STEPHEN JOHN DAHLGREN v. THE STATE OF TEXAS (2012)

MEMORANDUM OPINION

Opinion By Justice Murphy

Stephen John Dahlgren appeals his conviction for two counts of endangering a child.   After finding appellant guilty, the trial court sentenced him on each count to two years' confinement in a state jail facility to run concurrently, probated for four years, and assessed a fine.   In two points of error, Dahlgren challenges the legal sufficiency of the evidence.   We affirm.

BACKGROUND

Theresa Ahearn was in her car leaving a school parking lot when she noticed two children in the middle of the street.   One child was completely naked, and the other was partially naked.   She and a second passing driver, who also stopped her car upon seeing the children in the roadway, followed the children to a home on Eidelweiss Drive in Allen, Texas.   They knocked on the door repeatedly for several minutes, and no one answered.   Ahearn called the police.

After eight to ten minutes, a woman identified as Summer Dahlgren, now deceased, opened the door slightly.   Ahearn described Summer as acting “very strange.”   She appeared to have “just woken up” or had been asleep and did not acknowledge her children.   After Ahearn told Summer she had found her children in the street, “at some point it's like she clued in” and started to cry.   Summer yelled at the older child, “where's your father?”   Although Ahearn offered to get the baby a diaper, Summer never reached down to pick up a child or do anything.   At some point, the older child went into the house, and Summer acknowledged the children as hers.   There also was a time when Summer was upset and crying and “was hysterical about her husband.”   She told Ahearn that she had seizures and her husband was supposed to be watching the children.   Ahearn did not feel comfortable leaving the children, so she called the police again and waited until they arrived.

Officer Jacob Snyder of the Allen Police Department responded to the call.   After speaking with Ahearn outside, he approached the house.   Summer answered, opening the door only slightly.   Snyder asked to enter the home to check on the children and to make sure they were okay.   Summer agreed and backed away from the door.   When Snyder tried to push open the door, he “couldn't get it open because there was a bunch of garbage and trash behind the door.”   He testified the house was indescribable because of the filth and said it was the “worst house [he'd] seen in four years” of duty.   He called for a supervisor.

Snyder was talking to Summer, who was on the couch, when the older child wanted to take Snyder to his room.   Snyder followed the child to his room and realized the door would not open because of a latch lock about five feet high.   When he unlatched and opened the door, he saw only a bare mattress and playpen and what appeared to be a fresh urine stain on the floor.   There was no bathroom access, no food or water, and the room was filthy.   The window in the room was open, without a screen, and the older child confirmed that was how he and his brother had gotten out of the house.   Summer walked into the room behind Snyder and picked up a third child he did not know was in the house.   He described that child as close to a year old and appearing malnourished.   He estimated the ages of the two children who had been in the street as two and three.

Corporal Wayne and Officer Marsh arrived and began helping Snyder process the scene.   Summer told Snyder the power was off, and he saw they had been using coolers to keep their food.   He also found thousands of dollars worth of sports memorabilia, a $600 console PlayStation 3, and a vehicle in the garage, all of which were “well taken care of.”   This disturbed him.   He took pictures, which were admitted as evidence, and those included a lock box that Summer told him contained her medications.

Jerry Allen Wright, a special investigator with Child Protective Services assigned to this region, responded “in reference to three children that were in various states of being unattended and in need of sustenance and clothing and supervision.”   When he arrived at the house, he saw several police cars.   He described the house as the “filthiest home [he'd] been in in 55 years.”   He testified in detail about the condition of the house and “took a great deal of” pictures that he said could not “do it justice” because of the smell.   He too was struck by the expensive and elaborate sports memorabilia.

Wright also described a large heavy black safe found in a playpen.   They took the safe to one of the bedrooms and discovered bottles of prescription medication within.   When they were taking the safe to a bedroom, they noticed the window in the bedroom where the children had gotten out and there was a diaper hanging on the shrubs outside the window.   They found “every type of electronic thing that you could want” in the master bedroom, and Wright described that room as the “filthiest thing [he had] been in in [his] life bar none.”

