State v. Cummings

243 P.3d 697, 45 Kan. App. 2d 15, 2010 Kan. App. LEXIS 154

• Court: Court of Appeals of Kansas
• Decided: December 10, 2010
• Docket: 102,527
• Status: Published

Opinions

Standridge, J.:

Jessica D. Cummings appeals from her conviction for involuntary manslaughter. Specifically, Cummings argues that the underlying crime of endangering a child requires specific intent, that the district court erred in denying her request to instruct the jury on general intent, and that the district court erred in failing to instruct the jury on the meaning of reasonable probability. For the reasons stated below, we affirm.

Facts

Cummings provided daycare for children in her home. On March 25, 2008, Cummings was caring for 13-month-old K.H. Cummings gave K.H. a bottle at 9 a.m. and put her down to nap in a playpen located in Cummings’ bedroom. Cummings’ sister, Tiffanie Williams, was sleeping in the bedroom at the time. Because K.H. was making noise as she drank her bottle, Williams moved K.H. and the playpen into an adjacent bedroom where another child was sleeping.

Cummings moved K.H. again at around 10 a.m. so that K.H. would not disturb the sleeping child. Cummings put K.H. in a car seat, fastened the top buckle, and placed K.H. in a laundry room/ restroom area of the house. Cummings did not check on K.H. again until 12:30 p.m., at which time Cummings discovered that K.H. had died due to strangulation.

The State charged Cummings with involuntary manslaughter based on the underlying crime of child endangerment; in other words, that she unintentionally had killed K.H. by committing the crime of endangering a child. At her trial, the jury found Cummings guilty. The district court sentenced Cummings to 32 months in prison.

Analysis

In this direct appeal of her conviction, Cummings alleges the district court erred (1) by failing to give the jury a specific intent instruction with regard to the underlying crime of endangering a child; (2) by denying her request to instruct the jury on general intent with regard to the underlying crime of endangering a child; and (3) by failing to instruct the jury on the meaning of reasonable probability, a term used in the jury instruction in child endangerment. We address each claim of error in turn.

Specific Intent

In this first point of error, Cummings reasons as follows: (1) endangering a child in violation of K.S.A. 21-3608(a) requires the State to establish that a defendant specifically intended to injure or harm a child; (2) the instruction on child endangerment in this case did not require the jury to find Cummings specifically intended to injure or harm K.H.; therefore, (3) the district court erred in failing to provide the jury with an instruction that complied with the applicable law.

We disagree with the conclusion reached by Cummings because it is based on a faulty premise. More specifically, we find endangering a child in violation of K.S.A. 21-3608(a) is not a specific intent crime as Cummings asserts, but instead is a general intent crime.

The crime of endangering a child is defined as “intentionally and unreasonably causing or permitting a child under the age of 18 years to be placed in a situation in which the child’s life, body or health may be injured or endangered.” K.S.A. 21-3608(a).

Like any other crime, the State is required to establish general criminal intent in order to prove a defendant violated K.S.A. 21-3608(a). See K.S.A. 21-3201(a) (“Except as otherwise provided, a criminal intent is an essential element of every crime defined by this code.”). General criminal intent may be established by proof that the conduct of the accused person was intentional. K.S.A. 21-3201(a). “Intentional conduct is conduct that is purposeful and willful and not accidental.” See K.S.A. 21-3201(b).

To prove general intent, the State is not required to establish the defendant intended the precise harm or the result that occurred. See State v. Mountjoy, 257 Kan. 163, 170, 891 P.2d 376 (1995). Further, the State is “not obligated to prove an intent to violate a particular statute but rather the intent to do the criminal act which violated the statute.” State v. Kirtdoll, 206 Kan. 208, 209, 478 P.2d 188 (1970). In other words, “ ‘all that is required is proof that the person acted intentionally in the sense that he [or she] was aware of what he [or she] was doing.’” State v. Hodge, 204 Kan. 98, 108, 460 P.2d 596 (1969).

Unlike the obligation to prove general criminal intent as an essential element of every crime defined in the Kansas Criminal Code, the State is only required to prove specific criminal intent when the statute defining the crime requires an additional element of intent over and above the requisite general criminal intent. State v. Eichman, 26 Kan. App. 2d 527, 530, 989 P.2d 795, rev. denied 268 Kan. 890 (1999).

