This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1371
State of Minnesota,
Respondent,
vs.
Jennifer Rae Flint,
Appellant
Filed July 20, 2015
Reversed
Rodenberg, Judge
Polk County District Court
File No. 60-CR-13-1843
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney,
Crookston, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Larkin, Presiding Judge; Rodenberg, Judge; and
Reyes, Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
Appellant challenges her conviction for child neglect, arguing that there was
insufficient evidence to demonstrate that harm to her two young children was more likely
to occur than not when she left the children home alone. We reverse.
FACTS
On August 30, 2013, appellant Jennifer Flint’s neighbor called 911 to report that
he suspected that appellant’s two minor children were home alone. Appellant’s older
child, T.F., was seven years old and her younger child, E.M., was four years old.
Responding Officer Alexander Scott Schilke of the East Grand Forks Police Department
arrived at the apartment at 11:12 p.m. to do a welfare check. He knocked on appellant’s
apartment door for two or three minutes. No one opened the door, but Officer Schilke
could hear the sound of a television through the door. One of appellant’s neighbors came
out of her apartment while Officer Schilke was knocking. She told Officer Schilke that
appellant lived in the apartment, that appellant had two young sons, and that she thought
appellant had gone to a nearby bowling alley. Officer Schilke then radioed his sergeant,
Michael Anderson, asking him to go to the bowling alley to determine if appellant was
there.
Officer Schilke continued to knock on appellant’s apartment door for five to eight
additional minutes. Because appellant’s apartment was on the ground floor, Officer
Schilke then went outside and looked through the exterior sliding-glass door into
appellant’s apartment. He observed that the television was turned off and that the
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bedroom lights that he had earlier observed to be off were now lit. He saw “a young boy
peek through the blinds of the bedroom window and then turn the light off in the
bedroom.” Officer Schilke returned to the interior hallway door to the apartment and
stated “[T.F.], you’re not in trouble come talk to me.” T.F. then opened the apartment
door.
T.F and E.M. had been alone in the apartment. Officer Schilke asked T.F. some
questions, including where T.F.’s mother went and whether she leaves him at home often.
T.F. responded that his mother had left to get pizza and that she sometimes leaves to go
tanning.
During this same time, Sergeant Anderson went to the bowling alley as requested.
There he found appellant seated at the bar with “an alcoholic beverage in front of her and
a stack of pull tabs.” When Sergeant Anderson approached appellant and asked her if she
had left her children at home, she nodded, became upset, and began crying. Sergeant
Anderson testified that appellant “appeared intoxicated.” He “ordered her to return home
immediately.” He left in his squad car and appellant rode her bicycle home. Sergeant
Anderson testified that he did not ask appellant why she was at the bowling alley or what
she was doing there. When Sergeant Anderson reached appellant’s apartment, appellant
had already arrived and was speaking to Officer Schilke.
Sergeant Anderson then asked T.F. whether he knew what to do if there was a fire
(T.F. stated that he did not), if there was anyone in the building to whom he could go if
there was a problem (T.F. stated that he did not know anyone in the building), and if he
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knew how to call 911 (T.F. stated that he did, but said that the pre-paid phone in the
apartment had no minutes on it).
Appellant was neither arrested nor issued any charges on August 30. A child
protection worker visited appellant’s home six days later. She identified no safety
concerns and observed the apartment to be clean and without apparent health or safety
hazards. On September 13, 2013, appellant was charged with two gross-misdemeanor
counts of child endangerment in violation of Minn. Stat. § 609.378, subd. 1(a)(1) (2012),
for the incident on August 30, one count for each child. Appellant moved to dismiss for
lack of probable cause, and the district court denied this motion. Appellant waived her
right to a jury trial and the case was tried to the district court.
T.F. testified at trial that he was in charge of his younger brother on August 30
when his mother left to get pizza. T.F. testified that he was scared when Officer Schilke
was knocking on the door, but that he did not consider calling 911. He testified that
appellant had “just gone out for a minute.”1 He testified that he told Officer Anderson
that he did not know what to do if there was a fire, that he did not know anyone in the
building, and that he knew how to call 911, but that the pre-paid phone did not have any
minutes left. On cross-examination, T.F. testified that he did have friends in the building
at the time of the incident, but he did not say that to the police because he was scared and
nervous. He also testified that if there was a fire, or if his younger brother would have
been injured, he would have called 911.
1
As with much of T.F.’s testimony, he responded affirmatively to a leading question.
4
The state elicited trial testimony concerning potential hazards in the area
surrounding the apartment. Specifically, Officer Schilke testified that there was an
outdoor pool on the apartment’s property, a highway nine blocks away (“the busiest road
in East Grand Forks”), a “busier street” five blocks away, a hotel that places “numerous”
calls to police for “drug charges, domestic charges” six or seven blocks away, and a
trailer court that is “another high drug area of town” located “across the street.”
