Com. v. Druhot, A.

• Court: Superior Court of Pennsylvania
• Decided: July 12, 2018
• Docket: 1077 WDA 2017
• Status: Unpublished

Opinion

J-S25012-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : ASHLEE DAWN DRUHOT : : Appellee : No. 1077 WDA 2017

Appeal from the Order Entered June 26, 2017 In the Court of Common Pleas of Elk County Criminal Division at No(s): CP-24-CR-0000136-2016

BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JULY 12, 2018

Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Elk County Court of Common Pleas, which granted the petition

of Appellee, Ashlee Dawn Druhot, for a writ of habeas corpus, and dismissed

the criminal complaint that charged Appellee with several offenses arising

from the death of her minor child (“O.M.”), for the Commonwealth’s failure to

present a prima facie case on all counts.1 We affirm.

In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history. Therefore, we have no need to restate them.

Procedurally, we add that the Commonwealth timely filed a notice of appeal

____________________________________________

1 Pursuant to Pa.R.A.P. 311(d), the Commonwealth has certified in its notice of appeal that the trial court’s order substantially handicapped or terminated the prosecution of the Commonwealth’s case against Appellee. Accordingly, this appeal is properly before us for review. J-S25012-18

on July 21, 2017. The court ordered the Commonwealth on July 26, 2017, to

file a concise statement of errors complained of on appeal per Pa.R.A.P.

1925(b); the Commonwealth timely complied on August 11, 2017.

The Commonwealth raises the following issues for our review:

WHETHER THE [TRIAL] COURT ERRED AS A MATTER OF LAW AND/OR ABUSED ITS DISCRETION BY WEIGHING THE 2009 CONVICTION OF SCOTT MURPHY ASSAULTING [FATHER] AS BEING “TOO REMOTE IN TIME AND FAR TOO ATTENUATED CIRCUMSTANTIALLY” TO EVIDENCE A PROPENSITY FOR VIOLENCE BY SCOTT MURPHY, SAID EVIDENCE BEING ADMITTED BY THE COMMONWEALTH AT [THE] TIME OF [THE] PRELIMINARY HEARING[?]

WHETHER THE [TRIAL] COURT ERRED AS A MATTER OF LAW AND/OR ABUSED ITS DISCRETION BY GRANTING [APPELLEE]’S PETITION FOR WRIT OF HABEAS CORPUS DISMISSING AS TO COUNT 1, INVOLUNTARY MANSLAUGHTER, 18 PA.C.S.A. § 2503(A), MISDEMEANOR FIRST DEGREE, OF THE CRIMINAL INFORMATION AS THE COMMONWEALTH MAINTAINS THAT A PRIMA FACIE CASE WAS PRESENTED BY THE COMMONWEALTH IN SUPPORT OF SAID CRIMINAL OFFENSE[?]

WHETHER THE [TRIAL] COURT ERRED AS A MATTER OF LAW AND/OR ABUSED ITS DISCRETION BY GRANTING [APPELLEE]’S PETITION FOR WRIT OF HABEAS CORPUS DISMISSING COUNT 2, ENDANGERING THE WELFARE OF CHILDREN, 18 PA.C.S.A. § 4304(A)(1), FELONY THIRD DEGREE, OF THE CRIMINAL INFORMATION AS THE COMMONWEALTH MAINTAINS THAT A PRIMA FACIE CASE WAS PRESENTED BY THE COMMONWEALTH IN SUPPORT OF SAID CRIMINAL OFFENSE[?]

WHETHER THE [TRIAL] COURT ERRED AS A MATTER OF LAW AND/OR ABUSED ITS DISCRETION BY GRANTING [APPELLEE]’S PETITION FOR WRIT OF HABEAS CORPUS DISMISSING COUNT [4], ENDANGERING THE WELFARE OF CHILDREN, 18 PA.C.S.A. § 4304(A)(1), FELONY THIRD DEGREE, OF THE CRIMINAL INFORMATION AS THE COMMONWEALTH MAINTAINS THAT A PRIMA FACIE CASE

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WAS PRESENTED BY THE COMMONWEALTH OF SAID CRIMINAL OFFENSE[?]

