Saturday, August 13, 2016

Must know about a child to disregard substantial risk of injury to child

 Christina M. Kerls won in State v. Herndon, No. 112,479 (Kan. App. July 15, 2016), reversing a Neosho County aggravated endangerment of a child conviction. Mr. Herndon contended that he could not have acted recklessly with regard to a child because there was no evidence that he knew a child was in the back of a truck into which he was alleged to have discharged a firearm. The COA acknowledged the deferential standard of review, but agreed after review of the facts in the record:

It suffices to say that we simply find a dearth of evidence to support the notion that Herndon was aware of the child's presence in the truck. It is hard to imagine how Herndon consciously disregarded the risk to a child he had no reason to think was there.

 Further, under the standard for recklessness the risk to be avoided must be substantial. There is always the risk that shooting a .22 rifle at a moving vehicle could cause grave injury or death to an occupant of the vehicle. But under this statute there must be a substantial risk, which the defendant disregarded, that the vehicle had a child occupant. The defendant's actual knowledge of a child's presence would, of course, be sufficient to show a substantial risk. But circumstances establishing the strong likelihood of a child's presence would also satisfy the "substantial risk" component of the statute, so long as a child was, in fact, endangered.

Shooting a firearm in the direction of a child daycare center at 10 a.m. on a school day carries with it the substantial risk of injury to a child. But the same cannot be said if the shot is fired at a daycare center building at midnight. The chance of a child being 11 present at that hour is remote at best. In any event, the likelihood of a child being injured by a shot fired at midnight certainly would not be substantial so as to satisfy this element of the crime.

Herndon's conduct was certainly unjustifiable and a gross deviation from any reasonable standard of care. But there is no evidence that it was done in conscious disregard of a substantial risk of injury to a child occupying the truck.

Because there was insufficient evidence to support the charge, the COA reversed the conviction and sentence for aggravated endangerment of a child. The COA affirmed several remaining convictions.

[Update: the KSC denied the state's PR and the mandate issued on October 23, 2017.]


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