In this case, the State alleged Cummings placed K.H. in a situation where K.H.’s life, body, or health may have been injured or endangered. Given K.H. died as a result of her being placed in a car seat that only had the top buckle fastened and being left unattended for over 2 hours, we necessarily conclude this situation is one where K.H.’s life, body, or health may have been injured or endangered. In order to establish the general criminal intent necessary to convict Cummings of violating K.S.A. 21-3608, then, the State was required to prove Cummings purposely, willfully, and nonaccidentally placed K.H. in a car seat that only had the top buckle fastened and left K.H. unattended for over 2 hours.

Notably, Cummings does not dispute she purposely, willfully, and nonaccidentally placed K.H. in a car seat, that she purposely, willfully, and nonaccidentally fastened only the top buckle, that she purposely, willfully, and nonaccidentally left K.H. unattended in that situation for over 2 hours, and that K.H. died as a result of her purposeful, willful, and nonaccidental actions in this regard. Instead, Cummings argues that endangering a child in violation of K.S.A. 21-3608(a) is a specific intent crime, that this specific intent crime required the State to establish she knew K.H. would be harmed or injured as a result of her actions, and that the State failed to establish she possessed such knowledge.

Contrary to Cummings’ argument, K.S.A. 21-3608 does not require proof of any additional element of intent over and above the requisite general criminal intent: that Cummings purposely, willfully, and nonaccidentally placed K.H. in a situation where K.H.’s fife, body, or health may have been injured or endangered. The statute contains no language requiring Cummings to have known that harm or injury to K.H. could result as a consequence of her actions. In fact, the statute contains no language requiring K.H. to have been injured or harmed in anyway. Because K.S.A. 21-3608 does not require proof of any additional element of intent over and above the requisite general criminal intent, we conclude endangering a child as defined by that statute is not a specific intent crime. As such, we find no error by the district court in declining to instruct the jury on specific intent with regard to the underlying crime of endangering a child.

General Intent

For purposes of her next argument, Cummings concedes endangering a child in violation of K.S.A. 21-3608(a) is a general intent- crime. To that end, Cummings argues the district court erred in denying her request to provide the jury with an instruction relating to general intent.

“ ‘When considering the refusal of the trial court to give a specific instruction, the evidence must be viewed by the appellate court in the light most favorable to the party requesting the instruction.’ [Citation omitted.]” State v. Hayden, 281 Kan. 112, 131-32, 130 P.3d 24 (2006).

The pattern instruction relating to general intent that was requested by Cummings states as follows:

“In order for the defendant to be guilty of the crime charged, the State must prove that (his)(her) conduct was intentional. Intentional means willful and purposeful and not accidental.

“Intent or lack of intent is to be determined or inferred from all of the evidence in the case.” PIK Crim. 3d 54.01-A.

The notes to the instruction suggest it is appropriate to give this instruction only if: (1) the crime requires a general criminal intent, and (2) the state of mind of the defendant is a substantial issue. PIK Crim. 3d 54.01-A, Notes on Use. To that end, Cummings contends the first requirement for using the instruction is satisfied because she already has conceded (for purposes of this argument) that endangering a child in violation of K.S.A. 21-3608(a) is a general intent crime. Cummings contends the second requirement for using the instruction is also satisfied because her state of mind was a substantial issue in this case. In support of this contention, Cummings argues a substantial issue existed with regard to whether she knew that harm or injuiy to K.H. could result as a consequence of her actions.

We are not persuaded by Cummings’ argument. As noted above, the State was not required to establish that Cummings knew harm or injuiy to K.H. could result from her actions in order to prove Cummings was guilty of endangering a child in violation of K.S.A. 21-3608(a). In other words, there was no need for the jury to make a determination regarding Cummings’ state of mind with regard to the resulting harm or injury ultimately experienced by K.H. in order to find Cummings guilty of endangering a child in violation of K.S.A. 21-3608(a). Because her state of mind with regard to resulting injuiy or harm was not an issue, let alone a substantial issue, for determination at trial, the second requirement for giving the instruction was not satisfied, and the district court did not err in denying Cummings’ request to provide the jury with PIK Crim. 3d 54.01-A.

