This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations fr om the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. No. 34,423 4 MICHAEL HERNANDEZ, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 7 James Waylon Counts, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 Walter Hart, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Bennett J. Baur, Chief Public Defender 14 Santa Fe, NM 15 Josephine H. Ford, Assist ant Appellate Defender 16 Albuquerque, NM 17 for Appellant 18 MEMORANDUM OPINION 19 SUTIN, Judge. 202 {1} Defendant Michael Hernandez was c onvicted by a jury of two counts of 1 possession of a controlled substance (heroi n and methamphetamine) in violation of 2 NMSA 1978, Section 30-31-23 (2011), and childabuse negligently caused (no death 3 or great bodily harm) on an endangerment th eory in violation of NMSA 1978, Section 4 30-6-1(D)(1) (2009). On appeal , Defendant argues that there was insufficient evidence 5 to convict him of negligent child abuse by endangerment. He also argues that the 6 proper approach to addressing his issues would have been civil intervention, as 7 opposed to criminal prosecution. We agree that there was insufficient evidence to 8 convict Defendant of negligent child ab use by endangerment, and we therefore 9 reverse. Because we reverse this criminalconviction on sufficiency grounds, we need 10 not address Defendant’s civil intervention argument. 11 BACKGROUND 12 {2} On November 20, 2012, Kyle Graham (formerly a patrol deputy/agent with 13 Otero County Sheriff’s Office Narcotics Enforcement Unit, and at the time of trial, an 14 officer with the Ruidoso Police Department ), Border Patrol Agent Timothy Huffman, 15 and David Hunter (formerly anundersheriff, and at the time of trial, a detective) were 16 doing surveillance at 203 Virginia in Alamogordo, New Mexico. As they were 17 monitoring the residence, O fficer Graham witnessed a white Chrysler pull up to the 18 house and saw Defendant approach the ve hicle and then return to the house. 193 Thereafter, George Hernandez, Defendant’s brother, came out of the residence and got 1 in to the front passenger seat of the Chrysl er. At that point, law enforcement executed 2 a search warrant for the residence. 3 {3} George Hernandez and a female who had been in the Chrysl er were detained, 4 and Undersheriff Hunter entered, announced “search warrant,” and cleared the 5 residence to make sure no oneelse was inside. After Undersheriff Hunter cleared the 6 residence, Officer Graham entered the re sidence and found that the back door was 7 open, as if someone had just left. At trial, Agent Huffman agreed that it looked as 8 though someone had just left the house prior to law enforcement’s entry, and he 9 testified there were tracks leading from the back of the house to an alley. About a 10 block and a half down the alley, Agent Huffman saw that his fellow agents had 11 detained Defendant, another man, and a little boy who l ooked to be about seven or 12 eight years old. Agent Huffman testified th at the boy, who was De fendant’s son, was 13 “a little guy” about three or four feet tall. 14 {4} While executing the search warrant, law enforcement searched the entire 15 residence and found illegal narc otics, money, and a pipe in a drawer of a wicker 16 dresser in the far northeast bedroom. Officer Graham testified that the house was very 17 cluttered with “a lot of items, a lot of . . . knicknacks” thr oughout, including in the 18 bedroom where narcotics werefound. In the bedroom healso found a cell phone and 194 a name tag with Defendant’s name on it. As to the narcotics found in the dresser, 1 Officer Graham testified that he found th irteen individually foil-wrapped packets of 2 heroin, which had been wrappe d in three separate plastic bundles contained within a 3 brown zippered bag located in a drawer of th e dresser. He also te stified that he found 4 a baggie with a white crystalline substance in the same drawer in the dresser. At trial, 5 the State elicited testimony fro m forensic scientists thatthe substance in the foil6 wrapped packets or “bindles” tested positiv e for heroin and the crystalline substance 7 in the baggie contained methamphetamine. 8 {5} Officer Graham testified that, while searching the northeast bedroom, he saw 9 a child’s tray with food on it, a backpack with school work, toys, and a Nintendo DS 10 that evidenced a child’s presence in that room. He tes tified that the tray was colorful 11 and was decorated with cartoon characters, and the food on the tray looked as though 12 someone was eating or had just finished eati ng. Officer Graham explained that the tray 13 was located in the same room as the dre sser containing the narc otics and was “very 14 close” to the dresser containing the narcotic s, but did not give an estimated distance. 