State v. Gallegos

2007 UT 81
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah, 	No. 20051129
Plaintiff and Appellee,
v.
Natalie Marie Gallegos,
Defendant and Appellant.
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Third District, Salt Lake
The Honorable Denise P. Lindberg
No. 051903256
__________________________________
State of Utah, 	No. 20060407
Plaintiff and Appellee,
v.
F I L E D
Kathy Hall,
Defendant and Appellant. 	October 26, 2007
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Third District, West Jordan
The Honorable Robert Adkins
No. 041100373
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Laura B. Dupaix,
Asst. Att’y Gen., Sandi Johnson, Salt Lake City,
for plaintiff
Joan C. Watt, Steven G. Shapiro, Shannon N. Romero,
Salt Lake City, for defendants
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Nos. 20051129, 20060407 	2
DURHAM, Chief Justice:
INTRODUCTION
¶1 	Natalie Gallegos and Kathy Hall petitioned for
interlocutory appeal to challenge the magistrate’s bindover on
charges of child endangerment in each of their cases. 	Gallegos
and Hall each contend that the bindover should be quashed because
the State failed to establish probable cause and because the
child endangerment statute is void for vagueness. 	Because their
appeals present identical legal issues, we address them together
in this single opinion. 	We reverse the district courts’ denials
of the motions to quash the bindover orders and remand both cases
for further proceedings consistent with this opinion.
BACKGROUND
I. 	NATALIE GALLEGOS
¶2 	On March 9, 2005, parole officers visited the home of
Natalie Gallegos to check the status of parolee Celestino Torres,
a co-inhabitant of the home. 	As the officers approached, they
observed Torres, Gallegos, two children, and another adult male
on the porch. 	Before the officers could get close enough to
speak with the group, everyone except Torres entered the house.
During their initial conversation with Torres, the officers
noticed he was acting nervous. 	Consequently, with Torres’
permission, the officers entered and inspected the house.
¶3 	Gallegos’ four children were present in the house at
the time of the inspection. 	A two-year-old was sleeping
downstairs on a sofa. 	Gallegos was in an upstairs bedroom with
her six-year-old, four-year-old, and eleven-month-old, who was
sleeping in a crib. 	Upon entering the bedroom, the officers
observed a plastic bag inside an open purse sitting on top of a
dresser. 	The officers testified that they believed the contents
to be an illegal drug. 	The officers arrested Torres. 	After
Gallegos claimed that the purse belonged to her, the officers
also arrested Gallegos. 	Further investigation revealed an
additional small plastic bag with two crystal rocks inside a
jewelry box in the bedroom. 	The substances were later tested and
confirmed to be cocaine.
II. 	KATHY HALL
¶4 	On December 8, 2003, Salt Lake County Sheriff officers
conducted a search of Kathy Hall’s home to investigate a lead on
a possible methamphetamine lab. 	When the officers arrived, Hall

1 HEET is a readily available consumer product used in
automobile engines to remove water from the fuel system.
2 This decision was not appealed by the State.
3 	Nos. 20051129, 20060407
appeared to be moving out of the residence, and consequently, all
the doors in the house were open. 	Hall’s thirteen-year-old
daughter was in the living room during the investigation.
¶5 	One of the officers testified that before entering the
house he could smell the odor of a methamphetamine lab from the
curb and from the back of the house. 	In a detached garage
officers found black tape, stained rubber gloves, and bottles
containing HEET, 1 materials the officers associated with
methamphetamine production. 	In Hall’s basement bedroom officers
found a glass pipe wrapped in tissue paper on the closet shelf
above the hanging rod. 	In another downstairs bedroom, belonging
to Teresa Albretson, police found methamphetamine, a package of
pseudoephedrine pills, and packaging materials commonly used in
methamphetamine production. 	The items were found in a set of
transparent plastic drawers about three feet high.
III. 	PROCEDURAL HISTORY
¶6 	After hearing the evidence, the magistrate judge in
Gallegos’ case determined that there was probable cause to
bindover on one count of possession with intent to distribute and
three counts of child endangerment for the eleven-month-old, the
four-year-old, and the six-year-old. 	There was no bindover on
the charges related to the two-year-old, who was sleeping
downstairs. 2 	In Hall’s case, the magistrate judge found probable
cause to bindover on one count of child endangerment and one
count of possession of paraphernalia. 	Gallegos and Hall moved to
quash the magistrates’ rulings on the endangerment charges, but
the district court affirmed the bindovers. 	Gallegos and Hall
petitioned the court of appeals for interlocutory review of the
child endangerment charges. 	The court granted both petitions and
the parties briefed the matter for the court of appeals pursuant
to that court’s precedent in State v. Nieberger, 2006 UT App 5,
128 P.3d 1223. 	The court of appeals then transferred the cases
to this court.
¶7 	We have jurisdiction pursuant to Utah Code section 78-
2-2 (2002).