Reasonable Probability

In her final point of error, Cummings asserts the district court erred by failing to define the phrase “reasonable probability” in the child endangerment instruction as meaning “something more than a faint or remote possibility” and “a likelihood.” In considering Cummings’ argument, we note her claim is limited to the court’s failure to define “reasonable probability” as “something more than a faint or remote possibility” and “a likelihood”; she does not assert it was necessary to define “reasonable probability” in terms of a statistical percentage or a measure of balance capable of being gauged.

Because Cummings neither suggested a different instruction than the one used by the court nor objected to its use, a clearly erroneous standard applies. See K.S.A. 22-3414(3); State v. Cooperwood, 282 Kan. 572, 581, 147 P.3d 125 (2006). “ ‘Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred.’ [Citation omitted.]” State v. Carter, 284 Kan. 312, 324, 160 P.3d 457 (2007).

Before addressing the merits of the issue presented, we find it helpful to briefly review the language of K.S.A. 21-3608(a) and Kansas cases that have intexpreted the relevant language in that statute.

The crime of endangering a child is statutorily defined as “intentionally and unreasonably causing or permitting a child under the age of 18 years to be placed in a situation in which the child’s life, body or health may be injured or endangered.” (Emphasis added.) K.S.A. 21-3608(a). This statute was enacted in 1969, and its current form dates back to 1993. See L. 1992, ch. 298, sec. 36; L. 1993, ch. 291, sec. 59.

In State v. Fisher, 230 Kan. 192, 631 P.2d 239 (1981), the Kansas Supreme Court interpreted the language and purpose of K.S.A. 21-3608(a) (which was at that time found in K.S.A. 21-3608[l][b] [Ensley 1981]) and concluded the word “may” as used in the statute was not unconstitutionally vague. In so concluding, the court explained that in the context of the statute, the word “may” “means something more than a faint or remote possibility; it means that there is a reasonable probability, a likelihood that harm to the child will result.” Fisher, 230 Kan. at 195.

Almost two decades after the court issued its opinion in Fisher, Michael Sharp was convicted by a Douglas County, Kansas, jury of endangering a child in violation of K.S.A. 21-3608(a). See State v. Sharp, 28 Kan. App. 2d 128, 13 P.3d 29 (2000). The instruction upon which the jury convicted Sharp of endangering a child mirrored the corresponding pattern instruction that was in place at the time. Specifically, the instruction stated, in relevant part, as follows:

“The defendant is charged with the crime of endangering a child. The defendant pleads not guilty.

“To establish this charge, each of the following claims must be proved:

“1. That the defendant intentionally and unreasonably caused or permitted [a child] to be placed in a situation in which [the child’s] life, body or health might be injured or endangered.” (Emphasis added.) PIK Crim. 3d 58.10 (1993).

On appeal from his conviction, Sharp argued that by substituting the word “might” in the instruction for the word “may” as used to define the crime in K.S.A. 21-3608(a), the jury was given the improper legal standard to consider in determining whether the crime had been committed. A panel of this court agreed. The Sharp court found it significant that in Fisher the Kansas Supreme Court rejected the ordinary or normal meaning of the word “may” in the context of K.S.A. 21-3608(a) and specifically defined it in that context as “reasonable probability.” Sharp, 28 Kan. App. 2d at 131-32 (citing Fisher, 230 Kan. at 195). Based on the definition set forth in Fisher, the Sharp court concluded that the “may be injured” language in K.S.A. 21-3608(a) was to be construed after Fisher as a reasonable probability that the child would be injured.

In light of this conclusion, the Sharp court found the instruction upon which the jury convicted Sharp set forth an improper legal standard to determine whether Sharp had committed the crime of endangering a child. Specifically, the instruction only required the State to prove that the child’s life, body, or health might be injured or endangered, while our Supreme Court in Fisher previously had rejected the ordinary or normal meaning of the word “may” as used in the statute “in favor of a definition containing a legal standard: reasonable probability.” 28 Kan. App. 2d at 135. The Sharp court ultimately held there was “a very real possibility, especially under the facts of this case, that the jury would have returned a different verdict had the term ‘might’ been properly defined as more than a faint or remote possibility, a reasonable probability, a likelihood that harm to the child will result or that the child will be placed in imminent peril.” 28 Kan. App. 2d at 135.