15 Officer Graham testified that he did not actually see a child in the bedroom, but he 16 assumed that the child had been using the tray because there were cartoon figures on 17 it. Officer Graham never saw a child, and hedid not know the height of the child that 18 other officers had encountered. He was unable to opine as to whether the child would 191 In its brief, the State describe s the dresser as being “small” and 14 “approximately 30 inch[es] hi gh[.]” However, the State provides no citation to the 15 record where testimony to thateffect was elicited. Where a party fails to cite any 16 portion of the record to support its factual allegations, appellate courts need not 17 consider the argument. See Santa Fe Exploration Co. v. Oil Conservation Comm’n , 18 1992-NMSC-044, ¶ 11, 114 N.M. 103, 835 P.2d 819; see also Rule 12-213(A)(3), (B) 19 NMRA (requiring appellate briefs to contain, in relevant part, “citations to the record 20 proper, transcript of proceedings or exhi bits supporting each factual representation”). 21 Additionally, as noted earlier, Officer Grahamspecifically stated he did not measure 22 the dresser. 23 5 have been able to lean over and look in the drawer or whether the child had ever 1 touched the drawer where the narcotics we re located. He did not measure the height 2 of the dresser. 1 3 {6} Defendant testified at trial that he was staying at his mother’s house at 203 4 Virginia to assist in caring for his mother with dementia. George Hernandez was also 5 staying at the house at the time of the sear ch, and Defendant testified that they both 6 used the northeast bedroom. Defendant’s s on was living with Defendant’s wife at 7 another home in Alamogordo. Defendant testified that his son was not sleeping at 8 Defendant’s mother’s home. Defendant also testified that his son did not visit the 9 house very much, and his son was not living in the bedroom shared by Defendant and 10 George. He denied that his son had unsupervised access to the room and testified that 11 his son had only been in his care for about an hour when law enfo rcement arrived. As 12 to the tray noted by Officer Graham, Defendant testified th at he saw George eating a 136 sandwich in the bedroom just before the sear ch and stated the whole family used that 1 tray. Defendant admitted to purchasing th e heroin found by law enforcement, but he 2 testified that he had the heroin in his possession for only about two hours before his 3 son arrived. He testified th at he had the methamphetamine in his possession for about 4 a day. 5 DISCUSSION 6 Standard of Review 7 {7} Claims of insufficient evidence are reviewed for substantial evidence. State v. 8 Chavez , 2009-NMSC-035, ¶ 11, 146 N.M. 434, 211 P.3d 891. “Substantial evidence 9 is such relevant evidence as a reasonabl e mind might accept as adequate to support a 10 conclusion.” State v. Trujillo , 2002-NMCA-100, ¶ 8, 132 N.M. 649, 53 P.3d 909 11 (internal quotation marks and citation omitted). “The rele vant question is whether, 12 after viewing the evidence in the lightmost favorable to the prosecution, anyrational 13 trier of fact could have f ound the essential elements of the crime beyond a reasonable 14 doubt.” State v. Garcia , 1992-NMSC-048, ¶ 26, 114 N.M. 269, 837 P.2d 862 15 (alteration, internal quotati on marks, and citation omitted). We view the evidence in 16 “the light most favorable to the guilty verdict, indulging all reasonable inferences and 17 resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham , 18 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. We “[do] not weigh the 192We note that since Defendant’s trial, a new Uniform Jury Instruction for child 15 abuse not resulting in death or great bodily harm has been adopted. See UJI 14-612 16 NMRA (2015). The “child abuse instructions were substantially re vised . . . to reflect 17 amendments to the child abuse statute . . . and recent holdings of New Mexico’s 18 appellate courts” regarding th e evaluation of “recklessness.” See UJI 14-612 comm. 19 cmt.; see also State v. Consaul , 2014-NMSC-030, ¶ 37, 332 P.3d 850 (“[W]hat has 20 long been called ‘criminally negligent child abuse’ should hereafter be labeled 21 ‘reckless child abuse’ without any reference to negligence.”). 22 7 evidence or substitute [our] judgment for thatof the fact[-]finder as long as there is 1 sufficient evidence to support the verdict.” Chavez , 2009-NMSC-035, ¶ 11 (internal 2 quotation marks and citation omitted). 