Beverly Annetta Hall v. State of Maryland, No. 50, September Term, 2015. Opinion by
Battaglia, J.

CRIMINAL LAW – CHILD NEGLECT STATUTE – SUFFICIENCY OF THE
EVIDENCE – The evidence presented in the circuit court, even when viewed in a light
most favorable to the State, was not sufficient to support Petitioner’s conviction under the
criminal child neglect statute. Section 3-602.1 of the Criminal Law Article requires that
the parent’s conduct be such that it creates a substantial risk of harm to the physical
health of the child and that a reasonable parent would not engage in such conduct.
Circuit Court for Montgomery County,
Maryland
Criminal Case No. 122148
Argued: January 11, 2016

                                               IN THE COURT OF APPEALS

                                                       OF MARYLAND

                                                               No. 50

                                                 September Term, 2015
                                       ______________________________________

                                                BEVERLY ANNETTA HALL
                                                                 v.
                                               STATE OF MARYLAND
                                       ______________________________________

                                              Barbera, C.J.,
                                              *Battaglia,
                                              Greene,
                                              Adkins,
                                              McDonald,
                                              Watts,
                                              Hotten,
                                                         JJ.
                                       ______________________________________

                                                 Opinion by Battaglia, J.
                                          Barbera, C.J. and McDonald, J., concur
                                           Greene, Watts, and Hotten, JJ., dissent
                                       ______________________________________

                                                      Filed: June 23, 2016
                                       *Battaglia, J., now retired, participated in the
                                       hearing and conference of this case while an active
                                       member of this Court; after being recalled pursuant
                                       to the Constitution, Article IV, Section 3A, she also
                                       participated in the decision and adoption of this
                                       opinion.
         This case concerns Maryland’s criminal child neglect statute, Section 3-602.1 of

the Criminal Law Article, Maryland Code (2012 Repl. Vol.), which defines “neglect” as

“the intentional failure to provide necessary assistance and resources for the physical

needs or mental health of a minor that creates a substantial risk of harm to the minor’s

physical health or a substantial risk of mental injury to the minor.”1 The statute carries a

penalty of “imprisonment not exceeding 5 years or a fine not exceeding $5,000 or both.”

Maryland Code (2012 Repl. Vol.), Section 3-602.1(c) of the Criminal Law Article.

1
    Section 3-602.1 of the Criminal Law Article provides:
          (a)(1) In this section the following words have the meanings indicated.
             (2) “Family member” has the meaning stated in § 3-601 of this
             subtitle.
             (3) “Household member” has the meaning stated in § 3-601 of this
             subtitle.
             (4) “Mental injury” means the substantial impairment of a minor's
             mental or psychological ability to function.
             (5)(i) “Neglect” means the intentional failure to provide necessary
             assistance and resources for the physical needs or mental health of a
             minor that creates a substantial risk of harm to the minor's physical
             health or a substantial risk of mental injury to the minor.
                (ii) “Neglect” does not include the failure to provide necessary
                assistance and resources for the physical needs or mental health
                of a minor when the failure is due solely to a lack of financial
                resources or homelessness.

         (b) A parent, family member, household member, or other person who has
         permanent or temporary care or custody or responsibility for the
         supervision of a minor may not neglect the minor.

         (c) A person who violates this section is guilty of the misdemeanor of child
         neglect and on conviction is subject to imprisonment not exceeding 5 years
         or a fine not exceeding $5,000 or both.

         (d) A sentence imposed under this section shall be in addition to any other
         sentence imposed for a conviction arising from the same facts and
         circumstances unless the evidence required to prove each crime is
         substantially identical.
         Beverly Annetta Hall, the Petitioner, had been convicted by a jury in the Circuit

Court for Montgomery County of neglect of her minor son and was sentenced to twenty

days’ incarceration. Ms. Hall appealed the judgment of the Circuit Court to the Court of

Special Appeals, arguing that the definition of “neglect” contained in Section 3-

602.1(a)(5)(i) of the Criminal Law Article was unconstitutionally vague and that the

evidence was insufficient to support her conviction. The Court of Special Appeals

affirmed the judgment of the Circuit Court, and we granted certiorari to address the

following questions:

         1. As an issue of first impression, is Md. Code Ann., Crim. Law § 3-602.1,
         the criminal neglect of a minor statute, unconstitutional because it is vague?

         2. Was the evidence sufficient to support conviction for neglect of a minor?

Hall v. State, 444 Md. 638, 120 A.3d 766 (2015). For the reasons that follow, we assume,

without having to decide, that the criminal neglect of a minor statute is constitutional but

reverse the judgment of the Court of Special of Appeals, because we hold that the

evidence was insufficient to support Hall’s conviction for criminal child neglect.

