2013 VT 51


State v. Amsden
(2012-128)
 
2013 VT 51
 
[Filed 12-Jul-2013]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2013 VT 51 

 

No. 2012-128

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Windham Unit,


 


Criminal Division


 


 


Michele Irene Amsden


November Term, 2012


 


 


 


 


David
  Suntag, J.


 

Kerry A. McDonald-Cady, Windham County Deputy State’s
Attorney, Brattleboro, for 
  Plaintiff-Appellee.
 
Matthew F. Valerio, Defender
General, and Marshall Pahl, Appellate Defender, Montpelier, for
  Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund,
Burgess and Robinson, JJ.
 
 
¶ 1.            
REIBER, C.J.  Defendant appeals convictions on charges of
disorderly conduct and cruelty to a child stemming from her four-year-old son’s
exposure to dangerous and unsanitary conditions under a bridge and defendant’s
disruptive behavior inside a hospital. We affirm both convictions as legally
sound and supported by the evidence.
¶ 2.            
The facts, including relevant testimony from the one-day bench trial,
may be summarized as follows.  In September 2010, police went in response
to a tip to a Brattleboro bridge to perform a welfare check on a four-year-old
child.  Under the bridge, police discovered defendant engaged in an
apparent sexual act with a man while defendant’s son was a few feet away. 
At trial, one of the officers described the area, which was adjacent to a
brook, as “littered with trash, glass, urine, [and] feces.”  Another
officer testified to the presence of “trash everywhere, broken glass, feces
[and] urine.”  The child, who was standing ten feet from the brook beneath
the bridge, was barefoot and wore only soiled shorts.  Consistent with the
officers’ testimony, the trial court found that that there was no impediment of
any sort between the child and the brook.  When the officers arrived, the
child walked some twenty feet to them while defendant continued to engage in
sexual activity without any apparent awareness of her son’s location or the
presence of the officers.  The judge found that only when the officers
directly addressed defendant, telling her to put her shorts on, did she realize
that her son had moved.    While speaking with the officers,
defendant was unsteady, could not maintain her balance, and slurred her words
incoherently.  In response to the officers’ request, defendant
tried unsuccessfully to put shoes on the child and then instead directed him to
a filthy sleeping bag and pillow to go to sleep. 
¶ 3.            
Rather than allowing the child to remain under the bridge, one of the
officers led the child up the embankment toward the parked police
cruisers.  Another officer tried to get defendant to climb the slope, as
well.  According to one officer’s testimony, defendant had difficulty
scaling the slope and at one point called to her son to return and help her. 
Defendant then grabbed the child.  The officers pried the child from
mother, whose grip appeared to hurt him, and took him the rest of the way up
the hill, after which they placed him in another cruiser that took him
away.  At no time did defendant attempt to comfort her son.
 Meanwhile, the officers continued to try to get defendant to the
roadway.  One testified that defendant refused, screaming and throwing
herself to the ground.  The officer testified that she handcuffed
defendant before attempting to climb the hill again because of defendant’s
demeanor.  The trial court found that as defendant attempted to scale the
slope, she stumbled and fell, presumably because of her extreme
intoxication.  
¶ 4.            
After eventually getting to the top of the slope, defendant continued to
argue with police, disobeying commands to approach the roadway, dropping to the
ground and refusing to move.  The trial court found that as defendant went
limp, she hit her head and injured herself.[1]  Officers placed her in the cruiser
and took her to a nearby emergency room.  At the hospital, defendant
refused to get out of the cruiser.  The officers eventually got defendant
into the hospital, where she continued to shout.  The officers placed
defendant in a so-called safe room, designed to keep patients from hurting
themselves or disturbing others.  Defendant repeatedly tried to leave the
room and was eventually handcuffed to the bed.  She banged the bed against
the wall so much that it had to be moved.
¶ 5.            
For a week before these incidents took place, defendant’s son had spent
the night at the home of a woman employed by a preschool program.  The
preschool employee had agreed to care for defendant’s son from time to time
because of defendant’s “circumstances and periodic homelessness.”  The
trial court found that the preschool employee’s apartment was appropriate and
safe for a child.   On the afternoon of the day police performed the
welfare check, the woman had expected to pick defendant’s son up from school to
spend the night at her apartment.  As she was heading to the school, she
happened upon defendant and her son at a local market.  Defendant told the
woman that she wanted her son to spend the evening with her and that they had a
place to stay with a friend.  Police later found defendant and her son
under the bridge.          
¶ 6.            
Defendant was charged with one count of disorderly conduct in violation