In order to fix what the Sharp court had deemed to be an improper legal standard in the pattern instruction, the Advisory Committee on Criminal Jury Instructions to the Kansas Judicial Council amended PIK Crim. 3d 58.10 to replace the word “might” in the pattern instruction with the phrase “reasonable probability”:

“The defendant is charged with the crime of endangering a child. The defendant pleads not guilty.

“To establish this charge, each of the following claims must be proved:

“1. That the defendant intentionally and unreasonably caused or permitted [a child] to be placed in a situation in which there was a reasonable probability that [the child's] life, body or health would be injured or endangered.” (Emphasis added.) PIK Crim. 3d 58.10 (2000 Supp.).

A few years after PIK Crim. 3d 58.10 was amended to comply with Sharp, the Kansas Supreme Court upheld a conviction for endangering a child in violation of K.S.A. 21-3608(a) in a case where the juiy was given the post -Sharp version of PIK Crim. 3d 58.10. State v. Daniels, 278 Kan. 53, 91 P.3d 1147, cert. denied 543 U.S. 982 (2004). In finding sufficient evidence to support the conviction, the Daniels court acknowledged the post -Sharp version of PIK Crim. 3d 58.10 was the proper legal standard to consider in determining whether a violation of K.S.A. 21-3608(a) had occurred:

“K.S.A. 21-3608 defines the crime of endangering a child as ‘intentionally and unreasonably causing or permitting a child under the age of 18 years to be placed in a situation in which the child’s life, body or health may be injured or endangered.’ In State v. Sharp, 28 Kan. App. 2d 128, 135, 13 P.3d 29 (2000), the Court of Appeals concluded that there must be a reasonable probability that the harm will result or the child wiE be placed in imminent peril. The pattern instruction, PIK Grim. 3d 58.10, which was foEowed in this case, was modified to reflect this standard.” Daniels, 278 Kan. at 72-73.

As in Daniels, it was the post-Sharp PIK Crim. 3d 58.10 instruction that was used in this case to convict Cummings of endangering a child in violation of K.S.A. 21-3608(a):

“The elements of endangering a child are as foEows:

“1. That the defendant intentionaEy and unreasonably caused or permitted [K.H.] to be placed in a situation in which there was a reasonable probability that [K.H.’s] Efe, body or health would be injured or endangered.”

With regard to this instruction, Cummings argues there is a real possibility the jury would have rendered a different verdict if it had more “accurately and thoroughly” defined the phrase “reasonable probability” to mean “something more than a faint or remote possibility” and “a likelihood.”

“ ‘The trial court need not define every word or phrase in the instructions. It is only when the instructions as a whole would mislead file jury or cause it to speculate, that additional terms should be defined. A term which is widely used and winch is readily comprehensible need not have a defining instruction.’ ” State v. Patton, 33 Kan. App. 2d 391, 396, 102 P.3d 1195 (2004), rev. denied 279 Kan. 1009 (2005) (quoting State v. Requena, 30 Kan. App. 2d. 200, 206, 41 P.3d 862 [2001]).

As noted above, Cummings does not claim it was necessary to define “reasonable probability” in terms of a statistical percentage or a measure of balance capable of being gauged in order for the jury to readily comprehend the meaning of the phrase. Instead, Cummings limits her claim of error to the district court’s failure to further define “reasonable probability” in the instruction as “something more than a faint or remote possibility” and “a likelihood.”

There is no merit to Cummings’ claim. First, we find “reasonable probability” to be a risk assessment readily comprehensible to a jury; in other words, a jury would not be misled or confused by tire instruction. Second, we find it redundant to instruct a jury that “reasonable probability” means “more than a faint or remote possibility” and “a likelihood.” Supplementing the instruction with redundant phrases and legalese necessarily works to impede, rather than assist, the jury in executing its duties. Third, our Supreme Court has acknowledged the post -Sharp version of PIK Crim. 3d 58.10 is the proper legal standard to consider in determining whether a violation of K.S.A. 21-3608(a) had occurred.

Affirmed.

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