         Early in 2013, Beverly Hall was charged by criminal information in the Circuit

Court for Montgomery County with one count of neglect of her minor son A.,2 in

violation of Section 3-602.1 of the Criminal Law Article,3 ostensibly for having, over a



2
    We shall refer to Hall’s minor children by their first initials only.
3
    Section 3-602.1 of the Criminal Law Article provides, in relevant part:
          (a)(1) In this section the following words have the meanings indicated.
                                               ***
          (5)(i) “Neglect” means the intentional failure to provide necessary
          assistance and resources for the physical needs or mental health of a minor

                                               2
two day period, beginning on February 24 and ending on February 26, 2012, left A. under

the supervision of his fourteen-year-old sister, D. Ms. Hall filed a motion to dismiss the

charge, arguing, among other things, that Section 3-602.1 was unconstitutionally vague,

because the statute “fail[ed] to inform the ordinary person what conduct is prohibited by

its enactment[,]” and “fail[ed] to delineate at which point personal parenting choices

escalate to neglect, [leading] to arbitrary and discriminatory enforcement.” The motion

was denied orally by the circuit court judge who remonstrated that Section 3-602.1 of the

Criminal Law Article contained an “awful broad definition of neglect,” but determined

that it was not vague:

       I understand the argument, and I understand what the defense is saying
       here and I guess the bottom line is you may win this argument upstairs. I
       don’t know, but I’m not going to – I just don’t find it to be void for
       vagueness… I’m not going to find that the statute is void for vagueness.
       You know, that’s something the Court of Special Appeals is going to have
       to do.

       The evidence subsequently adduced at trial, taken in the light most favorable to the

State,4 reflected that in the Fall of 2011, Ms. Hall, her fiancé, and three children—two

daughters, thirteen-year-old D. and ten-year-old M., and a son, three-year-old A.—were

       that creates a substantial risk of harm to the minor's physical health or a
       substantial risk of mental injury to the minor.

       (ii) “Neglect” does not include the failure to provide necessary assistance
       and resources for the physical needs or mental health of a minor when the
       failure is due solely to a lack of financial resources or homelessness.
4
  We have stated that, when reviewing a conviction to determine the sufficiency of the
evidence, “the critical inquiry on review of the sufficiency of the evidence to support a
criminal conviction is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Smith v. State, 415 Md. 174, 184, 999 A.2d 986, 991
(2010), quoting Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)

                                            3
living in a single family home on Lima Drive in Silver Spring, Maryland. Nyree Wannall,

a licensed clinical social worker with Montgomery County Child Welfare, had been

providing services to Ms. Hall’s family since May of 2011.5 Ms. Wannall would perform

home visits with Ms. Hall and her family two times monthly, except during the children’s

summer vacation when all three visited their maternal grandmother in Florida.

         Based on Ms. Wannall’s observations during her home visits, three-year-old A.

“ran rampant[,]” “was very, very difficult to control[,]” and was “very active.” Ms.

Wannall described A.’s behavior as: “[y]ou would be there during a home visit, and he

would pick up something, and it wouldn’t be surprising if he picked something up and

threw it at his sister, or threw it at the TV, and just was always moving.” During one of

Ms. Wannall’s home visits in September of 2011, A. threw a bottle at his sister’s face,

threw a bottle at the T.V., and bit Ms. Wannall’s foot. He then opened the closed front

door of the residence, ran outside, and entered the truck of a postal worker who was in

the neighborhood, all during the time his mother was present. D., A.’s sister, retrieved A.

from the mail truck, and Ms. Hall did not attempt to control or discipline A. during this

episode.

         During Ms. Wannall’s home visits, she would meet with Ms. Hall and the children

and would discuss “issues that may have come up with the individuals in the house[.]” A

recurring issue raised during Ms. Wannall’s discussions with Hall was that “[D.] needed

to spend her time on her studies in school, needed to be a child and not have as many

responsibilities in the home[,]” and “[D.] having too many responsibilities with [A.]” By

5
    The reasons for Ms. Wannall’s involvement with Hall’s family were not disclosed.

                                             4
February 15, 2012, Ms. Hall had agreed with Ms. Wannall that “[A.] was too difficult for

[D.] to watch[,]” and that she “would only allow [D.] to watch [M.], her younger sister.”

      During the afternoon of Wednesday, February 22, 2012, D. (now fourteen years of

age) and M. had finished the school day and went to A.’s babysitter to pick him up. After

bringing A. home, D. was upstairs doing her homework, but came downstairs to find that

the front door was open and A. was missing; Ms. Hall was not present at 4:30pm that

day, Officer Jim Walsh, responding to a call at a different location, found A. without

supervision, wearing only a t-shirt and a diaper, whereupon the Officer went looking for

A.’s parents. D. and M. approached Officer Walsh and stated that they “didn’t know [A.]

got out.” Officer Walsh then brought A. back to the house on Lima Drive and retrieved

Hall’s phone number from D. and attempted to call Ms. Hall “at least five” times. He was

unable to contact her, and did not recall whether he had left any voicemail messages but

left A. under the supervision of D. Ms. Wannall learned of this incident the following

day, on February 23, 2012, but did not contact Ms. Hall, as she did not want to interfere

with any investigation that might be triggered by Officer Walsh reporting the incident to

Child Protective Services.

      According to D., A.’s escape from the home on February 22nd was the third time

that she had gone to the playground to retrieve him while he was under her supervision.