of 13 V.S.A. § 1026 and one count of cruelty to a child in violation
of 13 V.S.A. § 1304.  Defendant was convicted on both counts and
timely appealed.  
¶ 7.            
With respect to the disorderly-conduct charge, defendant contends that the
acts alleged were not voluntary because police forcibly removed her from a
location where her intoxication presented no risk of
public inconvenience or annoyance, and placed her in the hospital where her
conduct was allegedly disruptive.  Defendant also argues that her conduct
at the hospital did not constitute “violent and tumultuous” behavior of the
type that would support a conviction for disorderly conduct and that the State
failed to prove she acted with any intent to cause risk of such harm. 
With respect to the child-cruelty charge, defendant maintains that the evidence
adduced fell short of demonstrating the requisite threat to the child’s health
or welfare, that the statute does not criminalize conduct that exposes children
to speculative or minor danger, and that the trial court misconstrued the
applicable mens rea
requirement.  We address each charge and argument in turn.   
¶ 8.            
We review the trial court’s factual findings following a bench trial
under a clear-error standard.  See State v. Godfrey, 131 Vt. 629,
630, 313 A.2d 390, 391 (1973) (“[T]he findings of the lower court must be
affirmed if there is any credible evidence to support them . . . .”);
accord State v. Palmer, 803 N.W.2d 727, 733 (Minn. 2011) (“We use the
same standard of review in bench trials and in jury trials in evaluating the
sufficiency of the evidence.”).  That is to say, “[w]hen considering a
challenge to the sufficiency of the evidence, the Court must determine if the
evidence, viewed in the light most favorable to the State and excluding
modifying evidence, fairly and reasonably supports a finding beyond a
reasonable doubt.”  State v. Vargas, 2009 VT 31,
¶ 18, 185 Vt. 629, 971 A.2d 665 (mem.) (quotation omitted).  As always, we review the trial
court’s legal conclusions, including those related to statutory interpretation,
de novo.  See State v. Therrien, 2011 VT
120, ¶ 9, 191 Vt. 24, 38 A.3d 1129.    
I
¶ 9.            
Defendant first challenges her conviction for disorderly conduct under
13 V.S.A. § 1026, arguing that her presence in the hospital was not
voluntary and that, in any event, her behavior at the hospital was insufficient
to trigger criminal liability under the statute.  
A
¶ 10.         Defendant
asserts that her presence in the hospital, a public place, was not voluntary
and that she cannot therefore be held criminally liable for creating a
disturbance there.  We disagree.  Vermont’s disorderly conduct
statute states in relevant part: “A person who, with intent to cause public
inconvenience, or annoyance or recklessly creating a risk thereof: (1) Engages
in fighting or in violent, tumultuous or threatening behavior . . .
shall be imprisoned for not more than 60 days or fined not more than $500.00 or
both”  13 V.S.A. § 1026.  A defendant may be found guilty of
disorderly conduct based on behavior that occurs during an arrest.  See State
v. Begins, 147 Vt. 45, 47, 509 A.2d 1007, 1009 (1986) (rejecting argument
that once DUI arrestee was placed in a police cruiser, “her actions were no
longer occurring in a public place”); see also State v. Cole, 150 Vt.
453, 554 A.2d 253 (1988) (attempt to grab arresting officer’s flashlight during
arrest sufficient for disorderly conduct where it occurred on a public
roadway).  Similarly, defendants may be convicted of disorderly conduct
based on conduct that occurs after arrest.  State v. Lund, 144 Vt.
171, 174, 475 A.2d 1055, 1058 (1984) (defendant convicted of disorderly conduct
for attempting to bite sheriff’s hand while in sheriff’s office where he was
being processed for driving under the influence), overruled on other grounds
by State v. Begins, 148 Vt. 186, 189, 531 A.2d 595 (1987). 
¶ 11.         Here,
defendant was effectively under arrest.  She had been placed in handcuffs
after police personally observed conditions under the bridge that would give
rise to probable cause to believe that defendant committed an offense of
cruelty to a minor under 13 V.S.A. § 1304.  As we noted above, violent
and tumultuous behavior at a police station would be sufficient to support a
conviction for disorderly conduct.  Arrestees, by virtue of their
detention, are by definition involuntarily held.  In this case,
defendant’s injuries—regardless of their origin—simply necessitated a trip to
the hospital for treatment before going to the police station.  Where
legally sufficient violent, tumultuous, or threatening behavior in an arguably
less public place, such as a sheriff’s office or police station, may support a
conviction for disorderly conduct, then the same behavior within a hospital
must also permit conviction for disorderly conduct.  See Lund, 144
Vt. at 179, 475 A.2d at 1061 (disorderly conduct occurs in a place “open to
common or general use”) (quotation omitted).  Although not controlling, we
have previously affirmed a disorderly-conduct conviction for behavior that
occurred in a hospital examining room that was challenged on other
grounds.  See  State v. Read,
165 Vt. 141, 144, 680 A.2d 944, 946 (1996). 
          
