Opinion
110,756.
11-21-2014
STATE of Kansas, Appellee, v. Matthew Sims LAIRD, Appellant.
Jonathan B. Phelps, of Phelps–Chartered, of Topeka, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Jonathan B. Phelps, of Phelps–Chartered, of Topeka, for appellant.
Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., STANDRIDGE and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Waiving his right to a jury trial, Matthew Sims Laird was convicted by the district court of one count of endangering a child pursuant to K.S.A.2013 Supp. 21–5601(a). He appeals his conviction, claiming there was insufficient evidence to support the conviction as the State failed to prove a reasonable probability that his actions could result in harm to F.E.A.
Facts
We draw the facts from the testimony presented at the bench trial. Laird and Miranda Laird–Horton were married and living in Topeka with Miranda's daughter, 4–year–old F.E.A. Sherriff's Deputy Melissa Dial testified that on September 22, 2012, she was called to the Laird residence responding to a domestic disturbance call, Laird being the victim. When Dial arrived at the address, she saw two females and one male in the front yard. As Dial approached, Miranda ran crying towards Dial saying, “He left my baby here alone.” Dial testified that Miranda advised that she had gone out with friends that night and Laird had volunteered to stay home and watch F.E.A. When Miranda returned to the home, Laird's vehicle was not there, the door was unlocked, and F.E.A. was sleeping in her bed with no one else in the home.
Dial also spoke with Derrick McLaughlin while at the Laird residence. Dial found McLaughlin sitting in a car in the street. McLaughlin told Dial that he had given Miranda a ride home that evening. McLaughlin stated that Laird's vehicle was not at the house when they arrived, but Laird drove up and got out of his vehicle shortly thereafter.
Dial also spoke to Laird, who stated that he had agreed to watch F.E.A. and that he took her to get ice cream and watched a movie with her before putting her to bed. Dial testified that although she specifically asked what Laird did after he put F.E.A. to bed, he did not account for his time after putting F.E.A. to bed and speaking to her at around 1:20 a.m.
Dial testified that she did not see any condition posing an imminent danger to F.E.A. and that it appeared F.E.A. was in bed asleep during the entire time in question. In so testifying, Dial stated that she did not know how long Laird was away from the home and that she believed a 4–year–old child left alone in a home was dangerous because of the potential for fire or abduction.
Miranda testified that she and Laird were separated but continued to live together as Laird had nowhere else to live. Miranda testified that on September 22, 2012, her friend was celebrating a birthday and that she decided to go celebrate when Laird volunteered to watch F.E.A. Miranda went to a bar for the celebration at around 8:30 p.m. She called a friend for a ride home at around 1 a.m. because she had been drinking and did not want to drive home. She said that when she arrived home, the vehicle that Laird was driving was not there. She entered the house and verified that her daughter was sleeping in her room, but she could not locate Laird. Miranda then called Laird to ask where he was and he told her that he was in the backyard. When Miranda checked the backyard, she did not see Laird. She again asked Laird where he was, to which he replied that he had baby monitors on. Miranda responded by telling Laird that they did not own any monitors and demanded to know where he was. In response to her demand, Laird just laughed in a manner that led Miranda to believe he was intoxicated.
According to Miranda's testimony, Laird returned to the home while still on the phone with her. At this point, Miranda told him that he was not allowed into the house and the two engaged in some shoving, leading Miranda to slap Laird, who then called the police. On cross-examination, Miranda admitted that she did not know how long F.E.A. was home alone and that Laird arrived at the home about 5 minutes after she returned. Miranda also testified that some of the dangers a 4–year–old child could face if alone were fire, abduction, or falling down the stairs. On cross-examination, Miranda admitted that F.E.A. normally did not go down the stairs and that the stairs were protected by a childproof lock on the door leading downstairs.
McLaughlin, who gave Miranda a ride home from the bar, testified that when he and Miranda arrived at the residence, he did not see any other vehicles. McLaughlin further testified that after he and Miranda arrived at her home, she went inside and then came out acting hysterical because there was no one in the home with her daughter. McLaughlin said that about 5 minutes later, a vehicle arrived at the house. He observed Laird exit the vehicle and, as Laird stumbled toward the house, Laird and Miranda began arguing. McLaughlin said Laird approached Miranda aggressively, at which point Miranda slapped Laird. McLaughlin also confirmed that he spoke to the police that night. In conjunction with his testimony, the statement McLaughlin made to the police was introduced into evidence.
On cross-examination, McLaughlin confirmed that he and Miranda were not dating at the time of the incident but had begun dating about 6 months thereafter. McLaughlin also stated that he did not know how long Laird was gone from the home or where he went.
