the verdict.” 	State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998
P.2d 176. Then we must “make a legal determination of whether the evidence viewed
in this manner could justify a finding by any rational trier of fact that each element of
the crime charged has been established beyond a reasonable doubt.” State v. Apodaca,
118 N.M. 762, 766, 887 P.2d 756, 760 (1994) (internal quotation marks and citation
omitted). The question for us on appeal is whether the district court’s “decision is
supported by substantial evidence, not whether the [district] court could have reached
a different conclusion.” In re Ernesto M., Jr., 1996-NMCA-039, ¶ 15, 121 N.M. 562,
915 P.2d 318. We emphasize that we do not consider the merit of evidence that may
have supported a different result. See State v. Kersey, 120 N.M. 517, 520, 903 P.2d
828, 831 (1995). 	Substantial evidence is defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” State v. Salgado,
1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 (internal quotation marks and
citation omitted).
Analysis
{12} 	We agree with Defendant that the State did not conduct a thorough investigation
into the possible effects the household environment may have had on the children or
the length of time the household was in that state, and it did not test anything in the
house. Thus, the State did not present the clearest case of child endangerment that it

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could have presented. We are persuaded, however, that the dangerousness of certain
conditions in the household were apparent and did not require the type of scientific
or empirical testimony that was required in Chavez to connect the household
conditions to the risk of harm they posed to the children. See 2009-NMSC-035, ¶¶ 29,
35, 37-40 (holding that the risk and degree of likelihood of disease or illness caused
by the presence of rodent droppings or parasites is a matter of science that should be
established by empirical and scientific evidence). The presence of loaded firearms
and toy guns, including at least one gun replica that was nearly identical to the loaded
firearms, and with which the teenager and the five-year-old triplets were permitted to
play, presented an obvious and serious risk of harm. Also concerning is Defendant’s
and Ms. Schaaf’s extended use of methamphetamine, which is a crime that bolsters
the endangerment charge. In addition, Defendant admitted to using methamphetamine
in common areas of the home while the children were at home, and he left
paraphernalia strewn about the bedroom and the backyard. See id. ¶ 25 (stating that
the violation of another criminal statute can be useful to an endangerment analysis
because it is a “legislative declaration of harm”). 	The danger posed by the loaded
firearms, particularly in the vicinity of gun replicas, the use of methamphetamine at
the residence, and the drug paraphernalia strewn about is increased by their presence
in the midst of extreme clutter. Also informing our decision about the graveness of

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the risk to the children is the young age of the triplets and the number of the children
in the home. 	Another important factor is Defendant’s recognition and admission
regarding the serious nature of the real risks of harm present in the house and the
potential injury or death that the children were exposed to there. The current case is
unlike Chavez where the alleged endangerment was based on a filthy house alone with
only speculative and vague dangers. 	See id. ¶¶ 27, 43. Instead, the endangerment
here arose from a “combination of risks,” id. ¶ 30, that together were readily apparent
and gravely dangerous.
{13} 	We agree with Defendant that the problem we face in this case is whether the
evidence sufficiently proved that the children were actually exposed to the dangerous
conditions in the home, similar to the concerns our Supreme Court addressed in State
v. Trossman, 2009-NMSC-034, ¶¶ 22-24, 146 N.M. 462, 212 P.3d 350. In Chavez,
the Court acknowledged that “there are many situations that may not produce a strict
mathematical probability of harm, but nevertheless endanger a child.” 2009-NMSC-
035, ¶ 20. The Chavez Court suggested that where there is a showing of a “very real
and unacceptable risk of harm,” a lesser probability of harm may be needed to show
criminal child endangerment. Id. Thus, “neither probability nor possibility provides
an accurate, universal description of legislative intent.” See id. ¶ 21. Our Supreme
Court has emphasized that we should view the evidence as a whole and refrain from

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parsing out and evaluating individual pieces of evidence to determine whether a
rational fact finder could draw reasonable inferences that the danger was accessible
to the children and that the children would come in contact with the danger. See State
v. Graham, 2005-NMSC-004, ¶¶ 13-14, 137 N.M. 197, 109 P.3d 285. 	Our
examination of whether there was sufficient evidence from which the fact finder could
assess the probability that the children were exposed to these hazards is informed
further, in part, by Defendant’s and Ms. Schaaf’s use of methamphetamine for three
days without sleep. See Chavez, 2009-NMSC-035, ¶ 43 (noting a distinction between
a filthy, unsafe home environment that would merit civil action and a situation that
could be criminally prosecuted where, for example, the “parents struggled with
addiction and the children suffered as a result”). Based on the analysis below, we hold
that the State presented sufficient evidence from which the fact finder could have
reasonably determined that the children were exposed to an unacceptable level of
hazardous conditions and that it was highly probable that the children were in contact
with them.
{14} 	In Trossman, our Supreme Court held that there was insufficient evidence of
child endangerment because the state failed to prove the actual presence of the child
in the home during the time in question under conditions that could have endangered
his life or health. 2009-NMSC-034, ¶ 22. In that case, police found legal household