On a previous occasion, although police had been notified, D. was able to retrieve A.

before the police arrived at the playground. The police did follow-up, and came to the

house on Lima Drive and instructed D. to have Ms. Hall contact them. D., however, did




                                            5
not inform Ms. Hall of any of these occasions on which A. had escaped to the

playground.

        On Friday, the 24th of February, Ms. Hall and her fiancé attempted to bring the

children to their godmother’s home in Prince George’s County, where the children would

spend the weekend. Ms. Hall, however, was unable to locate the godmother and returned

home.

        Once home, the children unpacked their belongings, placed some food in the

refrigerator, and got ready for bed by taking baths and changing into their “night clothes.”

Ms. Hall did not tell the children where she was going or how long she would be gone,

but left an emergency cell phone with D. and told her to call if she needed anything. Ms.

Hall also told D. that she would call her “when she [got] to her destination, because she

[had] to charge her phone.” Ms. Hall and her fiancé then left at around 10:00 or 11:00

p.m., and D. locked the door behind them.

        Following Ms. Hall’s departure, the children began watching a movie in the living

room. While watching the movie, A., M., and ultimately D., fell asleep. D. then awoke

between midnight and 1:00 a.m. to find that A. was no longer on the couch. D. searched

the house for A. to no avail and noticed that the front door to the residence was open. D.

attempted to call Hall three to four times, but each of the calls went straight to voicemail.

D. also called the fiancé, whose phone number was programed in the emergency phone,

but no one answered. D. thought she heard someone pick up on one of them but the

person on the other line hung up shortly thereafter.




                                             6
       After failing to reach her mother, D. called the police and searched the

neighborhood, while M. stayed at the house. After D. returned without having found A.,

she made several additional calls to the police. Two police officers, including Officer

Rodney Campbell, arrived around 2:30 am and informed D. that they had found A.

       Shortly after 2:00 a.m., Officer Campbell had responded to a call at the

intersection of New Hampshire Avenue and Hollywood Avenue (located some 300 to

400 yards from Ms. Hall’s home) and encountered a gentleman pulled over on the side of

the road. The man explained to Officer Campbell that he had a baby in his car and that he

had almost struck the child, who had been in the middle of the six lane roadway. The

child was dressed only in sweatpants and a t-shirt. Officer Campbell, after determining

the child’s name was A., contacted other officers and gave out A.’s name and asked

whether any of the officers “had dealt with the child before.” Officer Walsh, who had

come across A. earlier that week, arrived at the intersection and led Officer Campbell to

A.’s home.

       After the officers arrived at A.’s home, they attempted to call both Ms. Hall and

her fiancé, but were unable to reach either of them. The officers then took the children,

including A., to the police station where the officers again were unsuccessful in

contacting Ms. Hall. As a result, the officers contacted Child Protective Services (“CPS”)

and Laura Erstling, the on-call social worker with the Montgomery County Department

of Health and Human Services, Child Welfare Service Program, arrived at the police

station around 3:30 a.m. Ms. Erstling instructed the officers to leave a note on the door of

the home telling Ms. Hall how to reach her and how to get in touch with the children. Ms.


                                             7
Erstling attempted around 4:00 a.m. to contact Ms. Hall, but was not successful and left a

voicemail detailing who she was and how Ms. Hall could reconnect with her children.

         Having had no success contacting Hall, Ms. Erstling drove the children to an

emergency foster home at 7:30 a.m. Ms. Hall called Montgomery County Child

Protective Services at 10:20 am on the morning of February 25, 2012 “to inquire about

the whereabouts of her children.”

         Ms. Hall then was charged with one count of criminal child neglect in the Circuit

Court for Montgomery County. After an initial trial in which the jury had failed to reach

a unanimous verdict, the State retried Ms. Hall. A second jury did convict Ms. Hall, after

which the Judge imposed a sentence of 20 days’ incarceration. Ms. Hall then noted an

appeal to the Court of Special Appeals.

         On appeal, Ms. Hall contended that Section 3-602.1 of the Criminal Law Article

was void for vagueness and that the evidence was insufficient to support her conviction.

The Court of Special Appeals, in an unreported opinion, Beverly Annetta Hall v. State of

Maryland, September Term, 2013, No. 2473 (April 21, 2015), affirmed.

         The court determined that the statute was “not vague as applied to the facts of the

instant case” because “[Hall] was fully aware that D[.] was not a proper caregiver for

A[.]”:

         A reasonably intelligent person would not have to speculate whether
         leaving a three year-old alone with an improper caregiver for any length of
         time, much less overnight, and without an effective way to be contacted in
         case of an emergency, would constitute neglect as defined in the statute.
         The statute is not vague as applied to the facts of the instant case.




                                              8
Id. at 9. The Court of Special Appeals also rejected Hall’s argument that she was

inadequately notified of conduct that could violate the statute:

       The risk of harm to such a young child, especially one who is “very, very
       difficult to control,” is not limited to the harm that might come from the
       child exiting the house and wandering outside unsupervised. There are any
       number of injuries that could foreseeably result from knowingly leaving an
       improperly supervised and rambunctious three year-old inside the home as
       well. [Hall] saw the child throw a dangerous object at people in the home
       and bite Ms. Wannall on the foot. [A.] also ran out of the house on the day
       Ms. Wannall was meeting with [Hall] for a home visit. Certainly [Hall]
       knew or should have known that [A.] could and did leave the house on his
       own.