The state asked Sergeant Anderson at trial whether, in the absence of adult
supervision of these children, life-threatening injury was “likely to happen.” Sergeant
Anderson responded “I don’t know if it’s likely. I think that’s the wrong word to use. It
certainly can happen and I wouldn’t want to see that happen.”
The state also called as a witness at trial the neighbor who had called 911 on the
night of the incident. He observed appellant entering the bowling alley and noticed that
the truck owned by appellant’s younger son’s father was not parked in the apartment
complex lot, as it usually is when appellant is not at the apartment. The neighbor testified
that he was concerned because he saw “what happened with [his] ex-wife and other
people [he] know[s] with young kids,” explaining that his ex-wife had left their children
home alone and that he had called child protection concerning that incident. He also
testified that he saw “random kids sit [outside in a trailer court] with no supervision and
[did not] think it’s right that young kids are out there without supervision.”
The child protection social worker who met with appellant following the incident
testified as a defense witness at trial. She testified that she visited appellant’s home on
September 5, 2013, and that she did not see any safety concerns. She testified that the
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house was well maintained, that the floors were clean and free from clutter, and that she
did not see “any health hazards, anything like that.” She also testified that she consults
Minnesota guidelines for screening reports to assess whether children are old enough to
be left home alone. She testified that when a child is seven years old or younger, she
would “make a report on that,” but also testified that T.F., who was eight years old at
trial, “would . . . [be] capable [of staying home alone now] with the maturity level [she
saw], however if [T.F.] had done some safety planning with mom [she would] be more
comfortable with that.” She also testified that Minnesota guidelines recommend that a
child should be 11 years old to watch another child.
The district court found appellant guilty on both counts. In its findings of fact and
conclusions of law, the district court stated that appellant “willfully deprived [her
children] of necessary supervision appropriate to each respective child’s age” and that
“such neglect was more likely than not to cause substantial harm to both” children. The
district court concluded that “whatever mishaps were to occur with her young fragile
children would rapidly progress to substantially harmful mishaps.” The district court
discussed the “hazards in the nearby neighborhood” and stated that, absent supervision,
“there was no guarantee these two boys would remain in the apartment.” It added:
The Court further finds that failure to [find appellant guilty]
would send a message from this district court that it is not
necessary for any parent, guardian, relative or other caregiver
to supervise children of this age under these circumstances
and further, that children of this age may be left unattended;
the Court is unwilling to convey that message to [appellant]
and/or the public.
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The district court sentenced appellant to two 60-day jail terms to be served
consecutively, stayed for one year, and placed appellant on supervised probation. This
appeal followed.
DECISION
When reviewing sufficiency of the evidence, we thoroughly review the record to
determine whether the evidence establishes guilt beyond a reasonable doubt. See State v.
Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010) (stating that the appellate court reviews
the facts and the legitimate inferences drawn therefrom to decide whether the evidence
supports the guilty verdict). We view facts in the light most favorable to the conviction
and assume the district court “believed the state’s witnesses and disbelieved any evidence
to the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). A conviction may
be reversed if we conclude that the fact-finder acted without due regard for the
presumption of innocence and the necessity of overcoming that presumption by proof
beyond a reasonable doubt.2 State v. Combs, 292 Minn. 317, 320, 195 N.W.2d 176, 178
(1972); see State v. Mytych, 292 Minn. 248, 251-52, 194 N.W.2d 276, 279 (1972) (“[We]
2
We observe that the evidence presented at trial was direct evidence. Despite the parties’
briefing and arguments concerning the heightened circumstantial-evidence standard of
review, we do not apply that standard. See State v. Hokanson, 821 N.W.2d 340, 353 n.1
(Minn. 2012) (“Direct evidence is that which proves a fact without an inference or
presumption and which in itself, if true, establishes that fact.” (Quotation omitted)); State
v. Silvernail, 831 N.W.2d 594, 604 (Minn. 2013) (Stras, J., concurring in part) (defining
circumstantial evidence as “evidence based on inference and not on personal knowledge
or observation [and that b]y definition, the fact-finder must make an inference from . . . in
order to find the ultimate fact . . . asserted by the proponent of the evidence” (quotation
and citation omitted)). All five witnesses at trial testified to what they saw, heard, or
experienced.
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appl[y] the same standard to cases heard before the court . . . as to those heard by a
jury.”).
To convict appellant of child endangerment, the state must prove both that
appellant willfully deprived her children of supervision and that the deprivation was
“likely to substantially harm the child[ren]’s physical, mental, or emotional health.”
Minn. Stat. § 609.378, subd. 1(a)(1). Appellant concedes that she deprived her children
of supervision and challenges only the second element of the charged offense. She
maintains that the evidence at trial failed to prove beyond reasonable doubt that T.F. and
E.M. were likely to be substantially harmed due to the lack of supervision.
Interpreting statutory language presents a question of law that we review de novo.