¶ 12.         Defendant
likens her situation to that of a drunk person who is
removed from his home involuntarily and then charged with the crime of public
intoxication.  See Martin v. State, 17 So.2d 427,
427 (Ala. Ct. App. 1944).  We find this argument unpersuasive given our
prior precedent relating to detainees’ and arrestees’ ability to commit
disorderly conduct even once under police control.  Moreover,  defendant’s position differs materially from that of
someone charged with public intoxication.  Under our disorderly conduct
statute, it is not necessary that a defendant voluntarily be present in a
public place, but rather that a defendant voluntarily engage in violent,
tumultuous, or threatening behavior while in a public place.  That is to
say, it is defendant’s behavior and not her condition that is prohibited.
 Under statutes criminalizing public intoxication, a defendant’s mere
presence in public while inebriated—sometimes coupled with other behaviors—is
prohibited.  When a person already intoxicated is transported from a
private location into public, the public-presence element is accomplished
involuntarily.  Here, defendant’s mere presence in a particular place was
not the voluntary act subject to criminal penalty.  Instead, it was her
voluntary behavior in a place that happened to be “open to common or general
use.”  Lund, 144 Vt. at 179, 475 A.2d at 1061. 
Why and how defendant arrived at the hospital is not determinative.  
¶ 13.          The
trial court concluded that, once inside the hospital, defendant recklessly
engaged in behavior that constituted disorderly conduct.  While defendant
might have preferred to remain under the bridge or elsewhere, making her
presence in the hospital and later in jail involuntary, there is no indication that
the behavior alleged to violate the disorderly conduct statute was anything
other than voluntary.   
B
¶ 14.         Defendant
also contends that the evidence failed to establish that her actions were
“violent and tumultuous” or that she recklessly created a risk of public
inconvenience or annoyance.   We conclude that the evidence was
sufficient to support the trial court’s conclusions on these
points.   
¶ 15.         The
relevant portion of the disorderly conduct statute states that a defendant is
guilty when he or she “with intent to cause public inconvenience, or annoyance
or recklessly creating a risk thereof: (1) Engages in fighting or in violent,
tumultuous or threatening behavior.”  13 V.S.A.
§ 1026.  The statute refers to the elements of violence and
tumultuousness in the disjunctive.  Nevertheless, defendant was
specifically charged with “recklessly creat[ing] a risk of public inconvenience or annoyance when she
engaged in violent and tumultuous behavior at the [hospital] [e]mergency [r]oom.  See State v. Aiken, 2004 VT 96, ¶ 11, 177 Vt. 566, 862 A.2d
285 (mem.) (State bound when language in
charging document and accompanying affidavits narrows and specifies conduct
alleged); see also State v. Nichols, 167 Vt. 566, 567, 702 A.2d 77, 78
(1997) (mem.) (surplusage in
disorderly-conduct charging document raises State’s burden).  
      
