Insufficient endangerment instruction clear error

Lydia Krebs won in State v. Cummings, No. 102,527 (Kan. June 28, 2013), obtaining a new trial in a Sedgwick County misdemeanor manslaughter prosecution.  The state charged Ms. Cummings with a death occurring during the misdemeanor offense of child endangerment, which requires a showing that Ms. Cummings 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.  The KSC reviewed its precedent on the child endangerment statute, where it had held that the child endangerment statute was constitutional only if it was construed to only if “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.’” It then applied this precedent to hold that the PIK instruction used in Ms. Cumming's case did not sufficiently convey that requirement:

Accordingly, we hold that, without further clarification, the term “reasonable probability” creates an ambiguity for the jury as to the level of risk that constitutes criminal conduct. The problem associated with this ambiguity is real; a defendant could be convicted based on the jury's misunderstanding of the level of culpability that our endangering a child statute requires. The severity of this problem increases because of hindsight bias and risk distortion. The pattern instruction given, therefore, was not legally appropriate.

The KSC directed that, in child endangerment prosecutions, the following limitation should be included in the jury instruction:

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.

The KSC went on to hold that the insufficient instruction in the instant case was clear error and, therefore, reversed and remanded for a new trial.  In reaching this conclusion, the KSC included some nice discussion of jury risk distortion.

This holding could be important in at least a couple of other areas.  First, the aggravated child endangerment statute does not even include unreasonable risk as a statutory element.  This case may bolster a vagueness challenge to that statute.

Second, there are other statutes that turn on sort of speculative possible outcomes, like aggravated battery where the conviction is based on contact “in any manner whereby great bodily harm, disfigurement or death can be inflicted.”  Practitioners may want to consider vagueness challenges to this statute and/or consider requesting instructions similar to those adopted in Cummings.