3 {8} “To convict [the d]efendant of child abuse by endangerment, the [prosecution] 4 had the burden of proving beyond a reasonabl e doubt that [he] caused a child to be 5 placed in a situation that endangered his life or health and did so with reckless 6 disregard for the safety of the child.” State v. Etsitty , 2012-NMCA-012, ¶ 6, 270 P.3d 7 1277; see § 30-6-1(A)(3), (D)(1). Reckless disreg ard requires that Defendant “knew 8 or should have known [his] conduct created a substantial and foreseeable risk, [he] 9 disregarded that risk and [he] was whollyindifferent to the consequences of the 10 conduct and to the welfare and safety of [the child].” 2 See UJI 14-604 NMRA 11 (withdrawn April 3, 2015, current version at UJI 14-612). 12 Child Abuse by Endangerment 138 {9} “Child abuse by endangerment, as opposed to physical abuse of a child, is a 1 special classification designed to addre ss situations where an accused’s conduct 2 exposes a child to significant risk of harm, even though the child does not suffer a 3 physical injury.” Chavez , 2009-NMSC-035, ¶ 15 (emphasis, internal quotation marks, 4 and citation omitted). The appe llate courts have acknowledge d that “[t]aken literally, 5 our endangerment statute could be read broadly to permit prosecution for any conduct, 6 however remote the risk, that may endanger a child’s life or health.” Id. ¶ 16 7 (alteration, emphasis, internal quot ation marks, and citation omitted); see also State 8 v. Schaaf , 2013-NMCA-082, ¶ 8, 308 P.3d 160 (same). However, this Court has 9 already recognized a more narrow applicati on of the endangerment statute that was 10 adopted by our Supreme Court in Chavez , 2009-NMSC-035, ¶ 16, when we stated that 11 “by making child endangerment a third degree felony, the Legislature anticipated that 12 criminal prosecution would be reserved for the most serious occurrences, and not for 13 minor or theoretical dangers.” Schaaf , 2013-NMCA-082, ¶ 8 (internal quotation marks 14 and citation omitted). Schaaf noted that criminal prosecution is only appropriate when 15 the defendant’s conduct creates “a substantial and foreseeable risk of harm.” Id. 16 (emphasis, internal quotation marks, and citation omitted). Our Supreme Court has 17 explained that the “substantial and foreseeab le risk of harm” st andard satisfies the 189 legislative purpose “to punish conduct that creates a truly significant risk of serious 1 harm to children.” Chavez , 2009-NMSC-035, ¶ 22. 2 {10} In determining “whether the risk createdby an accused’s conduct is substantial 3 and foreseeable[,]” the Chavez Court outlined factors under which a defendant’s 4 conduct should be evaluated. Id. ¶ 23. The Chavezfactors were concisely stated in 5 Schaaf , 2013-NMCA-082, ¶ 9, as follows: 6 One factor is the gravity of the risk, which serv es to place an individual 7 on notice that his conduct is perilous[] and potentially criminal. A second 8 factor is whether the defendant’s conduct violates a separate criminal 9 statute, which bolsters the endangerment charge, because the Legislature 10 has defined the act as a threat to public health, safety, and welfare. A 11 third factor, although no longer the determinative factor, is the likelihood 12 of harm, which informs the court of the foreseeability of the risk when 13 evaluating its magnitude. Also relevant is the length of time that these 14 conditions are allowed to exist and the amount of supervision in the 15 home, which are certainly factors that can increase or mitigate the degree 16 of risk involved. 17 (Alteration, internal quotation marks, and citations omitted.) “[T]he defendant’s 18 conduct must create a substantial and foreseeab le risk of harm to an identified . . . 19 child within the zone of danger[, and t]he risk cannot bemerely hypothetical, as the 20 child must be physically close to an inhere ntly dangerous situation of the defendant’s 21 creation.” State v. Gonzales , 2011-NMCA-081, ¶ 21, 150 N.M. 494, 263 P.3d 271. 22 “[E]ndangerment of [a child] cannot be pred icated on a child’s mere proximity to a 23 dangerous situation, but rather that the defendant’s actions must place the child who 2410 is endangered in the direct line of any danger so as to create more than a mere 1 possibility of harm.” Id. ¶ 25 (internal quotation marks and citation omitted). 2 {11} Although the specific facts in this case differ from previous New Mexico 3 appellate cases involving ch ild endangerment, we find State v. Trossman , 2009- 4 NMSC-034, 146 N.M . 