¶ 16.         In
analyzing the disorderly conduct statute under different circumstances, we have
previously cited dictionary definitions of tumult that include not only “commotion
and agitation of a large crowd” but also a “violent outburst.”  Lund, 144 Vt. at 178-79, 475 A.2d at 1060 (quotation
omitted).  In Lund, an inebriated man who drove to a
sheriff’s office to post bail for a friend became involved in a confrontation with
the sheriff, who, after smelling alcohol on the man’s breath, said he would
process him for driving under the influence.  Id. at 173, 47 A.2d at 1057.  Authorities charged defendant there
with disorderly conduct for behavior that included: (1) replying to questions
with profanity; (2) repeatedly standing back up after being instructed to sit
down while making obscene comments about the sheriff; (3) attempting to bite
the sheriff; and (4) struggling and resisting while being led to the holding
cell.  Id. at 173-74, 47 A.2d at 1058. 
We affirmed the defendant’s conviction.  Although the defendant there did
not challenge the sufficiency of the conduct but rather its capacity to disrupt
the public inside the lightly populated office, it is nevertheless obvious that
we considered his “outburst” to be the sort of “tumultuous behavior”
contemplated by the statute.   Id. at 179, 47
A.2d at 1060-61.  
¶ 17.         Here,
the trial court concluded beyond a reasonable doubt that defendant had
committed each element as charged, basing its decision on the factual findings
we noted above.  Among them:  Police had to physically walk defendant
into the hospital by holding onto her sides and “moving her along.” 
Defendant was so loud and disruptive inside the emergency room that she had to
be placed in the safe room.  Because defendant continued her disruptive
behavior while in the safe room, the hospital staff closed the door to avoid
disturbing people in the emergency room.  Defendant also tried to get by
the officers and leave, after which she was handcuffed to the bed.[2]  After being handcuffed to the bed,
she banged it into the wall with such force that it had to be separated from
the wall to avoid damage.
¶ 18.         Taken
as a whole, this conduct is sufficient to support the trial court’s conclusion
that defendant engaged in criminally tumultuous behavior.  We similarly
conclude that defendant’s behavior, as found by the trial court, constituted
the type of violent comportment criminalized under the disorderly conduct
statute.  As we have previously observed, “[t]he term ‘violent’ [as used
in the statute] contemplates a wide range of inappropriate behavior.”  State v. O’Connell, 147 Vt. 60, 67, 510 A.2d 167, 171
(1986).  In O’Connell, we affirmed the conviction of a
defendant charged with disorderly conduct for “recklessly creat[ing] a risk of public inconvenience by engaging in violent
behavior” when he struck a woman’s arm as she and another woman walked shoulder
to shoulder down the side walk in the direction opposite his.  Id.
at 66, 510 A.2d at 170-71.  The encounter left a
red mark on the woman’s arm.  Id. at 62, 510 A.2d
168.  The defendant in O’Connell maintained that his
behavior was rude, but no more severe than what normally occurs when attempting
to negotiate a crowd.  We held, however, that the defendant’s conduct
satisfied even his own proposed definition of violent, which included not only
“furious, severe, vehement, extreme, [or] intense” behavior but also “unjust or
improper force.”  Id. at 67, 510 A.2d at 171
(quotation omitted).  In Begins, we affirmed a conviction
under § 1026(1) where a defendant, “in addition to yelling and screaming,
. . . kicked and resisted arrest and had to be restrained with
ankle cuffs, handcuffs, and a seatbelt.”  147 Vt. at 47, 509 A.2d at 1008.  Of course, these cases merely
illustrate the type of “violent” conduct previously held sufficient to justify
a conviction under our disorderly conduct statute.  They do not
necessarily prescribe a floor.
¶ 19.         Where
the statute does not specifically define a term, courts resort to the common
understanding of a term.  Carter v. Gugliuzzi, 168 Vt. 48, 52, 716 A.2d 17, 21 (1998). 
The adjective “violent” is defined as, among other things, “[o]f,
relating to, or characterized by strong physical force.”  Black’s Law
Dictionary 1601 (8th ed. 2004).  Another common definition for “violent”
is “[m]oving, acting, or characterized by physical
force, esp[ecially] by extreme and sudden or by unjust or improper
force.”  Webster’s New International Dictionary 2846 (2d
ed. 1961).   The trial court found that defendant repeatedly
tried to leave the room.  Although the trial court did not explicitly find
that defendant did so in an aggressive manner, it is clear that she attempted
to leave with enough insistence and persistence that she had to be handcuffed
to her bed.  While that, in and of itself, might be insufficient to
constitute violent conduct, her behavior once secured certainly did.  The
trial court found that she repeatedly banged the bed into the wall so that it
had to be moved.  Such intense physical behavior, particularly where it
threatened property damage, is sufficient to constitute unjust and improper
force.  Thus, taking the court’s findings as a whole, we are persuaded
that defendant’s behavior was of the sort that the disorderly conduct statute
sought to prohibit in places accessible to the public.
¶ 20.         Defendant
quarrels with the trial court’s conclusion that defendant “maintained a steady
stream of screamed obscenities” while inside the hospital.   Even
assuming that defendant did not engage in an expletive-laced tirade of the sort
the trial court attributed to her, the remainder of the conduct found is supported
by the record and sufficient to support the court’s legal conclusion. 
     