3 The statute applies to children and “elder adults.” 	As
these cases concern children, we use that language. 	We note that
the statute was intended to protect those who could not protect
themselves from exposure to harmful substances. 	Thus the
legislature likely intended it to apply to “vulnerable adults”
and not “elder adults.” 	See Utah Code Ann. § 76-5-111 (2003)
(defining “elder adult” and “vulnerable adult”). 	The plain
language, however, clearly applies to “elder adults,” creating an
odd result.
Nos. 20051129, 20060407 	4
STANDARD OF REVIEW
¶8 	We review questions of statutory interpretation for
correctness, affording no deference to the district court’s legal
conclusions. 	Stephens v. Bonneville Travel, Inc., 935 P.2d 518,
519 (Utah 1997).
ANALYSIS
¶9 	The defendants argue that the bindovers should be
quashed due to lack of probable cause and because the child
endangerment statute is void for vagueness. 	The child
endangerment statute provides, “[A]ny person who knowingly or
intentionally causes or permits a child or elder adult to be
exposed to, to ingest or inhale, or to have contact with a
controlled substance, chemical substance, or drug paraphernalia
as defined in Subsection (1), is guilty of a felony of the third
degree.” 	Utah Code Ann. § 76-5-112.5(2) (2003) (emphasis
added). 3
¶10 	The defendants were charged with exposing a child or
children to controlled substances, chemical substances, or drug
paraphernalia; thus we address only the “exposed to” portion of
the statute. 	The defendants assert that, according to the
statute, the evidence must demonstrate a risk of harm to a minor
in order to constitute “exposure” under the statute. 	They also
contend that the statute is void for vagueness because the
language in the statute fails to provide sufficient guidance as
to what constitutes “exposure” to the substances or
paraphernalia. 	They argue that judges, police officers, and
prosecutors are left to determine the meaning of exposure,
allowing the crime of child endangerment to be prosecuted in an
arbitrary and discriminatory fashion.
¶11 	The defendants briefed these cases for review by the
court of appeals. 	Thus their arguments focused extensively on
the case of State v. Nieberger, 2006 UT App 5, 128 P.3d 1223,
which held that exposure under the child endangerment statute did

5 	Nos. 20051129, 20060407
not require the presence of an actual risk of harm. 	This is our
first opportunity to consider this issue, and we review the
question of the interpretation of the statute de novo. 	We
conclude that for a child to be “exposed to . . . a controlled
substance, chemical substance, or drug paraphernalia” under the
child endangerment statute, a real, physical risk of harm to the
child must exist. 	In order for the risk to be real, the child
must have a reasonable capacity to actually access or get to the
substance or paraphernalia or to be subject to its harmful
effects, such as by inhalation or touching. 	Therefore, with
respect to the element of risk, to the extent our interpretation
conflicts with the court of appeals’ holding in Nieberger, we
overrule it. 	Further, because our interpretation properly
defines and narrows the conduct that constitutes child
endangerment, we hold that the statute is not void for vagueness.
¶12 	“Under our rules of statutory construction, we look
first to the statute’s plain language to determine its meaning.”
Sindt v. Ret. Bd., 2007 UT 16, ¶ 8, 157 P.3d 797 (internal
quotation marks omitted). 	“We read the plain language of a
statute . . . as a whole and interpret its provisions in harmony
with other provisions in the same statute.” 	Sill v. Hart, 2007
UT 45, ¶ 7, 162 P.3d 1099 (internal quotation marks omitted).
“We do so because a statute is passed as a whole and not in parts
or sections and is animated by one general purpose and intent.”
Id.
¶13 	Black’s Law Dictionary defines “expose” as “[t]o show
publicly; to display” and “[t]o place in a position where the
object spoken of is open to danger, or where it is near or
accessible to anything that may affect it detrimentally; as, to
‘expose’ a child, or to expose oneself or another to a contagious
disease or to danger or hazard of any kind.” 	Black’s Law
Dictionary 579 (6th ed. 1990). 	This definition suggests that
there must be a showing of a real, physical risk of harm, not
simply exposure to the image of a controlled substance, chemical
substance, or drug paraphernalia. 	Placing a child in a situation
where she is “open to danger” or she “is near or accessible to
anything that may affect [her] detrimentally” necessitates a
requirement of accessibility and actual risk of harm.
¶14 	Moreover, the plain language of the child endangerment
statute provides that any person who “causes or permits a child
or elder adult to be exposed to, to ingest or inhale, or to have
contact with the controlled substance, chemical substance, or
drug paraphernalia” is guilty of a felony. 	The acts of
ingesting, inhaling, or contact imply some sort of risk of harm
from a controlled substance, chemical substance, or drug