At the close of the State's case, Laird moved for judgment of acquittal. In support of his motion, Laird argued that the State had failed to present evidence that F.E.A. was in any imminent danger. Specifically, Laird argued that a conviction for endangering a child in Kansas requires evidence to demonstrate an actual probability of injury or harm as opposed to the evidence of a hypothetical danger presented by the State in its case-in-chief. The State countered that since F.E.A. was only 4 years old at the time, leaving her unattended exposed her to danger. The State argued that F.E.A.'s age was the important fact establishing an actual probability of danger. The district court denied Laird's motion.
Laird then testified as the only defense witness. Laird testified that he had a couple of drinks while at the house watching F.E.A. and that the only place he went that night was to get ice cream with F.E.A. Laird insisted he never left F.E.A. unattended. He further testified that he was in the backyard smoking a cigarette when Miranda returned home and that he never exited or drove a vehicle. Laird testified that he thought part of the reason Miranda was so angry and struck him was because she was intoxicated and because she arrived at the house with McLaughlin, which exposed a relationship that she was attempting to conceal from him. He then testified that there was nothing dangerous in the house and reiterated that he never left the property on September 22, 2012.
The State argued in its closing argument that leaving F.E.A. alone exposed her to risks of real dangers like choking, fire, and perhaps kidnapping. The State further argued it had sufficiently proved Laird knowingly placed F.E.A. in a situation where her life, body, or health may have been in danger. In response, Laird argued the State had failed to prove beyond a reasonable doubt that he was gone for more than 3 minutes or that F.E.A. was subjected to a real immediate threat of harm, which is the standard of proof required for a conviction.
Given F.E.A. was only 4 years old at the time, the district court concluded Laird's leaving the home for any amount of time with the doors unlocked was sufficient to prove Laird violated K.S.A.2013 Supp. 21–5601(a) by unreasonably placing F.E.A. in danger. In so concluding, the district court specifically found Laird's testimony was not credible. Instead, the court found credible Miranda's testimony stating that Laird did not arrive home until approximately 5 minutes after he told her on the phone that he was in the backyard having a cigarette.
Analysis
Laird challenges the sufficiency of the evidence supporting his conviction, specifically claiming that the State did not present evidence establishing F.E.A. was facing imminent danger.
To establish the crime of child endangerment, the State bore the burden to prove that Laird “knowingly and unreasonably [caused or permitted F.E.A., a 4–year–old child,] to be placed in a situation in which the child's life, body or health may be endangered.” K.S.A.2013 Supp. 21–5601(a). In State v. Fisher, 230 Kan. 192, 195, 631 P.2d 239 (1981), our Supreme Court ruled that the word “may,” as used in the statute, means a “reasonable probability.” See State v. Sharp, 28 Kan.App.2d 128, 135, 13 P.3d 29 (2000). In response to the Fisher and Sharp decisions, PIK Crim.3d 58.10 was amended to include the phrase “reasonable probability” in the definition of endangering a child.
More recently, the Kansas Supreme Court explained what the State is required to prove in order to establish a “reasonable probability” that the child's life, body, or health was endangered as that phrase was used in PIK Crim.3d 58.10. State v. Cummings, 297 Kan. 716, 731, 305 P.3d 556 (2013). In Cummings, the court held the pattern instruction failed to provide the jury with the specific guidance it needed to determine whether there was a likelihood that the child would be harmed as a result of the defendant's actions. In order to avoid these vagueness concerns, the Cummings court held that the jury should had been given the following additional instruction in a simple endangerment prosecution:
“In determining if there was a reasonable probability that [the child's] life, body, or health would be injured or endangered, you should consider (1) the gravity of the threatened harm, (2) the legislature's or regulatory body's independent assessment that conduct is inherently perilous, and (3) the likelihood that harm to the child will result or that the child will be placed in imminent peril. ‘Likelihood’ means more than a faint or remote possibility.” 297 Kan. at 731.
Laird waived his right to a jury trial and the case was presented for decision to the court as a factfinder; thus, the manner in which a jury should be instructed is immaterial here. Nevertheless, the Supreme Court's holding in Cummings is significant to our analysis because it identifies specific factors to consider when a factfinder is asked to decide whether there existed a likelihood of harm to the child as a result of the defendant's actions.
We note, as a preliminary matter, that the criminalization of child endangerment in K.S.A.2013 Supp. 21–5601 is intended to prevent harm to children; accordingly, the State is not required to prove that a child actually suffered harm in order to support a conviction under that statute. See Cummings, 297 Kan. at 722–23. In light of the holding in Cummings, we must consider the three factors set forth in that case to determine whether there was sufficient evidence to support the district court's finding of reasonable probability that F.E.A. would be harmed as a result of Laird's actions.