¶ 21.         Finally,
defendant contends that, even if her conduct was both violent and tumultuous,
the State failed to establish that she recklessly created a risk of public
annoyance.  Her argument is two-fold.  On the one hand, defendant
argues that hospital emergency rooms are inherently unruly places, dedicated to
the treatment of patients experiencing acute injuries and distress, and, as a
result, any disruptive violent and tumultuous behavior is neither a public
inconvenience nor annoyance but rather an expected, natural occurrence in a
hospital environment.  On the other, defendant contends that absent any
evidence that defendant was aware of the possibility of creating a risk of
public annoyance, she could not be convicted of
recklessly doing so.
¶ 22.         With
respect to defendant’s first contention, defendant argues essentially that the
standard of behavior demanded by the statute shifts depending on the
context.  Although it may be true that the risk of public inconvenience
and annoyance may vary in relation to the environment, we have rejected a
similar argument with respect to the separate, abusive-language provision of
the same statute.  See Read, 165 Vt. at 141, 680
A.2d at 944.  In Read, we declined to demand that abusive
language directed at a police officer be of a more egregious nature than
language directed at an average citizen to trigger the statute’s sanctions for
fighting words because police officers allegedly receive training to remain
calm in the face of conflict.  Id. at 149, 680
A.2d at 949.  It is noteworthy that in Read, we affirmed a
conviction under the abusive-language portion of the statute for conduct inside
a hospital.  While a hospital emergency room may not necessarily be
tranquil because injured patients may be unable to control their behavior,
there is no reason to suppose that administrators do not strive to make it as
calm as possible.   Here, defendant’s decision to add to the existing
atmosphere of an emergency room by voluntarily engaging in a loud, obnoxious,
and violent course of conduct without reason or medical excuse would itself
create a sufficient risk of additional public inconvenience to sustain
her conviction under the statute. 
¶ 23.         We
also reject defendant’s contention that the State failed to adduce evidence
that would prove defendant was aware that her conduct would create a risk of
public inconvenience or annoyance.  Defendant was charged with recklessly
creating a risk of public inconvenience or annoyance.   Our
disorderly conduct statute is directly based on the Model Penal Code.  See Read, 165 Vt. at 147, 680 A.2d at 948.  We
have expressly endorsed the Model Penal Code’s definition of recklessness,
which states:
A person acts
recklessly with respect to a material element of an offense when he consciously
disregards 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 purpose of the actor's conduct and the
circumstances known to him, its disregard involves a gross deviation from the
standard of conduct that a law-abiding person would observe in the actor’s
situation.
 