Wright described the environment as unsafe for children—he observed at least one child attempt to eat off the floor where the dogs had defecated and urinated.   Uneaten food appeared to be left where it was dropped, it was molded, and the children would pick up food to eat.   He described the youngest child as having “that thousand yard stare that people in the military, abuse[d] children, neglected children have where they just look right through you.”   He also observed that child at the child advocacy center where they took pictures of her malnourished body.   He testified that she fixated on three bottles of formula placed on a copy machine and went through the bottles so fast they would not feed her anymore for fear of overloading her system.   He also described her arms and legs as being bowed and her head as larger than normal.   He said he had not seen anything “like this” in his thirty-four years of law enforcement.

Sandra Bradley, the mother of one of Summer's friends, also testified.   Around the same time period when the two boys were found in the street, the children had also visited Bradley.   She said that “[e]very time they came in the door they were always hungry, and they were asking for something to eat.”   She testified that during that time period, Summer was having seizures and was having a heart problem.   She described appellant and Summer's relationship and testified appellant was responsible for taking care of the children because Summer was unable to care for the children when she was taking medications for her seizures.

Rebecca Bridges, Summer's sister, also testified.   Although she was not in contact with Summer at the time of the incident described, she testified about a previous situation that occurred four to six months earlier.   She testified Summer's illness was worsening and the living conditions were deteriorating.   Summer called her “desperately.”   When Bridges arrived, she found Summer “in full blown convulsions” and unbathed.   The house “was beyond recognition,” and the children were unbathed and “uncared for.”   She took Summer to the emergency room.   After that she visited Summer and appellant at the house.   She testified Summer was “dazed” and heavily medicated and described the atmosphere as “hostile.”   Bridges said Summer “absolutely” was not fit to supervise the children when she was on medication.

The trial court found appellant guilty on two counts of endangerment of the lives of the two older children, but found appellant not guilty on two counts involving the youngest.   Appellant filed a motion for new trial, which the trial court denied.

DISCUSSION

Appellant argues in two points of error the evidence is legally insufficient to support his conviction on two counts of child endangerment.   He specifically attacks the sufficiency of the evidence to prove he placed the children in imminent danger of death, bodily injury, or physical or mental impairment (point of error one) and to prove he engaged in such conduct with a culpable mental state (point of error two).

Standard of Review

In a legal sufficiency review, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.   Jackson v. Virginia, 443 U.S. 307, 319 (1979);  Brooks v. State, 323 S.W.3d 893, 894–95 (Tex.Crim.App.2010) (plurality op.).   We defer to the jury's credibility and weight determinations, because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony.   See Jackson, 443 U.S. at 319.   The fact finder has a duty to “resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”  Id.

The trial court found appellant guilty of two counts of endangering a child under subsection 22.041(c) of the penal code.   Under this subsection, a person commits an offense if he “intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment.”  Tex. Penal Code Ann. § 22.041(c) (West 2011).

Analysis

Appellant bases his first sufficiency challenge on the adequacy of the evidence to show that he engaged in conduct that placed the two older children in “imminent” danger.   Specifically, appellant contends the mere presence of the children in the street, with no evidence vehicles were driving on the roadway, was nothing more than a potentially dangerous situation.   He argues the situation was not one in which death, bodily injury, or physical or mental impairment was imminent.

Ahearn described the events leading up to her discovery of the children in the middle of the road.   Those events included her leaving the parking lot of the nearby elementary school where she worked as a teacher and turning left onto the street toward a stop sign at a crossroads near where she found the children.   Another driver also saw the children and pulled over to assist Ahearn in trying to find the children's home.

Appellant argues there was no evidence of any traffic on the street when the children were present, and certainly “not more than a mere modicum.”   He contends that because there was no testimony that cars were driving by and only one witness testified to the condition, this was no evidence of “imminent” danger.   The trial court, as the fact finder, disagreed.