When the sufficiency of the evidence is challenged on appeal, this court must review all of the evidence in the light most favorable to the prosecution to determine whether it is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Importantly, appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations. State v. Harris, 297 Kan. 1076, 1081, 306 P.3d 282 (2013). An appellate court looks only to the evidence that supports the verdict, and if the essential elements of the charge are supported by any competent evidence, the conviction must stand. State v. Dean, 273 Kan. 929, 933, 46 P.3d 1130 (2002).
We have reviewed the trial testimony and find that, when viewed in the light most favorable to the prosecution, the evidence consists of the following:
• F.E.A. was 4 years old at the time of the incident.
• Laird volunteered to watch F.E.A. on the evening of September 22, 2012, so that Miranda could attend her friend's birthday celebration.
• Miranda left for the celebration at around 8:30 p.m.
• Miranda called a friend for a ride home at around 1 a.m. because she had been drinking and did not want to drive home.
• When Miranda returned to the home, Laird's vehicle was not there, the door was unlocked, and F.E.A. was sleeping in her bed with no one else in the home.
• Miranda called Laird on the phone to find out where he was and, based on his behavior, Miranda believed Laird was intoxicated.
• Laird arrived at the home about 5 minutes after Miranda returned.
• Once home, Laird exited the vehicle, stumbled toward the house, and approached Miranda in an aggressive manner.
• Some of the dangers a 4–year–old child could face while home alone are fire, abduction, or falling down the stairs.
A reasonable inference of guilt may be established by circumstantial evidence. Kansas caselaw is clear that a conviction for even the gravest offense may be sustained on circumstantial evidence. See State v. Scaife, 286 Kan. 614, 618–19, 186 P.3d 755 (2008). To that end, the reasonable inferences drawn from this evidence that support Laird's conviction consist of the following:
• The fact that Laird admitted to drinking alcohol during the time in question, that Miranda believed Laird sounded intoxicated on the phone, and that McCollough observed Laird stumble out of his car supports an inference that Laird was intoxicated.
• The fact that Laird left and returned in a vehicle (as opposed to on foot) supports an inference that he was some distance away from the house and unavailable for purposes of knowing whether F.E.A. had awakened or needed help.
• The fact that F.E.A. was asleep upstairs and a childproof lock was installed on the door leading to downstairs supports an inference that F.E.A. would have been confined to the upstairs and unable to leave the house in case of an emergency.
Having set forth the facts and reasonable inferences drawn from them, we are ready to consider the three Cummings factors to determine whether there was sufficient evidence to support a reasonable probability that F.E.A. would be harmed as a result of Laird's actions.
1. Gravity of the threatened harm
The first factor we consider is the gravity of the threatened harm. Separate and distinct from the third factor (likelihood or risk that a child actually will be harmed), this factor relates only to the nature and severity of the harm if it did come to pass. The seriousness of the threatened injury often is apparent in prior endangerment cases. See State v. Schumacher, 298 Kan. 1059, 1069, 322 P.3d 1016 (2014) (threat of harm resulting from father firing gun while 15–year–old daughter seated in the room); Cummings, 297 Kan. at 732 (threat of harm from strangulation resulting from improperly fastening car seat safety straps on infant); State v. Cott, 288 Kan. 643, 644, 206 P.3d 514 (2009) (threat of harm resulting from mother's driving under the influence of alcohol with 4–year–old son asleep in the front seat without child safety seat); State v. Daniels, 278 Kan. 53, 72–73, 91 P.3d 1147 (threat of harm when mother conspired with or aided and abetted her adult son and his friend in robbing an elderly man while her other son, a minor, was in the car), cert. denied 543 U.S. 982 (2004) ; State v. Dean, 42 Kan.App.2d 32, 41, 208 P.3d 343 (2009) (threat of harm resulting from large quantity of marijuana in an unlocked dresser drawer only 2 feet from the ground when children had free run of the house).
In this case, the State argued the nature of the threatened harm to 4–year–old F.E.A. was severe, to wit: being trapped in the house had it caught on fire, being harmed or abducted by a stranger who walked in through the unlocked door, falling down the stairs, or leaving the house unattended to look for her absent mother or stepfather. Viewing the evidence and the reasonable inferences drawn from them in a light most favorable to the State, we conclude the nature of the harm to which 4–year–old F.E.A. was exposed as a result of being left home alone, with the front door unlocked, in the middle of the night, was severe. The gravity of harm related to abduction and/or physical and psychological injury had a stranger entered the unlocked house is obvious. Although perhaps the childproof lock on the door leading downstairs would have prevented F.E.A. from falling down the stairs or leaving the house, that lock also would have prevented F.E.A. from leaving the house in the event of a fire or other tragic circumstance that could have arisen. The gravity of such harm if such an occurrence transpired is, again, apparent.