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chemicals in the home that could each be dangerous, and together they were most
likely used for methamphetamine production, but they were not stored in a manner
that would endanger a child. 	See id. ¶ 23. 	Although there was evidence that
methamphetamine production takes only six to eight hours, there was no evidence
regarding when or how often it took place in that house. See id. Also, there was no
evidence that the house was contaminated, and no methamphetamine was found there.
See id. Although there was undisputed evidence that the child normally lived at the
house, the evidence did not show when the child was present in the home, but the
evidence did show that child was not present the night before the police arrived. See
id. ¶ 22. The Court observed that “[p]roof of child endangerment is sufficient for a
conviction if a defendant places a child within the zone of danger and physically close
to an inherently dangerous situation.” 	Id. ¶ 20 (alteration in original). 	The Court
found insufficient evidence, stating that the evidence did not place the child at the
house under dangerous conditions nor did it “suggest[] that hazardous conditions must
have been ongoing in such a way that the jury could have judged the probability that
the child must have encountered them at some point.” Id. ¶ 24.
{15} 	In contrast, in the current case, it was not disputed that the children consistently
lived at the house, that they were there the night and morning before the officers
arrived, and that they were coming home soon after the officers’ visit to the home.

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The evidence suggested that amidst Defendant’s and Ms. Schaaf’s extended
methamphetamine use, Defendant took the eldest boy to school for early practice
before the triplets left and that either Defendant or Ms. Schaaf took the triplets to the
bus stop that morning for school. 	As a result, there was sufficient circumstantial
evidence to infer that the children’s living conditions constituted a prolonged zone of
imminent danger, and 	it was reasonable for the fact finder to conclude that the
children were in contact with these hazardous conditions.
{16} 	Relevant to the State’s showing of a prolonged zone of danger, there was
evidence that another person using methamphetamine at the house left behind the
syringes, and the officers found them open on the bed a day after they had been used.
Also, in his statement to police about the firearms, Defendant made a distinction
between the secured and unsecured firearms in the master bedroom. Defendant stated
that two guns were kept in the lockbox that was locked almost all the time except
when he was going out somewhere and needed them. He stated that the other two
firearms were for home security purposes because they had experienced some
problems, suggesting that those loaded firearms were unsecured regularly, as they
were when the officers were present. There was testimony that it was common for all
the children to go through the master bedroom to go play outside because it was the
only way to access the backyard. Also, a probation officer testified that the extent to

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which the home appeared to be “unlivable” suggested that this condition of the home
was ongoing. See Chavez, 2009-NMSC-034, ¶ 36 (stating that the length of time that
the hazardous conditions are permitted to exist can increase the degree of risk);
Trossman, 2009-NMSC-034, ¶ 24 (stating that in the absence of direct evidence
placing the child in the home under the hazardous conditions, there should be
evidence that those conditions existed for so long that the fact finder could find that
“the child must have encountered them at some point”). 	Given the facts that the
children played with toy guns that replicated the real guns in the home, they had
regular access to the master bedroom with unsecured, loaded firearms, and the room
was extremely cluttered, we believe that the children were likely to encounter a
serious and unacceptable danger.
{17} 	We also consider the supervision of the children under these conditions. See
Chavez, 2009-NMSC-035, ¶ 36 (explaining that the amount of supervision in the
home “can increase or mitigate the degree of risk involved”). Although there was no
expert testimony about the effects of the type of extended use of methamphetamine
that Defendant and Ms. Schaaf engaged in, it is reasonable to infer that their judgment
was poor and their supervision of the young children around the many hazards in the
home was impaired. These inferences are supported by the following: Defendant and
Ms. Schaaf permitted the entire household to be in an unlivable state; they left

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numerous dangers and inappropriate items strewn about the house and in the
backyard; their unkempt appearance and behavior when the officers arrived, which
occurred 	soon 	before 	the 	children’s 	expected 	arrival, 	indicated 	their 	recent
methamphetamine 	use; 	and 	they 	were 	unable 	to 	conceal 	the 	signs 	of 	their
methamphetamine use, drug paraphernalia, or firearms from view of the officers, even
where they seemed to take the time to do so before answering the door and were under
threat of arrest. Viewed as a whole, the evidence supports a rational inference that
their judgment was highly impaired in the presence of substantial risks of harm to the
children and that Defendant had not secured and would not secure the substantial risks
from the children. 	See Graham, 2005-NMSC-004, ¶¶ 13-14 (emphasizing the
inappropriateness of parsing out the testimony and individual pieces of evidence in
a divide-and-conquer approach in reviewing the sufficiency of the evidence to support
a child endangerment charge). We also note that Defendant presented the fact finder
with no evidence to counter these reasonable inferences. See id. ¶ 13 (discussing the
need to avoid indulging in hypotheses consistent with innocence).
{18} 	In sum, drawing from the combination of serious risks apparent in the
children’s living environment, we hold that the State provided sufficient evidence to
prove that the children were exposed to an ongoing and pervasive zone of imminent
danger in such a manner that, with Defendant’s and Ms. Schaaf’s compromised state,

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the risk of harm to the children was so grave and probable that it constituted criminal
child endangerment.
CONCLUSION
{19} 	For these reasons, we affirm Defendant’s conviction.
{20} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Judge
WE CONCUR:
TIMOTHY L. GARCIA, Judge
J. MILES HANISEE, Judge