462, 212 P.3d 350, State v. Graham , 2005-NMSC-004, 137 5 N.M. 197, 109 P.3d 285, State v. Garcia , 2014-NMCA-006, 315 P.3d 331, and 6 Schaaf , 2013-NMCA-082, to be particularly useful for comparison purposes because 7 they involve instances where a child abuse charge was pr emised in part on actual or 8 potential drug use or manufacturing by the defendant in a home with a child. 9 {12} InTrossman , 2009-NMSC-034, ¶ 1, the defendantappealed her conviction for 10 negligently permitting child abuse by endangerment “after sh e was arrested in a house 11 . . . where chemicals and equipment invol ved with methamphetamine production were 12 found and the evidence suggested that her childlived there with her.” In vacating the 13 defendant’s convicti on, the Supreme Court stated its concern “with the lack of 14 evidence that establishe[d ] the presence of the childin the home” when “the 15 dangerous situation occurred” and held that New Mexico law required “a greater 16 showing of risk of harm” than was presented by the prosecution. Id. ¶¶ 2, 22-23, 25. 17 The Court noted that although witnesses testified that some of the chemicals found in 18 the house could be dangerous, there was no evidence that the “legal, household 1911 chemicals were actually stored in a manner that could endanger a child in the house.” 1 Id. ¶ 23. Additionally, there was no evid ence regarding when or how often 2 methamphetamine production occurred in the house or that the house was actually 3 contaminated. Id. Also, no methamphetamine was found in the house. Id. Viewing this 4 evidence as a whole, the Supreme Court held that the prosecution “simply did not 5 present any evidence to allow the jury to draw the specifi c inferences required for it 6 to find endangerment.” Id. ¶ 24. 7 {13} In Graham , 2005-NMSC-004, ¶¶ 1, 9, 15, our Supreme Court affirmed the 8 defendant’s conviction for child abuse by endangerment. While executing a search 9 warrant, officers found: 10 crack cocaine, several plastic bags w ith marijuana, a marijuana pipe, and 11 a hanging scale in a dresser drawer in the master bedroom. The officers 12 also noticed rolling papers and marijuana residue, including seeds and 13 stems, on top of a different dresser. Additionally, the officers found a 14 marijuana roach on the living[]room fl oor in front of the sofa and a 15 marijuana bud in a crib in the master bedroom. The officers also 16 recovered a plastic sandwich bag witha small amount of marijuana just 17 inside the front door on a table next to a fish tank. The officers saw two 18 infants in the house and noticed that they were in diapers. The house was 19 dirty and untidy, with soiled clothes on the floor throughout the house 20 and unwashed dishes with old food on them. 21 Id. ¶ 2. The Court held that “[f]rom the evid ence in the record, a rational jury could 22 draw reasonable inferences th at the marijuana was accessible to the children, that there 23 was a reasonable possibility that the children would come in contact with the 2412 marijuana, and that there was a reasona ble possibility of danger to the very young 1 children from ingesting the marijuana” and thus affirmed the defendant’s conviction. 2 Id. ¶¶ 14-15. Although Grahamhas not been overturned, we note that inChavez , 3 2009-NMSC-035, ¶ 18, our Supreme Court st ated that “the relevant conduct must 4 create more than a ‘possibility’ of harm be fore it may be punished as a felony.” In our 5 analysis in this Opinion, we rely on the heightened standard articulated in Chavez

. 6 {14} In Garcia , 2014-NMCA-006, ¶ 1, this C ourt overturned the defendant’s 7 negligent child abuse by endangerment conviction. The defe ndant was convicted after 8 her three-year-old son wa s found wandering outside of the defendant’s apartment 9 building at 2:00 a.m. crying, cold , and wearing only a dirty diaper. Id. ¶ 2. A neighbor 10 found the child and returned him to the defendant’s apartment. Id. ¶ ¶ 2-3. The 11 defendant’s apartment was filled with empty alcohol containers and other trash, and 12 there was vomit on the floor. Id. ¶ 3. There was marijuana and a pipe in the apartment 13 and a knife in one of the bedrooms. Id. The defendant was found in a bedroom in the 14 apartment and ultimately admitted that she had gotten high and drunk. Id. ¶ 4. In 15 overturning the defendant’s conviction, this Court focused on the defendant’s 16 intoxication and stated that it “[saw] no ev idence in the record which indicate[d] that 17 [the d]efendant’s act of falling asleep inher apartment bedroom intoxicated, or any 18 subsequent failure to act, created a substan tial and foreseeable risk of harm directed 1913 to [the c]hild.” Id. ¶ 10. While recognizing that the defendant was negligent in 1 becoming intoxicated, this Court nevertheless “refuse[d] to hold that a defendant who 2 gets intoxicated and falls asleep in the same apartment as her child, with nothing more, 3 is criminally negligent.” Id. ¶ 13. 