Id. at 10-11.

       Concerning sufficiency of the evidence, the intermediate appellate court observed

that an appellate court must “‘view[] the evidence, and all inferences fairly deducible

from the evidence, in a light most favorable to the State.’” Id. at 18-19, quoting Twine v.

State, 395 Md. 539, 554, 910 A.2d 1132, 1141 (2006). The Court then remonstrated that

Ms. Hall was present on at least one occasion where A. ran out of the house, and Ms. Hall

had agreed that D. should not be responsible for A.’s supervision. Furthermore, “despite

this agreement, [Hall] intentionally left [D.] in charge of [A.] for an unspecified amount

of time, including overnight hours, and did not answer calls in the middle of the night

from [D.], nor did [Hall] answer calls or return messages from the police and CPS.” Id. at

19. In light of the above, the court opined that, “there was sufficient evidence before the

jury for it to find beyond a reasonable doubt that [Hall] neglected [A.] by intentionally

leaving him in the care of [D.] in excess of twelve hours, without any effective means to

reach her in case of an emergency.” Id. at 20.



                                             9
       Ms. Hall, before us, initially raises the issue that the “neglect of a minor statute is

unconstitutionally vague on its face and as applied to the particular facts of this case[.]”

Because we shall hold that there was not sufficient evidence to sustain Ms. Hall’s

conviction under Section 3-602.1 of the Criminal Law Article, the criminal child neglect

statute, we need not reach the constitutional issue.6

       The criminal neglect statute, Section 3-602.1 of the Criminal Law Article,

provides, in relevant part, that “‘Neglect’ means the intentional failure to provide

necessary assistance and resources for the physical needs or mental health of a minor that

creates a substantial risk of harm to the minor's physical health or a substantial risk of

mental injury to the minor.” Maryland Code (2012 Repl. Vol.), Section 3-

602.1(a)(1)(5)(i) of the Criminal Law Article.7 The intentional failure relates to that of

“[a] parent, family member, household member, or other person who has permanent or

temporary care or custody or responsibility for the supervision of a minor.”

       Although the Court of Special Appeals correctly characterized intent only with

reference to whether Ms. Hall failed to provide necessary assistance and resources for the

physical health of A., throughout its opinion the court speculated as to the harm that

could have befallen A. because of his having been left by Ms. Hall in the care of his

fourteen-year-old sister. It is not conjecture about potential harm, however, that governs,

6
  “This Court has emphasized, time after time, that the Court's ‘strong’ and ‘established
policy is to decide constitutional issues only when necessary.’” VNA Hospice of
Maryland v. Dep't of Health & Mental Hygiene, 406 Md. 584, 604, 961 A.2d 557, 569
(2008), quoting Burch v. United Cable, 391 Md. 687, 695–696, 895 A.2d 980, 984–985
(2006).
7
  The State and Ms. Hall agreed that the “mental health” of A. was not the issue in this
case.

                                             10
but rather whether the conduct at issue, evaluated objectively, created a substantial risk of

harm.

        “Intentional failure to provide necessary assistance and resources for the physical

needs . . . of a minor that creates a substantial risk of harm . . .” is the pivotal statutory

phrase. “[C]reates a substantial risk” in Section 3-602.1(a)(5)(i) is the same language

used in our reckless endangerment statute, Section 3-204 of the Criminal Law Article,

Maryland Code (2012 Repl. Vol.), which states, in relevant part:

        (a) A person may not recklessly:

          (1) engage in conduct that creates a substantial risk of death or
          serious physical injury to another.

The similarity between Section 3-602.1, the criminal child neglect statute, and the

reckless endangerment statute, Section 3-204, was noted in testimony in 2011 against the

passage of Senate Bill 178, the origin of Section 3-602.1, provided by Melissa S. Rock of

Advocates for Children and Youth,8 who suggested that the proposed child neglect statute

was unnecessary because, “[w]e also have a reckless endangerment statute through which

a person can be prosecuted for placing another individual at a substantial risk of death or

serious physical injury.” The Office of the Public Defender provided similar testimony in

opposition to S.B. 178, arguing that the bill “[was] largely duplicative of existing law” by

referencing, among other statutes, Section 3-204 of the Criminal Law Article, the

reckless endangerment statute, which states that the crime of reckless endangerment is a

8
 Advocates for Children and Youth is an organization that “provide[s] advocacy and
impact data as well as personalized stories to help tell the story of Maryland’s children in
a simple way.” Advocates For Youth, www.acy.org, http://www.acy.org/about-us/who-
we-are/ (https://perma.cc/4PLR-T9D5).

                                             11
person acting “recklessly” by “engag[ing] in conduct that creates a substantial risk of

death or serious physical injury to another.”