WHETHER THE [TRIAL] COURT ERRED AS A MATTER OF LAW AND/OR ABUSED ITS DISCRETION BY GRANTING [APPELLEE]’S PETITION FOR WRIT OF HABEAS CORPUS DISMISSING COUNT [3], RECKLESSLY ENDANGERING ANOTHER PERSON, 18 PA.C.S.A. § 2705, MISDEMEANOR SECOND DEGREE, OF THE CRIMINAL INFORMATION AS THE COMMONWEALTH MAINTAINS THAT A PRIMA FACIE CASE WAS PRESENTED BY THE COMMONWEALTH OF SAID CRIMINAL OFFENSE[?]

WHETHER THE [TRIAL] COURT ERRED AS A MATTER OF LAW AND/OR ABUSED ITS DISCRETION BY GRANTING [APPELLEE]’S PETITION FOR WRIT OF HABEAS CORPUS DISMISSING COUNT 5, RECKLESSLY ENDANGERING ANOTHER PERSON, 18 PA.C.S.A. § 2705, MISDEMEANOR SECOND DEGREE, OF THE CRIMINAL INFORMATION AS THE COMMONWEALTH MAINTAINS THAT A PRIMA FACIE CASE WAS PRESENTED BY THE COMMONWEALTH OF SAID CRIMINAL OFFENSE[?]

(Commonwealth’s Brief at 4-5).

A pre-trial habeas decision is not subject to an abuse of discretion

standard. Commonwealth v. Karetny, 583 Pa. 514, 880 A.2d 505 (2005).

A pre-trial habeas decision on the Commonwealth’s prima facie case for a

charged crime is a question of law subject to plenary review.

Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa.Super. 2016) (en

banc) (citing Karetny, supra).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Richard A.

Masson, we conclude the Commonwealth’s issues merit no relief. The trial

court fully discusses and properly disposes of the questions presented. (See

-3- J-S25012-18

Trial Court Opinion, filed June 26, 2017, at 1-10) (finding: (1-2)

Commonwealth presented insufficient evidence to establish prima facie case

against Appellee for involuntary manslaughter; Commonwealth’s evidence

established on or about December 31, 2015, Appellee was aware Daniel J.

Murphy (“Father”) had delivered their two minor children (“Children”) to

apartment of Scott and Kristy Murphy, Children’s paternal aunt and uncle;

Appellee did not have input into Father’s decision to move Children to home

of uncle and aunt; Appellee did not reside in Elk County and was never present

in Scott and Kristy Murphy’s home; Father continuously assured Appellee he

would bring Children back from Scott and Kristy Murphy’s home; in attempt

to show Appellee was aware of Scott Murphy’s propensity for violence,

Commonwealth presented written statement Appellee provided police in

investigation of Scott Murphy’s 2009 simple assault against Father; during

2009 incident, Scott Murphy was drunk and attacked his adult brother with

knife; no children were present or harmed during 2009 incident; Scott

Murphy’s conviction for 2009 assault of Father is too remote in time and too

attenuated to evidence propensity for violence; 2009 incident occurred seven

years before death of O.M.; television news interview Appellee gave after

death of O.M. did not establish Appellee knew or should have known of

threatening conditions at Scott and Kristy Murphy’s home; Appellee inquired

and received several reports that Children were in good health while living

with Scott and Kristy Murphy; statements Appellee made to television news

-4- J-S25012-18

reporter do not demonstrate any foreknowledge of substantial and

unjustifiable risk to O.M. at home of Scott and Kristy Murphy; marginal

concern Appellee expressed as to Scott and Kristy Murphy’s lack of their own

children did not show Appellee knew of Children’s living conditions and

circumstances; Commonwealth failed to present prima facie evidence Appellee

consciously disregarded risk to Children; (3-4) Commonwealth failed to

establish prima facie case for two counts of endangering welfare of children

(“EWOC”); evidence did not show Appellee knew conditions at Scott and Kristy

Murphy’s home put Children in danger requiring reasonable person to

intervene; Appellee received reports from Father that Children were in good

health; Appellee also received reports from her mother and sister, and viewed

photographs of Children on Facebook, which corroborated Father’s reports;

Appellee was unaware of any threatening conduct by Scott and Kristy Murphy

that would require action to protect Children; (5-6) Commonwealth failed to

establish prima facie case for two counts of reckless endangerment of another

person (“REAP”); Commonwealth presented no evidence to show Appellee

knew Children were at risk of death or great bodily harm while Children lived

in home of Scott and Kristy Murphy). We agree. The record supports the trial

court’s decision, and we have no reason to disturb it. See Karetny, supra.