4 {15} In Schaaf , 2013-NMCA-082, ¶ 1, this C ourt affirmed the defendant’s 5 conviction for negligent child abuse by e ndangerment not resulting in death or great 6 bodily harm. In Schaaf , law enforcement, acting on ananonymous tip that illegal drug 7 use was occurring at the defendant’s resi dence, responded to the defendant’s home 8 and found that the defendant had been usi ng methamphetamine for three days and had 9 not slept. Id. ¶¶ 2-3. 10 When [law enforcement] entere d the home, they smelled smoke 11 and an overwhelmingly strong chemical odor that made it hard to breathe 12 and made one . . . officer’s eyes water. They found a filthy house with 13 three cats running around, cat urine and feces everywhere, and the entire 14 house was littered with trash, rotten food, dirty dishes, and piles of dirty 15 clothes. In the living room on a table by the front door, the officers found 16 a plastic baggie containing thirteen pills, which [the d]efendant stated 17 were antibiotics obtained from Mexico. The children’s rooms and 18 bathroom were in the same condition as the rest of the house: the beds 19 had been urinated on; there was not adequate bedding; and there [was] 20 . . . dried food embedded in the carpet[.] 21 Id. ¶ 4. The officers also found an open gun box on the floor of the master bedroom 22 that contained loaded firearms, plus spare ammunition and magazines, as well as used 23 “syringes on the bed, food, trash, cat feces , lighters, and dirty clothes all over the 2414 floor, and pornographic DVDs strewn about the room.” Id. ¶ 5. Officers found “toy 1 gun replicas” in the master bedroom and at least one in the room of the defendant’s 2 five-year-old triplets. Id. ¶¶ 2, 5. At least one of the toy guns was a replica that was 3 “indistinguishable from real guns in the hous e in its appearance, weight, and feel.” Id. 4 ¶ 5. There was drug paraphernalia in th e backyard of the residence, along with 5 children’s toys, lighters, and a small propane torch. Id. ¶ 6. The defendant “admitted 6 to smoking methamphetamine while the children were at home, both in the master 7 bedroom and in common areas[.]” Id. ¶ 7. In affirming the conviction, this Court noted 8 that the aforementioned conditions in the home were obviously and gravely 9 dangerous, id . ¶ 12, and there was “sufficient ev idence from which th e fact[-]finder 10 could have reasonably determined that th e children were exposed to an unacceptable 11 level of hazardous conditions and that it was highly probable that the children were 12 in contact with them.” Id. ¶ 13. Schaaf held that, under the f acts of the case, it was 13 reasonable to infer that the defendant’s j udgment was poor and the supervision of the 14 children was impaired. Id. ¶ 17. 15 Analysis 16 {16} Defendant challenges his conviction for negligentlycaused child abuse (no 17 death or great bodily harm) that was ba sed on an endangerment theory. Defendant 18 asserts that the State failed to present s ubstantial evidence establishing that he acted 1915 with reckless disregard by ignoring a fores eeable risk to his son’s safety. Defendant 1 argues that the harm to his son was theore tical and not substantial. Specifically, he 2 argues that although heroin is potentially dangerous to children in a home, the risk is 3 theoretical if a child does not actually have access to the drugs. Defendant argues that 4 the State relied on mere speculation that Defendant’s son was present in the house 5 under hazardous conditions. He explains that the house was cluttered but not with 6 drugs or paraphernalia as in Schaaf and Graham . He further states that his son was 7 just visiting the house when law enforcemen t arrived, there was no evidence that his 8 son was left unsupervised in the room, or that he had actually been exposed to the 9 drugs. Defendant testified thathis son usually resided withhis mother and was at the 10 house for a short period while the child’s mo ther attended an appointment. There was 11 no evidence that his son knew the drugs werein the dresser drawer, and there was no 12 evidence that he was interestedin exploring the contents of the bag in which the drugs 13 were found. 