State v.
Brooks, 163 Vt. 245, 251, 658 A.2d 22, 26 (1995) (quoting State v.
O'Connell, 149 Vt. 114, 115 n. 1, 540 A.2d 1030, 1031 n. 1 (1987) (quoting
Model Penal Code, § 2.02(c))).  The qualitative nature of the risk, that
is to say, whether the risk is “substantial and unjustifiable” in light of the
nature, purpose and circumstances of a defendant’s conduct, is measured from an
objective standpoint.  See id. at 251, 658
A.2d at 26-27.  Whether a defendant actually perceives
that risk, however, is a subjective inquiry.  Id. 
 (“Recklessness requires a conscious disregard of [the] risk.”).  The
trial court characterized the risk of public inconvenience from defendant’s
actions as “substantial and unjustifiable,” a conclusion based, in part, on the
fact that the disturbance occurred in a place where ill and injured people seek
medical treatment.  From an objective standpoint, it is reasonable to
conclude, as the trial court apparently did, that any additional, and
unnecessary physical outbursts would further distress vulnerable patients and
risk distracting staff in its attempt to provide professional care. 
 We agree also that if defendant was, in fact, subjectively aware of this
risk and behaved in this fashion that that behavior would constitute “a gross
deviation from the standard of conduct that a law-abiding person would observe
in the [same] situation.”  Brooks, 163 Vt. at 251, 658 A.2d at 26.     
¶ 24.         We
conclude that the trial court also properly analyzed defendant’s subjective
awareness of that risk, as required for the mens rea of recklessness.  The trial court characterized
the risk of public annoyance and inconvenience as “a risk about which any
person would have been aware.”  The trial court then concluded that “[d]efendant’s ignoring of that substantial risk was consequently
a gross deviation from the standard of conduct that any law abiding person
would have observed under the same circumstances.”  Although the trial
court did not expressly state that defendant was subjectively aware of the risk
her behavior created, it is obvious that the trial court concluded that she
was.  First, the trial court noted that “any person would have been
aware” of the risk; it did not say that anyone should have been aware as
the court would have if it were merely applying the lesser criminal-negligence
standard.  Coupled with trial court’s conclusion that “defendant’s
ignoring” of the risk, which implies an active disregard rather than a mere
unawareness, was a gross deviation from a reasonable standard of conduct, it is
plain that the trial court believed that defendant was aware of the risk of
disturbance created by her behavior.
¶ 25.         Contrary
to defendant’s assertion, the State presented more than enough circumstantial
evidence to conclude beyond a reasonable doubt that defendant was conscious of
the risk.   See Cole, 150 Vt. at 456, 554 A.2d at 255  (“Intent is rarely proved by direct evidence; it
must be inferred from a person’s acts and proved by circumstantial evidence.”);
cf. Farmer v. Brennan,  511 U.S. 825, 842  (1994) (holding in
applying criminal law recklessness standard to Eighth Amendment violations that
fact finder may infer subjective knowledge of a risk from circumstantial
evidence and that such an inference is permissive, not mandatory).  As we
have observed, the conduct giving rise to the criminal liability is confined to
that which was charged.  Thus, in this case, the actions that may
constitute the basis for the disorderly conduct conviction are those that
occurred inside the hospital.  Defendant’s conduct
during the events leading up to the hospital visit, however, are
probative with respect to her mental state at the time of the alleged
disorderly conduct.   The trial court found that, upon arrival at the
hospital, defendant refused to get out of the police cruiser for
treatment.    One of the police officers who brought defendant
through the emergency room as she continued to resist testified to observing
medical staff, meaning that the trial court could reasonably conclude that  defendant’s ongoing outbursts had the potential
to disrupt patient care.  The other officer testified that defendant’s
screams and shouting echoed throughout the emergency room.  The same
officer testified that defendant went limp outside the door to the safe room
and officers had to drag her in and up onto the bed.  The officers
testified that defendant’s behavior inside the hospital was largely a
continuation of disruptive and combative conduct in which she had engaged while
being transported and since her encounter with the police under the
bridge.  On the basis of this testimony, and defendant’s continuing
conduct once inside the so-called safe room, the trial court could reasonably
infer that defendant was aware of the substantial and unjustifiable risk of
public inconvenience or annoyance created by her behavior and thus consciously
disregarded it.  We therefore affirm defendant’s conviction for disorderly
conduct.
II
¶ 26.         Defendant
also appeals her conviction for cruelty to a child.  Defendant argues that
the evidence did not support the trial court’s conclusion that the environment
under the bridge was dangerous and unhealthy, but instead proved a speculative
risk of harm that is insufficient as a matter of law to establish criminal
liability under 13 V.S.A. § 1304.[3] 
Defendant also contends that the court erred in its application of the
requisite mens rea.
 We disagree. 
¶ 27.          Criminal
cruelty to a child under the relevant statute occurs when:
 
[a] person over the age of 16 years, having the custody, charge or care of a
child under 10 years of age, who willfully assaults, ill treats,  neglects or abandons or exposes such child, or causes
or procures such child to be assaulted, ill-treated, neglected, abandoned or
exposes, in a manner to cause such child unnecessary suffering, or to endanger
his or her health . . ..
 
13
V.S.A. § 1304.  Defendant was specifically charged with violating
this statute by “willfully caus[ing]
[her son] to be neglected or exposed in a manner to endanger his health.” 

¶ 28.         Defendant
first disputes the trial court’s conclusions that the environment was dangerous
and unhealthy and that defendant’s son was left unsupervised.  Based on
the officers’ testimony, the court concluded that the area adjacent to the
bridge abutment was “by any observable standard dangerous and unhealthy for any
child, especially one who was not yet five years of age.”  The court’s
findings with regard to the lay-out of the area around the bridge and its
physical condition are factual and, thus, subject to a deferential standard of
review.  See Vargas, 2009 VT 31, ¶ 18.  We conclude that the
record contains more than enough evidence to establish that the bridge abutment
was, in fact, “dangerous and unhealthy.”  
¶ 29.         As
the officers testified, the area contained broken glass, feces, and
urine.  The area also was directly adjacent to a brook, access to which
was unimpeded by any protective barrier.  The officers testified that,
when they arrived, the child was without a shirt and barefoot.  The
officers testified that defendant did not notice their approach or that her
child had wandered away; instead her attention remained fixed on her
companion.  Even if defendant had been aware of her child’s movements in
this obviously dangerous area, the trial court concluded she would have been
unable to assist him, if needed, because of her inebriation.  This was a
conclusion based on testimony of the officers, who indicated that defendant was
so intoxicated that she was unsteady and incapable of even placing shoes on the
child’s feet.   Because defendant did not and could not adequately
supervise her son in this environment filled with potential hazards, it was
reasonable for the trial court to conclude that it was, in fact, a dangerous
and unhealthy area and a dangerous and unhealthy situation. 
   