4 Dangerous substances as defined by the legislature in the
child endangerment statute include chemical substances,
controlled substances, and drug paraphernalia. 	Some examples of
controlled substances the legislature has deemed dangerous
include marijuana, opium and opiates, methamphetamine, codeine,
and morphine. 	Utah Code Ann. § 58-37-4 (Supp. 2007).
5 In this context, we note that “access” necessarily
includes some types of exposure that do not require actual touch.
For example, a child sleeping in a residence where a
methamphetamine lab is functioning, even if the lab is behind
locked doors, would be exposed under the terms of the statute
because the child will experience harmful effects from the
substance. 	This type of exposure is similar to exposure to a
contagious disease as highlighted in the Black’s Law Dictionary
definition.
Nos. 20051129, 20060407 	6
paraphernalia because taking such items into the body or having
direct contact with them places the individual at risk of harm
from substances that the legislature has deemed dangerous. 4
¶15 	We agree with defendants’ argument that there must be
an actual risk of harm to a child in order for conduct to
constitute “exposure” under the statute. 	Because an actual risk
of harm is required, exposure must go beyond mere visual or
auditory exposure, such as exposure to images of drugs on
television or an infant being able to see a controlled substance
from the confines of a crib. 	The child must have a reasonable
capacity to access the substance in order for a real risk of harm
to exist. 5
¶16 	Further bolstering our conclusion is the title of the
statute: 	“Endangerment of child or elder adult.” 	Utah Code Ann.
§ 76-5-112.5. 	This title indicates that a real risk of harm is
required. 	The title of a statute is not part of the text of a
statute, and absent ambiguity, it is generally not used to
determine a statute’s intent. 	Funk v. State Tax Comm’n, 839 P.2d
818, 820 (Utah 1992). 	However, it is persuasive and can “aid in
ascertaining [the statute’s] correct interpretation and
application.” 	Young v. Barney, 433 P.2d 846, 847 (Utah 1967).
In this instance, the title of the statute supports our well-
reasoned interpretation that the “exposed to” language in the
statute requires actual endangerment to a child. 	Endangerment,
in turn, requires the actual possibility that a child could
access the dangerous substance. 	We note that this seems a common
sense interpretation of the statute. 	If the mere presence, for
example, of a controlled substance in the same room or house with
children constitutes endangerment, many innocent possessors of

7 	Nos. 20051129, 20060407
legal prescription drugs in secure places in their homes would be
committing felonies under the statute. 	Children are not “exposed
to” substances they cannot acquire or be harmed by even though
they may be under the same roof with them.
¶17 	Finally, because we find that the “exposed to” language
sufficiently limits the conduct to which the child endangerment
statute applies, we hold that the statute is not void for
vagueness.
CONCLUSION
¶18 	The “exposed to” language of section 76-5-112.5(2)
requires a real, physical risk of harm to a child; the child must
have the reasonable capacity to access the substance or
paraphernalia or to be subject to its harmful effects, such as by
inhalation. 	Accordingly, we reverse the ruling of the district
courts. 	We decline to undertake the application of the statute
as we have now interpreted it to the facts of these cases.
Instead, we remand both cases to the district courts to review
the bindover orders in light of the standard we have enunciated.
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¶19 	Associate Chief Justice Wilkins, Justice Durrant,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.