Accordingly, we affirm on the basis of the trial court’s opinion.

Order affirmed.

-5- J-S25012-18

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/12/2018

-6- Circulated 06/20/2018 11:03 AM

IN THE COURT OF COMMON PLEAS OF THE FIFTY-NINTH JUDICIAL DISTRICT OF PENNSYLVANIA

VS. * CRIMINAL

ASHLEE DAWN DRUHOT NO. CP-24-CR-136-2016

MEMORANDUM OPINION

Pending before the Court is the petition for writ of habeas corpus filed on behalf of the

defendant, Ashlee Dawn Druhot, on July 18, 2016. Hearing on the petition was conducted

November 3, 2016, and legal memorandums were subsequently provided by counsel. Druhot's

petition for writ of habeas corpus challenges the sufficiency of the evidence provided to the

issuing authority, Magisterial District Judge James L. Martin, during the June 8, 2016

preliminary hearing as to the charges in the criminal complaint filed against Druhot in which she

was charged with one count of involuntary manslaughter, 18 Pa. C.S.A. § 2504(a); two counts of

endangering welfare of children, 18 Pa. C.S.A. § 4304(a)(1); and two counts of recklessly

endangering another person, 18 Pa. C.S.A. §2705. All of these charges were bound over to court

by Magisterial District Judge Martin at the conclusion of the preliminary hearing.

1) Count 1: Involuntary Manslaughter

In Count 1 of the criminal Information filed July 1, 2016, Druhot is charged with

involuntary manslaughter, 18 Pa. C.S.A. §2504(a), incident to the death of her son, 0.31K.

who died on or about February 3, 2016. At the time of his death, 0. M. was five years

old," For purposes of a preliminary hearing, it is not

necessary to establish the accused's guilt beyond a reasonable doubt, but the Commonwealth

I 0 OS must establish at least a ma faciestase thata_crime_has been committed and" the accused is

probably the one who committed it. Com. v. McBride, 595 A.2d 589, 591 (Pa. 1991). "The

evidence need only be such that, if presented at trial and accepted as true, the judge would be

warrante m permt ungine Use to be decided by the Jury; tom. v. Karetny, 807c72-CDU) (Pa.

2005).

Involuntary manslaughter includes the prohibited act: "when as a direct result of the

doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in

a reckless or grossly negligent manner; he causes the death of another person." 18 Pa. C.S.A.

§2504(a). A person acts recklessly when they "consciously disregard[] a substantial and

unjustifiable risk that the material element exists or will result from his conduct. The risk must

be of such a nature and degree that, considering the nature and intent of the actor's conduct and

the circumstances known to him, its disregard involves a gross deviation from the standard of

conduct that a reasonable person would observe in the actor's situation." 18 Pa. C.S.A. §

302(b)(3).

Where an offense requires an act to create criminal culpability, an omission to act may

create criminal culpability where a duty to perform is imposed by law. Corn. v. Howard, 402

A.2d 674, 676 (Pa.Super. 1979). Such a duty is the legal duty imposed on parents to protect their

children and the discharge of this duty requires affirmative performance. Id at 676. In Howard,

the defendant was found guilty of involuntary manslaughter as a result of her failure to protect

her child from acts of abuse committed by her boyfriend, which occurred over several weeks. Id

at 678. The defendant in Howard witnessed and had full knowledge of the continued pattern of

abuse by her boyfriend, but consciously disregarded the risk to the health and safety of her child.