¶ 30.         Defendant
nevertheless argues that that danger constitutes merely a speculative risk of
harm not covered by the statute.[4] 
More specifically, defendant argues that the risk of injury and the severity of
any potential harm were too low to be considered criminal under the
statute.  Again, we cannot agree.  
¶ 31.         Whether
the conduct is legally sufficient to trigger criminal liability is a question
of statutory interpretation that we review de novo.  See Therrien, 2011 VT 120, ¶ 9.  Subject to
proof of certain other elements, the statute criminalizes willful neglect or
exposure of a child in a defendant’s care “in a manner . . .
to endanger his or her health.”  13 V.S.A. § 1304. 
“Endanger” means “to put to hazard; to bring into danger or peril.” Webster’s
International Dictionary 843 (2d. ed. 1961); see also Webster’s New Collegiate
Dictionary 375 (1977).  “Danger,” in turn, refers to “exposure or
liability to injury, pain, or loss.”  Webster’s New Collegiate Dictionary
at 287 (offering—appropriately—the usage example “a place where children could
play without [danger]”).  We therefore conclude that “the term refers to a
potential or possibility of injury. The term does not refer to conduct that
will result or actually results in harm, but rather to conduct that could or
might result in harm.”  People v. Collins, 824
N.E.2d 262, 266 (Ill. 2005).  Here, the trial court found that the
location under the bridge was inherently dangerous because it contained, among
other hazards, broken glass and feces and an easily accessible brook.  The
threat to the child’s health was sufficiently concrete.  The risk, which
might include everything from lacerations to infection to drowning, also was
sufficiently severe.  We have no difficulty agreeing with the trial
court’s conclusion that defendant endangered the child by bringing him to this
dangerous place and then ignoring him.    
    
¶ 32.         With
respect to the mens rea
requirement, defendant is partially correct in her assertion that the trial
court erred in its statutory analysis.  The court relied on its own
grammatical analysis and our holding in In
re Greenough, 116 Vt. 277, 75 A.2d 569 (1950), to
conclude that only defendant’s actions in exposing or neglecting her child
needed to be willful and that the result of those actions—that a child’s health
be endangered or that a child suffer unnecessarily—was a wholly separate
“element” of the crime apparently not subject to any requisite level of
criminal intent.[5] 
Nevertheless, the trial court also concluded beyond a reasonable doubt that, if
knowledge were a requirement, defendant was aware of the conditions that
endangered her child.  It is on this latter basis that we
affirm.       
¶ 33.          Under
the relevant portion of the statute, a person is guilty of cruelty to a child
when she “willfully . . .  neglects
. . . or exposes such child . . . in a manner to endanger
his or her health.”   13 V.S.A. § 1304. 
As defendant properly notes, the latter portion is an adverbial phrase,
modifying the act of neglecting or exposing a child.  An adverbial phrase:

describes a verb, an adjective, or adverb. To find out if a
prepositional phrase is functioning as an adverbial phrase, see if it answers
one of these questions: “Where?” “When?” “In what manner?” “To what extent?”    