       We set forth the elements of a prima facie case of reckless endangerment in Jones

v. State, 357 Md. 408, 427, 745 A.2d 396, 406 (2000), as:

       1) that the defendant engaged in conduct that created a substantial risk of
       death or serious physical injury to another; 2) that a reasonable person
       would not have engaged in that conduct; and 3) that the defendant acted
       recklessly.

The Maryland Criminal Pattern Jury Instruction on reckless endangerment, Section

4:26A, embodies those same elements.9 In Williams v. State, 100 Md. App. 468, 481, 641

A.2d 990, 996 (1994), the Court of Special Appeals recognized that the purpose of the

reckless endangerment statute is to punish conduct that was potentially harmful, even

when no actual harm had occurred. (“At the actus reus10 level, [reckless endangerment] is

one element short of consummated harm. At the mens rea level, it is one element short of




9
  Maryland Pattern Jury Instruction Section 4:26A provides:
       The defendant is charged with the crime of reckless endangerment. In order
       to convict the defendant of reckless endangerment, the State must prove:
          (1) that the defendant engaged in conduct that created a substantial
          risk of death or serious physical injury to another;
          (2) that a reasonable person would not have engaged in that conduct;
          and
          (3) that the defendant acted recklessly.
MPJI-Cr § 4:26A Reckless Endangerment (2013 Supp.).
10
   The Latin term used to describe a criminal act. Every crime must be considered in two
parts—the physical act (actus reus) and the mental intent to do the crime (mens rea).
Garnett v. State, 332 Md. 571, 577-78, 632 A.2d 797, 800 (1993) (“In this regard, it is
well understood that generally there are two components of every crime, the actus reus or
guilty act and the mens rea or the guilty mind or mental state accompanying a forbidden
act.”)

                                            12
consummated harm. At the mens rea level, it is one element short of the specific intent

necessary for either an attempt or for one of the aggravated assaults.”).

       The issue oftentimes plumbed with respect to the actus reus of creating a

substantial risk of harm has been whether to measure a defendant’s conduct by a

subjective standard or an objective one in order to determine its criminality. Judge

Charles Moylan, writing for the Court of Special Appeals in Williams, 100 Md. App. at

495, 641 A.2d at 1003, discussed the subjective-objective dichotomy:

       . . . It is undisputed that the actus reus of creating a substantial risk is to be
       measured objectively, not subjectively. The mens rea of the defendant,
       although indispensable to an ultimate finding of guilt, has nothing to do
       with the establishment of the actus reus. Whether the conduct in issue has,
       indeed, created a substantial risk of death or serious physical injury is an
       issue that will be assessed objectively on the basis of the physical evidence
       in the case.

Judge Moylan’s words have been relied upon in other Court of Special Appeals opinions

considering reckless endangerment. See also Marlin v. State, 192 Md. App. 134, 168, 993

A.2d 1141, 1161 (2010); Albrecht v. State, 105 Md. App. 45, 85, 658 A.2d 1122, 1141

(1995); Wieland v. State, 101 Md. App. 1, 28, 643 A.2d 446, 459 (1994).

       With respect to the evaluation of a defendant’s conduct and the creation of risk,

the assessment must be made objectively. The reasonable person standard oftentimes is

utilized to measure deviation from the norm, upon which criminal liability is based.

Eanes v. State, 318 Md. 436, 462, 569 A.2d 604, 616 (1990) (“The objective ‘reasonable’

test is used in many areas of the law as an appropriate determinant of liability and thus a

guide to conduct.”). Essentially, then, the reasonable person standard in criminal law

differentiates between carelessness or negligence and criminal misconduct. See State v.


                                              13
Albrecht, 336 Md. 475, 499, 649 A.2d 336, 348 (1994) (citing C.J. Murphy in Mills v.

State, 13 Md. App. 196, 200, 282 A.2d 147, 149 (1971), cert. denied, 264 Md. 750

(1972): “. . . On the other hand whether an accused’s conduct constituted gross

negligence must be determined by the conduct itself and not by the resultant harm. Nor

can criminal liability be predicated on every careless act merely because its carelessness

results in injury to another.”).

       Utilizing the objective standard to evaluate the actus reus or conduct of a parent in

order to determine a violation of the criminal child neglect statute avoids conjecture with

regard to the creation of a substantial risk of harm to the child. The standard to be

utilized, then, is whether the parent intentionally failed to provide necessary assistance

and resources for the physical needs of the child by acting in a manner that created a

substantial risk of harm to the child, measured by that which a reasonable person would

have done in the circumstances.

       The importance of relying on an objective standard to evaluate parental inaction or

neglect lies in the avoidance of “20/20 hindsight” by a jury that can engage in risk

distortion. As one commenter on the subject has noted, juries, when faced with evidence

of what may have or could have occurred, distort the risk of parental inaction so that all

risk becomes substantial. See David Pimentel, Criminal Child Neglect and the “Free

Range Kid”: Is Overprotective Parenting the New Standard of Care?, 2012 Utah L. Rev.