The determination of whether a child is in imminent danger is always a fact-intensive inquiry, and this Court may not sit as a thirteenth juror or alternate fact finder.   Jackson, 443 U.S. at 319.   Rather, we must determine whether the inferences drawn by the trial court in this case were reasonable based on the combined force of the evidence—both direct and circumstantial—when viewed in the light most favorable to the verdict.  Id. It was the trial court's prerogative as the fact finder to determine the weight and credibility of the evidence.  Id.

We conclude, after examining the evidence in a light most favorable to the verdict, that the evidence and reasonable inferences drawn from the facts meet the Jackson standard.   Giving credence to Ahearn's testimony of what she and another driver observed and the actions they took, in addition to Snyder's and Wright's testimony as to the ages and condition of the children, the trial court reasonably could infer imminent harm.   More specifically, it is reasonable to infer that two-and three-year old naked and half-naked children sitting and playing alone in a road, with motor vehicles driving by, are in immediate danger of death, bodily injury, or physical or mental impairment caused by a moving vehicle or abduction.   Accordingly, the evidence is legally sufficient to support the “imminent” danger element of appellant's conviction.   We overrule appellant's first point of error.

Appellant's second sufficiency challenge is to proof of his culpable mental state.   Appellant committed an offense under section 22.041(c) of the penal code if he “intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engage[d] in conduct” that placed the children in imminent harm.  Tex. Penal Code Ann. § 22.041(c).  A person acts recklessly or is reckless with respect to circumstances surrounding his conduct or the result of his conduct when “he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur,” where such disregard “constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.”   Id. § 6.03(c) (West 2011).   Similarly, a person acts with criminal negligence or is criminally negligent when “he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur,” such that a failure to perceive the risk “constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.”   Id. § 6.03(d).

Summer's friends and family testified that she openly suffered from a heart condition and seizures, for which she had been hospitalized in the past.   Her sister's testimony specifically showed appellant knew of Summer's medical conditions and the effect of her medications.   Summer was unable to care for the children when medicated and certainly not if she was having seizures.   All descriptions of those conditions were consistent with Summer's behavior that Ahearn, Snyder, and Wright observed and described.   Three witnesses also testified appellant was responsible for supervising the children.

The trial court reasonably could have inferred from the filth and disarray of the house Summer shared with appellant and from the children's conditions, that appellant knew Summer was unable to care for the children.   A reasonable inference from all of the testimony—including the prior hospitalization, the location of the box containing Summer's medicines, the outside latch on the boys' bedroom door, and the absolute filth in the house—was that Summer's inability to care for the children had existed for at least the last six months.   The circumstances also explain Summer's hysterical cries asking where appellant was the day the two- and three-year old boys were found in the street.   Thus the trial court reasonably could infer appellant was or should have been aware of the risk of leaving the children with their incapacitated mother.   Leaving the children with Summer was the equivalent of leaving them alone.   Yet appellant disregarded that risk and his behavior may be viewed as a gross deviation from the standard of care of a reasonable person.   We conclude the evidence, including all reasonable inferences, is legally sufficient to support appellant's conviction as to his culpable mental state.   We overrule appellant's second point of error.

CONCLUSION

The evidence is legally sufficient to support each element of the offenses the State was required to prove, including appellant's knowing or reckless conduct in placing his two- and three-year old children in imminent danger of death, bodily injury, or physical or mental impairment.   We therefore overrule appellant's two points of error and affirm the trial court's judgment.

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

STEPHEN JOHN DAHLGREN, Appellant

No. 05–10–01257–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 429th Judicial District Court of Collin County, Texas.  (Tr.Ct.No.416–82087–08).

Opinion delivered by Justice Murphy, Justices FitzGerald and Fillmore participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered July 30, 2012.

/Mary Murphy/

MARY MURPHY

JUSTICE

MARY MURPHY JUSTICE