State v. Perry, 725 N.W.2d 761, 764 (Minn. App. 2007), review denied (Minn. Mar. 20,
2007). In State v. Tice, 686 N.W.2d 351, 352, 355 (Minn. App. 2004), review denied
(Minn. Nov. 16, 2004), we adopted the district court’s conclusion that the child-
endangerment statute’s requirement that the neglect or endangerment be “likely to
substantially harm” a child requires proof that “harm would more likely than not result
from the conduct.”
In Tice, the state appealed the district court’s grant of respondents’ motion to
dismiss for lack of probable cause. 686 N.W.2d at 352. Respondents, parents of three
children (two of them six, and the other eight months), locked their three children in a
parked vehicle in a retail-store parking lot in March when it was seven degrees outside.
Id. The parents went into a retail store. Id. The parents left the vehicle’s engine running
and the heater on, and the children were “appropriately dressed for the weather and they
8
did not appear upset” when approached by police. Id. The parents left the vehicle for
approximately 40 minutes, stating they left the children in the vehicle “because the
youngest child was sleeping, and [the parents] anticipated being in the store for only a
brief time . . . [and they] had admonished the children to stay in the car and not to let
anyone into the car.” Id.
We affirmed the district court’s dismissal of the endangerment charges in Tice,
concluding that “likely to substantially harm” under Minn. Stat. § 609.378, subd. 1(a)(1),
must be construed in the context of the potential consequences that may result from a
defendant’s “acts or omissions.” Id. at 354. In recognizing that we strictly construe
statutes, we concluded that the statute criminalizes negligence. Id. at 354-55. Because
ordinary negligence is presumed insufficient to constitute a crime, “likely” must require
“more than a simple deviation from the standard of care.” Id. at 355. We explained that
“[t]he risk of harm must be greater than being merely within the realm of any conceivable
possibility.” Id. (quotation omitted); see also State v. Grover, 437 N.W.2d 60, 63 (Minn.
1989) (stating that “absent a clear legislative declaration . . . we will interpret any
criminal negligence statute as requiring a showing that the actor’s conduct involved a
gross deviation from the standard of care that a reasonable person would observe in the
actor’s situation” (quotation omitted)). We concluded that “while respondents’ conduct
may have been ill-advised, a clear legislative intent appears to criminalize only conduct
that is more than ordinary civil negligence.” Tice, 686 N.W.2d at 355.
We review the district court’s guilty verdicts in the light most favorable to the
verdicts. See Webb, 440 N.W.2d at 430. The facts are not materially disputed on appeal.
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The state did not prove that there were poisons, cleaners, candles, matches, or other
potentially hazardous materials found in the home the night of the incident. The social
worker also observed no such hazards when she visited appellant’s home six days after
the incident. Correspondingly, appellant does not dispute that there was a swimming
pool on the apartment’s property, that there were busy streets and highways nearby, and
that there were other risks to the children being left alone at night. She also makes no
claim on appeal that the district court clearly erred finding that “there was no guarantee
that these two boys would remain in the apartment.”
But Tice requires that a conviction for child endangerment must be supported by
evidence demonstrating that substantial harm to the children would more likely than not
result from the parental failure, not merely that substantial harm could occur. Stated
differently, the state must prove at least a 51% chance that substantial harm would occur
to sufficiently support guilty verdicts. See Dickhoff by Dickhoff v. Green, 836 N.W.2d
321, 333 (Minn. 2013) (explaining that, as a matter of law, an action against a doctor can
stand only if “the alleged faulty diagnosis [was] more likely than not . . . the cause of the
patient’s injury” and that this could be proved only if the patient’s odds of survival before
the diagnosis was higher than 50 percent).
Sergeant Anderson, who observed the situation and spoke with T.F., testified that
“likely” was the wrong word to use to describe the probability of harm to these children,
instead replying that substantial harm “certainly can happen.” But proof that harm to
children “can happen” does not meet the legal standard required to establish criminal
child neglect and endangerment.
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We think it important to observe that law enforcement and child protection
performed exemplary work here. Law enforcement officers investigated and
appropriately handled the citizen report. They properly focused their attention on the
safety of these children, referred the incident to child protection social workers, and
determined that the children did not need to be removed from their home and that
appellant need not be arrested. The responding social worker properly assessed the home
and found it clean and safe. In concluding that the evidence here is insufficient to sustain
the district court’s verdicts of guilty, we express no disapproval of the actions taken by
law enforcement or child protection involved in this case. These professionals did their
jobs and did them well.
Because Tice requires that a conviction for child neglect or endangerment be
supported by evidence demonstrating that substantial harm is more likely to occur than
not, and the evidence proved at trial does not meet this threshold, we reverse the district
court’s determination and conclude that the evidence at trial failed to prove that
appellant’s lack of supervision of her children was likely to cause substantial harm to
them.
Reversed.
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