Id. The Howard court reasoned that this conscious disregard by the defendant was a gross

2 deviation from the standard conduct a reasonable-parenauld-take-under the circumstances- Mr It was this gross deviation from the standard conduct that created the criminal culpability

required to find the defendant in Howard guilty of involuntary manslaughter.

n e p esen case, e ourt mi st at t o evu ence presen

a prima facie case against Druhot for involuntary manslaughter. The Commonwealth's evidence

established that on or about December 31, 2015, Druhot was aware that Daniel Murphy, the

father of her children, O.M. avd K. m. 1 delivered the children to the

apartment of Scott and Kristy Murphy, the children's paternal uncle and aunt who lived at 149

'A Main Street, Ridgway Borough, Elk County, Pennsylvania. Druhot also was aware that the

children remained with Scott and Kristy Murphy until the death of a IAA. on or about

February 3, 2016. 6/8/16 P.H. Tr., pg. 103. Druhot did not have input into Daniel Murphy's

decision to move the children to Ridgway, she did not reside in Elk County, she was never

present in Scott and Kristy Murphy's apartment, and Daniel Murphy continuously made

assurances to the defendant that he would bring both children back. However, the only evidence

the Commonwealth presented in the context of this charge was a simple assault conviction for

Scott Murphy and a statement made by Druhot during her interview on February 4, 2016, to

Sara Small, a multimedia journalist affiliated with WJAC-TV who was covering the story about

the death of 0,M ( -

The Commonwealth promoted that Druhot was aware of Scott Murphy's propensity for

violence as she was present during an assault and gave a statement to the police that lead to the

conviction of Scott Murphy for simple assault. The incident that resulted in Scott Murphy's

simple assault conviction occurred in 2009, when he was intoxicated and attacked his brother,

Daniel Murphy, with a knife. No children were present, let alone involved or harmed during the

3 incident and this was the only evidenQtpresented regarding any criminal convictions for Scott

Murphy.

The Commonwealth also asserts that the Sara Small interview of Druhot is evidence of

Diuhui -kno ledge ofilTunsafe circumstances Cam. .4,t K. fvl.

at Scott and Kristy Murphy's apartment. The interview occurred on February 4, 2016, the day

after 0. fin. was found dead. 6/8/16 P.H. Tr., pgs. 45-63. During the interview, Druhot

indicated that she believed her children were in good care because she saw recent photographs

of the children on Facebook and received reports from her mother and Daniel Murphy, the

children's father, during the latter part of January 2016, and from her sister, as recently as three

days prior to o. death, all of which described both children as being fine and in

good health. Id. at pgs. 53-55. She also indicated Scott and Kristy Murphy lived with her and

Daniel Murphy for a short period of time, during which both Scott and Kristy Murphy showed

love for their nephews. Id. at pgs. 52-53. However, Druhot stated:

Scotty doesn't have any children so I've always had a concern - - not that I don't believe

somebody that doesn't have children can't care for a child, but they weren't equipped in

their home for children. And I always felt more comfortable sending my children

somewhere where there has been other children. It means it's already an environment

where children have lived and been and it's got the child feel to it.

Id. at pg. 53. Notwithstanding that statement, when asked by Sara Small "So ... you were of the belief that he C o. in was in good care?", Druhot responded "Yes. Oh yes." 6/8/16

P.H. Tr., pg. 52.

The present case is not at all similar to the circumstances described in Howard where the

defendant consciously disregarded a substantial and unjustified risk, but one where Druhot was

4 not aware of the alle edl de lorable circumstances in which her children were living or any

otherpritential-risk-otharm. Druhot neither knew of nor should have known ofthe existence of

circumstances that threatened her children. She inquired and received several reports that

a

Kristy Murphy. Likewise, Scott Murphy's conviction for the 2009 assault of Daniel Murphy is

too remote in time and far too attenuated to evidence his propensity for violence. The incident

that gave rise to the charges occurred some seven years before the death of O. y t. and

involved his adult brother, Daniel Murphy, as the victim, not a child. The attempt to expand one

episode of an inebriated assault on an adult brother that occurred before the birth of -0. M.

is inadequate as even prima facie evidence of the requisite elements of involuntary

manslaughter.