Although the court did not make factual findings related to the gravity of the threatened harm, the district court specifically relied on the fact that F.E.A. was only 4 years old in finding a reasonable probability that she would be harmed as a result of Laird's actions. Given the limited capacity of a 4–year–old child to make reasoned decisions, to take safety precautions, and to appreciate danger, the type of harm that could come to a 4–year–old child in the absence of a supervising adult is severe. See Honeycutt v. City of Wichita, 247 Kan. 250, 264, 796 P.2d 549 (1990) (the capacity of children for care and caution at a given age is a practical question within the common knowledge or experience of a lay person).
2. Legislation or regulations indicating conduct is inherently perilous
The second Cummings factor to consider is whether the defendant's conduct violates a separate criminal statute. If it does, this fact necessarily would bolster the endangerment charge because it reflects the legislature's intent to define the act as a threat to public health, safety, and welfare. But our research reveals no separate criminal statute or regulation in Kansas that criminalizes the act of leaving a child alone. On the civil side, the Revised Kansas Code for Care of Children (RKCCC) defines neglect as a “failure to provide adequate supervision of a child or to remove a child from a situation which requires judgment or actions beyond the child's level of maturity, physical condition or mental abilities.” K.S.A.2013 Supp. 38–2202(t)(2). But the language of the statute makes clear that this definition applies to the term neglect as used in the RKCCC, which is civil in nature.
3. The likelihood that harm to the child will result or that the child will be placed in imminent peril is more than a faint or remote possibility
Although no longer the determinative factor, the likelihood that harm will occur is the third factor and remains an important consideration when evaluating the magnitude of the risk. We have declined to uphold endangerment convictions where the risk of harm is too remote, which is an indication that the harm may not have been foreseeable. See State v. Hernandez, 40 Kan.App.2d 525, 529–30, 193 P.3d 915 (2008) (although mother allowed young child to play in front yard with other children while she was alternating between cooking dinner and watching children through window, risk of child drowning in a retaining pond that recently had flooded from rain was too remote to hold mother criminally liable for child endangerment); State v. Siebold, No. 101,687, 2010 WL 1882148, at *4 (Kan.App.) (unpublished opinion) (faint or remote possibility that 8– or 9–year–old child's life, health, or body may have been injured or endangered because she was not wearing a seat belt in a car where mother was transporting methamphetamine was found insufficient to hold mother criminally liable for child endangerment), rev, denied 290 Kan. 1103 (2010).
Conversely, we have upheld endangerment convictions where the risk of harm is imminent or foreseeable. See Daniels, 278 Kan. at 72–73 (court upheld mother's convictions for endangering a child based on evidence that she conspired with or aided and abetted her adult son and his friend in robbing an elderly man with her other son, a minor, in the car); Fisher, 230 Kan. at 199 (court upheld conviction for child endangerment when mother left infant daughter in the care of a man she knew had twice subjected the child to violent physical abuse and who had a history of physically abusing others); State v. Ramos–Beleta, No. 105,941, 2012 WL 5519119, at *7 (Kan.App.2012) (unpublished opinion) (court upheld conviction for endangering a child based on evidence that ex-husband broke into ex-wife's house and attacked her by stabbing her leg with a knife and cutting her hand with a screwdriver in front of their children after the mother called them in to help her), rev. denied 296 Kan. 1134 (2013); State v. Ramirez, No. 102,421, 2011 WL 2793219, at *8–9 (Kan.App.2011) (unpublished opinion) (court upheld conviction for endangering a child based on a finding that placing a 15–month–old child in a duffel bag and dropping him onto an uncarpeted floor is a situation in which the child's body may be injured), affd 299 Kan. 224, 328 P.3d 1075 (2014).
Even when viewed in a light most favorable to the State, we find the evidence here is insufficient to establish that Laird's conduct placed F.E.A. in imminent peril. See Fisher, 230 Kan. at 199 (purpose of statute is “to prevent people from placing children in situations where their lives and bodies are obviously in imminent peril”). While the type of harm that could come to a 4–year–old child left unsupervised while asleep in an unlocked house late at night is serious, the facts in the record simply fail to support a finding that the risk of serious harm to F.E.A. in this case was anything other than a faint or remote possibility. Although the court found Laird's testimony alleging he was in the backyard the whole time less than credible, the only evidence presented to support the length of his absence indicates that he was gone for about 5 minutes. In addition, Dial testified that she did not see any condition posing an imminent danger to F.E.A. and that it appeared F.E.A. was in bed asleep during the entire time in question.
In sum, although the type of harm that could come to a 4–year–old child in the absence of a supervising adult is severe, there is no indication that our legislature would consider Laird's actions to be inherently perilous and the facts here fail to establish anything more than a faint or remote possibility that the type of serious harm that could have come to F.E.A. was in any way imminent. In the absence of evidence to establish a likelihood of harm to F.E.A. as a result of Laird's actions, his conviction must be reversed.
Reversed.