947, 988. Professor Pimentel, writing about overprotective parenting, notes that parents,

historically, have had little concern for the potential criminality of their parenting

decisions, as “the prevailing concern behind parenting choices has been what is best for


                                            14
the child and for the family.” Id. at 967. The shift toward closer scrutiny of parenting

choices—the result of both societal and legislative emphases on child protection—has

been accompanied by the media sensationalizing the risk to children, according to

Professor Pimentel, such that parenting decisions, which necessarily involve parental

management of risk to their children, face second-guessing by jurors tasked with

determining whether the conduct was, in fact, criminal. Id. at 970-72. Such second-

guessing raises the potential that any risk of harm that could be envisioned, aided by

20/20 hindsight, would satisfy criminal culpability in the mind of a jury, according to

Professor Pimentel:

       If the risk of harm is literally one in a million—in the category of “freak
       accident”—it would be patently unreasonable to expect any significant
       investment in precaution against that harm. And yet, every time that freak
       accident occurs, the parent may face liability for endangerment, as jurors
       are likely to take the fact of the harm itself as conclusive evidence of its
       likelihood[.]

                                           ***

       Psychologists who study fear have determined a number of reasons that
       people misperceive risks. Indeed, they note that “perceived risks rarely
       match the actual risks.”

Id. at 981-83.

       After discussing the psychology of a juror’s assessment of risk and factors that

contributed to the distortion between actual and perceived risks,11 Professor Pimentel


11
   Five factors contribute to a juror’s distortion of the risk associated with a parent’s
action or inaction, according to Professor Pimentel: the ability to assess the likelihood of
an occurrence based on the ease with which the juror can think of an example of it; the
tendency to ignore higher probability, but less catastrophic risks; the exaggeration of a
risk when there is a human element introduced; the impact of media coverage, which

                                            15
concludes that, “As already demonstrated, however, juries are ill-equipped to assess risk,

much less to determine when a parent’s poor judgment is sufficiently bad to warrant

criminal punishment.” Id. at 987.

       The Supreme Court of Kansas, in a child endangerment case, also recognized the

potential for bias and distortion in State v. Cummings, 305 P.3d 556, 565 (Kan. 2013). In

that case, Cummings had provided daycare services for several children in her home and

placed one of the children, a thirteen-month old, in a car seat in a bathroom, fastening the

child in with the top strap of the car seat but not the bottom strap. Id. at 558. After

hearing the child cry for a few minutes and then stop, Cummings assumed the child had

gone to sleep, but when she finally did check on the child, he had strangled to death in the

car seat. Id. at 559.

       The statute under which Cummings was convicted of the crime of involuntary

manslaughter during the commission of the crime of endangering a child defined the

crime 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.” Id. at 561 (emphasis original).

       Cummings had challenged the jury instruction which stated, in part:

       The elements of endangering a child are as follows:




overestimates how common a low probability outcome might be; and the lack of
appropriate definitions of “reasonable”, which increases the likelihood a juror will deem
the parent’s action unreasonable in light of the other four factors. David Pimentel,
Criminal Child Neglect and the “Free Range Kid”: Is Overprotective Parenting the New
Standard of Care?, 2012 Utah L. Rev. 947, 983-87.

                                             16
       1. That the defendant intentionally and unreasonably caused or permitted
       [the 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;

Id. at 560-61, arguing the jury should have been told that “reasonable probability” was

more than a faint or remote possibility and that the likelihood of harm will result or the

child is placed in imminent peril. Id. at 561. The Supreme Court of Kansas emphasized

the effect of “hindsight bias and risk distortion,” reversed Cummings’s conviction and

held that the term “reasonable probability” was ambiguous:

       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.

id. at 565.

       Similarly, the Ohio intermediate appellate court, in State v. McLeod, 946 N.E.2d

915 (Ohio Ct. App. 2006), reversed a conviction for child endangerment based on

insufficient evidence. Ohio’s child endangerment statute “provide[d] that no person . . .

‘shall create a substantial risk to the health or safety of the child, by violating a duty of

care, protection, or support.’” Id. at 917. The term “substantial risk” was also defined by

statute as, “a strong possibility, as contrasted with a remote or significant possibility, that

a certain result may occur or that certain circumstances may exist.” Id.

       In the case, McLeod had agreed to watch the five year-old daughter of a friend,

along with two younger children of another friend; he took a walk around the apartment

complex with the younger children after checking on the girl at the playground. Someone




                                              17
reported the girl as unattended, and a deputy sheriff found the child. McLeod was

charged and convicted of child endangerment.

       The Ohio appellate court reversed and noted that “parents or other child caregivers

are not criminally liable for every error in judgment[.]” Id. at 917. Noting that other

parents allowed their children to play unsupervised at the playground, the court

concluded that checking on a child who was playing with other children in a playground

every thirty minutes did not rise to the level of reckless endangerment and stated:

       The failure to realize an ideal level of supervisory attention of a child does
       not equate to acting with heedless indifference to the consequences, thereby
       perversely disregarding a known strong possibility, as contrasted with a
       remote or significant possibility, of harm to the health or safety of the child.

Id. at 918.