Moreover, the statements made by Druhot during her interview in which she expressed

her concern for leaving the children with Scott and Kristy Murphy does not remotely

demonstrate any foreknowledge of or any demonstration of any act perpetrated by Scott or

Kristy Murphy which a reasonable person would identify as a substantial and unjustifiable risk

to ' Q. M. requiring an affirmative act of intervention. This marginal concern of

Druhot in expressing that Scott and Kristy Murphy did not have children is not the kind that

indicates Druhot knew the circumstances in which her children were being maintained. Instead,

these concerns echo those any parent might have when leaving a child in the care of a family

member who may be inexperienced in childcare. Without a known risk which Druhot

consciously disregarded or a risk that Druhot should have known and appreciated, the reckless

element cannot be met. Therefore, this Court finds that the Commonwealth failed to establish a

5 prima facie case for involiintaquand_Druhat is entitled to dismissal of Count 1 of

t e eiMninalinformation.

2) Counts 2 and 3: Endangering the Welfare of Children

counts z and S onne criminal mrormation, oruhot is charged with two counts or

endangering welfare of children (EWOC), 18 Pa. C.S.A. § 4304(a)(1), for O.M.4.t K. m:

respectively. The elements of the offense of EWOC include, a "parent, guardian

or other person supervising the welfare of a child under 18 years of age, or a person that employs

or supervises such a person, commits an offense if he knowingly endangers the welfare of the

child by violating a duty of care, protection or support." 18 Pa. C.S.A. § 4304(a)(1). A defendant

acts knowingly when, 1) "the accused is aware of his or her duty to protect the child;" 2) "is

aware that the child is in circumstances that threaten the child's physical or psychological

welfare;" and 3) "has either failed to act or has taken actions so lame or meager that such actions

cannot reasonably be expected to be effective to protect the child's physical or psychological

welfare." Corn. v. Miller, 600 A.2d 988, 990 (Pa.Super. 1992). In Miller, a mother left her child

unattended because she believed her child's father made arrangements with a neighbor to watch

the child while they were gone. Id. at 989. However, the child's father never made arrangements

with the neighbor nor did the neighbor watch the child. Id. The court found the mother did not

knowingly leave the child unattended, therefore, she did not knowingly endanger the welfare of

her child, even if mother exercised poor judgment in believing the child's father, Id. at 991,

reasoning that mother's gullibility in believing father's babysitting arrangement with the

neighbor, though a possible mistake in judgment, did not rise to the level of criminal culpability

of knowingly leaving the child unattended. Id.

6 Here, the Court finds that the Commonwealth failed to present sufficientendeactios

establish a prima facie case for two counts of hwroc7rs Pa. C.S.A. § 4304(01). 1he first prong

of knowingly endangering was met as Druhot was aware of her duty to protect the children, as

-T o- To wig - I - .1 y Ii g me urp y, o c e on

the children. However, the second prong of knowingly endangering was not met, as Druhot was

not aware there were circumstances that may have threatened the children's physical or

psychological welfare. As indicated above, the Commonwealth's marginal evidence was that

from late December 2015 Druhot had knowledge her children were in the care of Scott and

Kristy Murphy in Ridgway, Pennsylvania. In the Small interview of February 4, 2016, Druhot

explained that she received reports from Daniel Murphy that both children were in good health.

Druhot had no reason to disbelieve Daniel Murphy, as she also received reports from her mother

and her sister and viewed photographs of both children on Facebook which supported the reports

from Daniel Murphy. The confirmed information received from Druhot's mother and sister and

the Facebook postings bolster the argument that Druhot was unaware of any threat of harm to

014. or KM. Not only did Druhot not know of any threatening conduct by

Scott and Kristy Murphy that would require her to act, she possessed no information that would

have compelled a reasonable person to act so as to protect the children.

The crime of EWOC is a specific intent crime with the intent element being a knowing

violation of a duty of care. Corn. v. Cardwell, 515 A.2d 311, 313 (Pa. Super. 1986); Com. v.

Smith, 956 A.2d 1029 (Pa. Super. 2008). The evidence presented by the Commonwealth clearly

did not demonstrate that Druhot had any actual notice of any risk of harm that might befall her

children while in the care of their paternal uncle and aunt, Scott and Kristy Murphy, nor did the

Commonwealth present prima facie evidence that Druhot should have known about some

7 appreciable risk. An assault perpetrated by Scott Murphy on his brother before the subject

I e-re- orrotann by any reasonable exercise of extrapolation suffice as even a prima

facie basis to establish that Druhot committed two counts of the crimes of EWOC. Druhot did

'1 I 4 O.M. ono( IC Wt.

case against Druhot for two counts of endangering welfare of children was not established.