14 {17} Defendant compares the facts in his case to Trossman and Schaaf , arguing that 15 had he left drugs out in th e open, as opposed to wrapped and inside a dresser drawer, 16 the likelihood of harming a child would have been much higher. He argues that similar 17 to Trossman , and unlike Schaaf , there was no evidence that his son was exposed to 18 drugs over a long period of time. He argue s that it was unclear who occupied the 1916 bedroom at the time that the search warrant was executed and that there was no 1 evidence that he had been using drugs that day. In addition to arguing that there was 2 a lack of evidence regarding his son being unsupervised, Defendant argues that the 3 evidence of the drugs being wrapped in several layers, placed in a zippered bag, and 4 contained inside of a dresser drawer “is the opposite of ac ting with reckless disregard 5 for his son’s safety.” He analogizes his precautions to a parent placing prescription 6 drugs in a medicine cabinet. 7 {18} In response to Defendant’s argumen ts on appeal, the State argues that 8 Defendant knew or should have known that placing illegal narcotics in a dresser 9 drawer “presented an extremely serious and substantial risk of danger” to his son and 10 that there was no redeeming justification for keeping the illegal drugs. In support of 11 its argument, the State focuses on the obvi ous and inherent danger associated with 12 placing a child near illegal narcotics. It anal ogizes the facts in this case to the facts in 13 Graham , Schaaf , and a number of non-binding cases from other jurisdictions. The 14 State also argues that the risk of harm to Defendant’s son was not so remote that a 15 reasonable person would not be on notice of the danger to the child or would not take 16 action to avoid the risk. Finally, the State argues that because th ere was no sufficient 17 justification for Defendant to be in posse ssion of the illegal narcotics (unlike, for 1817 example, prescription narcotics), Defendant’s conduct was morally culpable and 1 constituted recklessness. 2 {19} Although it does not appear that the State presented direct evidence of 3 Defendant’s lack of supervision of his s on or evidence that his son spent a prolonged 4 period of time in the room that housed the drugs, we indulge all reasonable inferences 5 in favor of the verdict. See Cunningham , 2000-NMSC-009, ¶ 26. We hold that the jury 6 could reasonably infer that De fendant’s son was in the bedroom at some point and that 7 he may or may not have been supervisedconstantly in the house. However, even 8 indulging those reasonable inferences, weare faced with the following difficult 9 question: whether the mere presence of hidde n but harmful and illegal narcotics in the 10 vicinity of the child, without additi onal evidence to support endangerment, is 11 sufficient to sustain a negligent child e ndangerment charge. We hold that, under the 12 facts of this case, the mere presence of illegal narcotics in De fendant’s home did not 13 support his conviction. 14 {20} Although it is undisputed that it is a crime to possess illegal narcotics, the other 15 factors provided in Chavez—the gravity of the risk and the likelihood of harm—do 16 not weigh in the State’s favor in this case. Defendant’s heroin was wrapped in 17 individual foil packets, the packets were wrapped in plastic bundles, the bundles were 18 contained in a zippered bag, and the bag was in a dre sser drawer. Although not quite 1918 as diligently concealed, the methamphetaminewas in a bag which was also in the 1 dresser drawer. The dresser was in a cluttered bedroom, among many other items. 2 There was no evidence that Defendant’s s on had actually encountered the narcotics, 3 or, despite the State’s argument to the contrary, that Defendant’s son, given his size 4 and limited time at the residence, w ould foreseeably find the narcotics. 5 {21} The State did not elicit testimony that De fendant’s son was in a zone of danger. 6 See Gonzales , 2011-NMCA-081, ¶ 21. Although Officer Graham testified that he 7 found a tray with cartoon characters “very close” to the dresser, the State failed to 8 provide evidence that Defendant’s son wa s “close to an inherently dangerous 9 situation” for a prolonged period. Id. ; see Schaaf , 2013-NMCA-082, ¶ 15 (holding 10 that “there was sufficient circumstantial evidence to infer that the children’s living 11 conditions constituted a prolonged zone of imminent danger”). In fact, the only 12 testimony regarding the length of time thatDefendant had the narcotics in his 13 possession was Defendant’s testimony that heobtained the heroin a few hours before 14 law enforcement arrived and that he obtai ned the methamphetamine the previous day. 15 Additionally, Defendant testified