State v. Hernandez, 34,423

Police executed a search warrant at 203 Virginia, Alamogordo; officers found heroin (13 foil packets) and methamphetamine in a zippered bag inside a dresser drawer in a cluttered bedroom.
A child (Defendant’s son, ~7–8 years old per some officers; “a little guy” elsewhere) was detained about a block and a half from the house when officers arrested Defendant.
Officers observed child-related items (colorful tray with food, backpack, toys, Nintendo DS) in the same bedroom; the tray was described as “very close” to the dresser but no distance was measured.
Defendant admitted possessing the heroin (for a few hours) and methamphetamine (about a day) but testified his son did not live at the house, had been there only about an hour, and was not left unsupervised in the room.
Jury convicted Defendant of possession of controlled substances and negligent child abuse by endangerment; on appeal the Court of Appeals reviewed sufficiency of evidence for the endangerment conviction and reversed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether evidence was sufficient to support negligent child abuse by endangerment	Presence of illegal narcotics in the child’s vicinity created a substantial, foreseeable risk; drugs in home justify endangerment conviction	Drugs were concealed in wrapped bundles inside a dresser; child was only briefly present and not shown to have access or prolonged exposure	Reversed: insufficient evidence of substantial and foreseeable risk or zone of danger

State v. Chavez, 146 N.M. 434, 211 P.3d 891 (N.M. 2009) (articulates ‘‘substantial and foreseeable risk’’ standard and limits endangerment prosecutions to significant risks)
State v. Trossman, 146 N.M. 462, 212 P.3d 350 (N.M. 2009) (reversed endangerment conviction where presence of chemicals lacked proof they were stored so as to endanger a child)
State v. Graham, 137 N.M. 197, 109 P.3d 285 (N.M. 2005) (upheld conviction where drugs/paraphernalia were accessible to infants and conditions made contact likely)
State v. Schaaf, 308 P.3d 160 (N.M. Ct. App. 2013) (upheld conviction where filthy, dangerous home conditions and drug use created prolonged zone of imminent danger)
State v. Garcia, 315 P.3d 331 (N.M. Ct. App. 2014) (reversed conviction where defendant’s intoxication alone, absent additional proof of substantial risk, did not establish felony endangerment)
State v. Gonzales, 263 P.3d 271 (N.M. Ct. App. 2011) (endangerment requires the child be in the defendant-created zone of danger; mere proximity is insufficient)