       In State v. Anderson, 108 S.W.3d 680 (Mo. Ct. App. 2002), a mother was

convicted of second-degree child endangerment after her seven-year-old child, who was

disabled, was found naked on a highway. The Missouri child endangerment statute

provided that “[a] person commits the crime of endangering the welfare of a child in the

second degree if . . . [s]he with criminal negligence acts in a manner that creates a

substantial risk to the life, body or health of a child less than seventeen years old.” Id. at

682. The State was required to prove that the mother acted with “criminal negligence”

that “create[d] a substantial risk to life, body, or health of a child[.]” Id.

       The Missouri Court of Appeals reversed the mother’s conviction and opined that,

“[while] the failure to properly supervise a child may constitute child endangerment

under certain circumstances[,] . . . in such cases the failure to act must pose an actual or



                                               18
practically certain risk or danger and not just the potential for risk or danger.” Id. at 683

(internal quotation omitted). The court noted that no evidence had been presented to

establish that Anderson failed to supervise her son and that this failure resulted in the

child’s ending up in the middle of the highway. Id. Thus, the court concluded:

       Any finding that Anderson’s failure to supervise J.A. posed a substantial
       and unjustifiable risk of danger to J.A. could not have been based upon
       anything more than mere speculation and conjecture.

Id. Reversing Anderson’s conviction, the appellate court stated, “the evidence presented

at trial simply does not establish that any failure by Anderson to supervise J.A. posed a

substantial risk that J.A. would end up standing in the middle of the highway or that

Anderson should have been aware of such a risk.” Id. at 684.

       In the present case, conviction for criminal child neglect requires that Ms. Hall’s

conduct—leaving her three-year-old son, A., in the care of his fourteen year-old sister—

created a “substantial risk of harm” to A.’s physical health and that her conduct was such

that a reasonable parent under the circumstances would not have engaged in. The

evidence, however, taken in the light most favorable to the State was insufficient to

satisfy the standard.

       Ms. Hall left her three year-old son, A., a child who was, admittedly, difficult to

handle, in the overnight care of his fourteen year-old sister, D., after ensuring that he had

been fed and was ready to go to bed. After Ms. Hall and her fiancé departed, the door to

the house was locked and the children, including A. and D., fell asleep. The fact that A.

was in the care of a fourteen year-old was objectively reasonable taking into




                                             19
consideration that statutorily a thirteen year-old is deemed an appropriate caretaker for a

child under eight years of age:

       A person who is charged with the care of a child under the age of 8 years
       may not allow the child to be locked or confined in a dwelling, building,
       enclosure, or motor vehicle while the person charged is absent and the
       dwelling, building, enclosure, or motor vehicle is out of the sight of the
       person charged unless the person charged provides a reliable person at least
       13 years old to remain with the child to protect the child.

Maryland Code (1984, 2012 Repl. Vol.), Section 5-801(a) of the Family Law Article.

Although Ms. Hall had agreed with Ms. Wannall not to leave A. under the supervision of

D., a fact upon which the Court of Special Appeals relied in its analysis, accord did not

convert her agreement to the level of one which had criminal consequences. The main

thrust of Ms. Wannall’s concern regarding D. and her supervision of A. was D.’s need to

“spend more time on her studies” and “not have as many responsibilities in the home.”

Certainly, also, the agreement between Ms. Hall and Ms. Wannall could not have been

the basis of a criminal conspiracy. As a result, although it is beyond dispute that Ms. Hall

was negligent in not responding to telephone calls from D. and the authorities, she was

not guilty of criminal child neglect.

                                                 JUDGMENT OF THE COURT OF
                                                 SPECIAL APPEALS REVERSED.
                                                 CASE REMANDED TO THAT
                                                 COURT WITH DIRECTIONS TO
                                                 REVERSE THE JUDGMENT OF
                                                 THE CIRCUIT COURT FOR
                                                 MONTGOMERY COUNTY. COSTS
                                                 IN THIS COURT AND THE COURT
                                                 OF SPECIAL APPEALS TO BE
                                                 PAID     BY    MONTGOMERY
                                                 COUNTY.


                                            20
Circuit Court for Montgomery County,
Maryland
Criminal Case No. 122148
Argued: January 11, 2016
                                               IN THE COURT OF APPEALS

                                                       OF MARYLAND

                                                               No. 50

                                                    September Term, 2015

                                       ______________________________________

                                              BEVERLY ANNETTA HALL
                                                         v.
                                               STATE OF MARYLAND
                                       ______________________________________

                                              Barbera, C.J.,
                                              *Battaglia,
                                              Greene,
                                              Adkins,
                                              McDonald,
                                              Watts,
                                              Hotten,
                                                         JJ.
                                       ______________________________________

                                           Concurring Opinion by McDonald, J.,
                                                which Barbera, C.J., joins
                                       ______________________________________
                                                   Filed: June 23, 2016

                                       *Battaglia, J., now retired, participated in the
                                       hearing and conference of this case while an active
                                       member of this Court; after being recalled pursuant
                                       to the Constitution, Article IV, Section 3A, she also
                                       participated in the decision and adoption of the
                                       majority opinion.
       I agree with the analysis in the Majority Opinion and join it in full. I write

separately to elaborate on what I understand the Majority Opinion to mean in two

respects.