that his son had only been at his house for about an 16 hour when law enforcement arrived and that his son did not live there and did not visit 17 very much. The State also failed to provide evidence that Defendant’s son was 18 unsupervised for an amount of time that w ould increase the child’s risk of harm. In 1919 fact, it appears that the only evidence presented by the State regarding a lack of 1 supervision is an inference based on Offi cer Graham’s testimony that the child was 2 probably not supervised for the period whenDefendant exited the residence to see 3 who was in the white Chrysler. Even indulgi ng all reasonable inferences that the child 4 was unsupervised for that period of time, wedecline to hold that briefly stepping out 5 of one’s home, while there is evidence that there was at least one other adult in the 6 residence, in this case the child’s unc le, constitutes a lack of supervision as 7 contemplated by Chavez

. 8 {22} We disagree with the State’s view that the facts in this cas e are comparable to 9 the facts in either Graham or Schaaf . As indicated earlier, in Graham , there was 10 evidence of illegal drugs in the home and th at those drugs, some of which were found 11 on the floor and in a crib, were “easily accessible” to the defendant’s children. 2005- 12 NMSC-004, ¶ 14. Although our Supreme Court noted in Graham that there were 13 drugs and paraphernalia in tw o dresser drawers in the defe ndant’s home, that fact was 14 not the sole or even primary eviden ce supporting the defendant’s conviction. See id. 15 ¶¶ 2, 14. In Schaaf , the prosecution similarly presented evidence of dangerous items, 16 i.e., loaded firearms, toy replica guns, and paraphernalia, in areas where the children 17 were permitted to play. 2013-NMCA-082, ¶ 12. The prosecution also presented 18 evidence of other filthy living conditions and evidence that the defendant had been 1920 using methamphetamine in common areas of the home while the children were home. 1 Id. ¶¶ 2, 4, 12. In the present case, although Defendant admitted to being an addict, 2 there was no evidence that he had used drugs in the house or thathe used them around 3 his son. Officer Graham testified that the house was cluttered, but did not indicate that 4 the house was unclean or otherwise unliveable, as in Schaaf . Unlike the defendant in 5 Graham , Defendant did not leave his drugs in an area that was easily accessible to his 6 son. To the contrary, it appears he took affirmative steps to conceal his illegal 7 narcotics in a dresser drawer. 8 {23} The facts in this cas e are comparable to Trossman , where the Supreme Court 9 held that the mere presence of dangerous chemicals, absent evidence that the 10 chemicals were stored in a way that could endanger a child , did not prove the risk of 11 harm necessary to sustain a child e ndangerment conviction. 2009-NMSC-034, ¶¶ 23- 12 24. We also conclude the facts in this cas e to be even less endangering than the facts 13 in Garcia , where the defendant’s child wa s found wandering out side while the 14 defendant was found intoxicated, high, and asleep in her home. 2014-NMCA-006, 15 ¶¶ 2-4. In this case, unlike Garcia , there was no evidence th at Defendant was high or 16 intoxicated or was otherwise inattentive to his son while his s on was in his care. As 17 in Garcia, the risk here was merely hypothetical, see id. ¶ 10, and based solely on the 18 child’s presumed proximity to hidden drugs. And under our case law, mere proximity, 1921 without additional evidence, is not enough to sustain a conviction. See Gonzales , 1 2011-NMCA-081, ¶ 25 (“[E]ndangerment of children cannot be predicated on a 2 child’s mere proximity to a dangerous situation[.]”). 3 {24} Because the State failed to prove thatthe harm to De fendant’s son was 4 substantial and foreseeable, that Defendant disregarded that risk, and that Defendant 5 was wholly indifferent to the consequences of the conduct and to the welfare and 6 safety of his son, we conclude that the evidence was insufficient to convict Defendant 7 of child abuse negligently caused (no death or great bodily harm) on an endangerment 8 theory. 9 CONCLUSION 10 {25} For the foregoing reasons, we reverse De fendant’s conviction for child abuse 11 negligently caused (no death or great bodily harm) and remand to the district court for 12 proceedings consistent with this Opinion. 13 {26} IT IS SO ORDERED. 14

__________________________________ 15 JONATHAN B. SUTIN, Judge 16 WE CONCUR: 17

_______________________________ 18 TIMOTHY L. GARCIA, Judge 1922 _______________________________ 1 M. MONICA ZAMORA, Judge 2