 
In re Arnold,
471 B.R. 578, 602 (Bankr. C.D. Cal. 2012)
(quoting Rozakis, English Grammar for the Utterly
Confused 103 (2003)).  As such, it is not an unrelated element but
rather one that must be understood in relation to the verbs it modifies: 
It therefore defines the manner or scope of neglect or exposure that
constitutes the proscribed conduct.  The phrase “in a manner to endanger”
can have no meaning independent of the verbs it modifies in this statute. 
Nor can the verbs as used in this statute be understood without reference to
the modifying phrase.  See United States v. Ron Pair Enterprises,
489 U.S. 235, 241 (1989) (interpretation of statute “mandated by the
grammatical structure”).  The proscribed act, then, is not simply
neglecting or exposing; it is neglecting or exposing in a specific manner: in a
manner to endanger the child’s health or welfare.  To trigger criminal
liability, the mental state that must accompany this unitary act is
willfulness.  See Flores-Figueroa v. United States, 556 U.S. 646,
650 (2009) (noting that “[a]s a matter of ordinary English grammar, it seems
natural to read [a] statute’s [mens rea element] ‘knowingly’ as applying to all the
subsequently listed elements of the crime”); see also United States v. X-Citement Video, Inc., 513 U.S. 64 (1994); Liparota v. United States, 471 U.S. 419
(1985).         
¶ 34.         That
is not to say, however, as defendant urges, that the statute criminalizes only
acts the conscious object of which are to endanger or harm a child.  We
have long acknowledged that willful conduct is, at a minimum, conduct
undertaken “intentional[ly] and by design, as
distinguished from that which is thoughtless or accidental.”  Town of
Fletcher v. Kezer, 73 Vt. 70, 70, 50 A. 558, 558
(1901); see State v. Parenteau, 153 Vt. 123,
127, 569 A.2d 477, 480 (1989) (standard of willful conduct satisfied when
conduct undertaken “consciously and purposefully”).  As a logical matter,
to intentionally and designedly—or consciously and purposefully—expose or
neglect a child in a manner that endangers that child, a defendant must have
some knowledge of those dangerous conditions.  See Flores-Figueroa,
556 U.S. at 650 (“Would we apply a statute that makes it unlawful ‘knowingly to
possess drugs’ to a person who steals a passenger’s bag without knowing the bag
has drugs inside?”).  We conclude that it is sufficient that a defendant
consciously and purposefully cause a child to be exposed to conditions that she
knows endanger his health.  Accord People v. Jordan, 843 N.E.2d
870, 879 (Ill. 2006) (state “required to prove that defendant knew he was
endangering the life or health of his child when he left her alone in his
vehicle” when defendant charged with willfully causing or permitting a child to
be endangered).     
¶ 35.         Here,
there was ample evidence to support the trial court’s inference that defendant
was subjectively aware of the hazards present under the bridge and then exposed
her son to them.  Chief among them, the trial court observed that the
conditions were apparent and obvious to anyone.  There is no suggestion
that defendant accidentally or thoughtlessly took her son to an area she knew
to be dangerous.  The trial court could reasonably conclude on the basis
of the evidence that defendant willfully caused her son to be neglected in a
manner to endanger his health.   
      
¶ 36.         Defendant
asserts that to affirm her conviction on the basis of this record would mean
that “every parent who inadvertently allows a child to wander twenty feet
barefoot in an area where there may be some hazards on the ground would be
subject to prosecution.” This argument is premised on an inaccurate description
of the alleged criminal conduct, which was much broader than what defendant
recites.  The State did not allege, and the trial court did not conclude,
that defendant “inadvertently allow[ed]” her child to
wander in a potentially hazardous area.  Rather, the trial court found not
only that defendant deliberately brought her child to the bridge—despite
previous arrangements for him to remain in the care of another adult in a safe
environment—but also that defendant did so with the knowledge that the area was
unsanitary and hazardous.  At some point, defendant became so intoxicated
that she could not properly supervise him.   While at the bridge, she
was so engrossed in a sexual liaison that she did not realize her son had
walked off toward the police.  Nor does defendant’s characterization of
the environment as one “where there may be some hazards on the ground”
accurately jibe with the conditions under the bridge.  Glass, feces and
trash littered an area adjacent to a brook to which her young child had
unfettered access.  Thus, our conclusion that defendant’s conduct
satisfies the requirements of 13 V.S.A. § 1304 is not based on behavior that is
mere inadvertence or exposure to a vague, unforeseeable hazard.  Moreover,
defendant’s own argument with respect to the applicability of the requisite mens rea contradicts the notion
that our holding will lead to limitless prosecutions of hapless parents.
 In this case, the child-endangerment statute was applied to defendant’s
specific course of willful conduct, which posed a real, immediate danger to the
child’s welfare. 
Affirmed.
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Chief
  Justice

 





[1]
 There is disagreement regarding how defendant sustained the injury, but
determining its origin has no bearing on the resolution of this case.  


[2] 
Defendant correctly notes that the trial court did not make the explicit
findings that the State on appeal urges with respect to the allegedly violent
nature of defendant’s conduct during her attempt to leave the room.  
Although the testimony would have supported the findings upon which the State
relies in its briefs, the trial court did not make them.  For purposes of
this appeal, we consider only those findings made by the trial court.  
 


[3]
 The trial court’s order erroneously refers to 13 V.S.A. § 1305.  The
statute regarding child cruelty, as charged here, is 13 V.S.A. §
1304.   


[4]
 We decline to consider the State’s argument—raised for the first time on
appeal—that this Court should consider whether defendant caused the child
“unnecessary suffering” rather than endangering his health.  
Defendant was charged with conduct that caused the child “to be neglected or
exposed in a manner to endanger his health.” When specific conduct is alleged
in the charging document, the State is bound by those allegations.  State
v. Kolibas, 2012 VT 37, ¶ 14, 191 Vt. 474, 48 A.3d 610.  


[5]
 As we explain below, the portion of the statute relating to “danger”
refers to a manner of exposing or neglecting and not a specific result.  