Druhot is thus entitled to the relief requested in having Counts 2 and 3 of the criminal

Information dismissed.

3) Counts 4 and 5: Recklessly Endangering Another Person

In Counts 4 and 5 of the criminal Information, Druhot is charged with two counts of

recklessly endangering another person, 18 Pa. C.S.A. §2705, namely her two sons, O. wt.

aid K. rvi This crime includes the following prohibited act: when "[a person]

recklessly engages in conduct which places or may place another person in danger of death or

serious bodily injury." 18 Pa. C.S.A. §2705. Specifically, this crime requires that a defendant

have a 1.) mens rea of recklessness, 2.) engage in some conduct 3.) that places another person in

danger, and 4.) the achievement of placing another person in danger of death or serious bodily

injury. Corn. v. Trowbridge, 395 A.2d 1337, 1340 (Pa. Super. 1978).

The mens rea element of the offense has been defined as "a conscious disregard of a

known risk of death or great bodily harm to another person." Com. v. Hopkins, 747 A.2d 910,

916 (Pa. Super. 2000). A conscious disregard entails awareness or mindfulness of a discernible

recognizable risk, such as brandishing a loaded firearm in the commission of a crime. Com. v.

Peer, 684 A.2d 1077, 1080-1081 (Pa. Super. 1996). The Commonwealth presented no evidence

to demonstrate that Druhot knew that her two sons, a..01 K:ortA. , were at

risk of death or great bodily harm by virtue of their being maintained by their paternal uncle and

8 aunt. Furthermore, Druhot's criminal culpability cannot rest on a presumption that she should

hav en a s e o orecas arm Whiling her children, particularly when her inquires led to her

receiving positive reports regarding her children's wellbeing.

n es pr

facie evidence that Druhot did something that placed the children in danger. "Danger, and not

merely the apprehension of danger, must be created by the defendant." Com. v. Hopkins, 747

A.2d at 916. Druhot had nothing to do with placing her sons with Scott and Kristy Murphy and

once she determined the children's whereabouts, she asked about their conditions and was

presented with no negative information that would cause a reasonably prudent parent to seek

immediate intervention.

Where an offense requires an act to create criminal culpability, an omission to act may

create criminal culpability where a duty to perform is imposed by law as well. Corn v. Cottam,

616 A.2d 988, 993 (Pa. Super. 1992). Such a duty is the legal duty imposed on parents to protect

their children and the discharge of this duty requires affirmative performance. Id. Unlike in

Cottam, however, where the defendants maintained custody and control of their 14 -year-old son

who died of starvation and their 12 year-old daughter who was severely malnourished, Druhot

did not have any direct contact with her sons in the month or so after she learned where they

were staying. Again, for the purpose of establishing reckless endangerment, there must be an

actual present ability to inflict harm, not merely the apprehension of danger. Corn. v. Reynolds,

835 A.2d 720, 727 (Pa. Super. 2003).

The Court finds that insufficient evidence was presented by the Commonwealth to

establish a prima facie case against Druhot for two counts of recklessly endangering another

person. As indicated above, the extent of evidence regarding Druhot's knowledge of the

9 condition of her children was throughiepix_Is she r 1 II I I no s- o -

her sister, all of whom indicated-both children were tine and in good health. These reports were

further verified through photographs of the children posted to Facebook. Further, Scott Murphy's

2 soup assail t conviction isfar too remote m time to evidence Ins propensity tor violence,

because the incident that gave rise to the charges occurred some seven years before the death of

O. m. T. Moreover, statements made by Druhot during her interview did not express her

knowledge of known risk but of a generic concern of having her children placed with Scott and

Kristy Murphy, whom she viewed as inexperienced in childcare because they did not have

children of their own. With no prospective, let alone viable, risk known to Druhot, there was

nothing for her to consciously disregard or anything to require her to affirmatively perform.

Therefore, a prima facie case against Druhot for two counts of recklessly endangering another

person was not established and Counts 4 and 5 of the Information are dismissed.

By the Court:

Junea6, 2017 chard Masson, President Judge