       Determination as to Vagueness

       The Majority Opinion holds that the evidence was insufficient to support Ms.

Hall’s conviction for criminal child neglect, but it explicitly avoids addressing whether

the statute prohibiting criminal neglect of a minor is unconstitutionally vague. Majority

slip op. at 2. In my view, the former holding necessarily entails a decision that the statute

is not unconstitutionally vague. For the Court to hold that the evidence is insufficient to

support a guilty verdict, the Court must conclude that no rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Moye v. State, 369

Md. 2, 12, 796 A.2d 821 (2002). A statute is unconstitutionally vague if it would not

afford a person “of ordinary intelligence and experience . . . a reasonable opportunity to

know what is prohibited . . . .” Galloway v. State, 365 Md. 599, 615, 781 A.2d 851

(2001). If the statute were unconstitutionally vague, then a trier of fact would not know

what the essential elements of the crime were and we could not reach a conclusion, one

way or the other, whether the trier of fact could have found that the elements of the

offense were proven.

       Thus, in order to conclude, as the Majority opinion does, that no rational trier of

fact could have found the essential elements of the crime from the evidence here, we

necessarily must be able to identify the elements of the offense and have surmounted the
vagueness hurdle. For the reasons that Judge Hotten’s dissent ably explains, I do not

believe that the statute is unconstitutionally vague. However, for the reasons that the

Majority Opinion elucidates, I do not believe the evidence was sufficient to support the

conviction.

       A Before-the-Fact Standard

       Additionally, I understand the Majority Opinion to apply a before-the-fact

standard, rather than an after-the-fact standard.     According to the statute, we must

examine whether Ms. Hall’s actions created a “substantial risk” of harm to A. See

Maryland Code, Criminal Law Article, § 3-602.1. We must guard against considering

the risk of a harm to be substantial merely because we know, after the fact, that some

harm materialized.     The proper inquiry is whether the risk should be considered

substantial at the time that the parent or other caretaker acted. One who creates a very

small risk of harm to a child is not criminally negligent simply because an unforeseeable

tragedy follows. On the other hand, a parent or caretaker may be criminally negligent

when that individual creates a substantial risk of harm, whether or not the harm actually

befalls the child. In this case, this standard means that we consider what Ms. Hall could

be reasonably expected to foresee as possible outcomes of leaving A. at home with D.

Whether A. in fact ran out of the house afterward or stayed on the couch sleeping all

night is not relevant; what matters is whether Ms. Hall’s actions created a substantial risk,

not what harm actually ensued. I understand the Majority Opinion’s analysis to apply

this standard, so I concur.

       Chief Judge Barbera has indicated that she joins this opinion.

                                             2
Circuit Court for Montgomery County, Maryland
Criminal Case No. 122148
Argued: January 11, 2016

                                                      IN THE COURT OF APPEALS
                                                           OF MARYLAND

                                                                      No. 50

                                                          September Term, 2015
                                                ______________________________________

                                                      BEVERLY ANNETTA HALL
                                                                        v.
                                                        STATE OF MARYLAND
                                                ______________________________________

                                                     Barbera, C.J.,
                                                     *Battaglia,
                                                     Greene,
                                                     Adkins,
                                                     McDonald,
                                                     Watts,
                                                     Hotten,

                                                                  JJ.
                                                ______________________________________

                                                  Dissenting Opinion by Hotten, J., which
                                                        Greene and Watts, JJ., join
                                                _____________________________________

                                                            Filed: June 23, 2016

                                            *Battaglia, J., now retired, participated in the
                                            hearing and conference of this case while an
                                            active member of this Court; after bring recalled
                                            pursuant to the Md. Constitution, Article IV,
                                            Section 3A, she also participated in the decision
                                            and adoption of the majority opinion.
       I respectfully dissent from the majority opinion. I would hold that the evidence at

trial, when viewed in a light most favorable to the State, was sufficient to satisfy § 3-602.1

of the Criminal Law Article (“Crim. Law”), which was not unconstitutionally vague as

applied to Ms. Hall (“Petitioner”).

 I.    The Evidence at Trial was Sufficient to Sustain Petitioner’s Conviction.

       Crim. Law § 3-602.1 required that Petitioner’s conduct “created a ‘substantial risk

of harm’ to A.’s physical health and that her conduct was such that a reasonable parent

under the circumstances would not have engaged in.” Maj. Slip Op. at 19. Here,

notwithstanding the statutory acknowledgement that “a thirteen year-old is… an

appropriate caretaker for a child under eight years of age[,]” Maj. Slip Op. at 20, the direct

and circumstantial evidence before the court was sufficient to establish that Petitioner knew

D. was an inappropriate caretaker for A. Allen v. State, 402 Md. 59, 76-77, 935 A.2d 421,

431 (2007) (“[W]e review a challenge to the sufficiency of the evidence in a jury trial by

determining whether the evidence, viewed in a light most favorable to the prosecution,

supported the conviction ..., such that any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”). Thus, Petitioner’s decision

to leave A. with D. overnight, when she was unreachable until late the following morning,

was not “objectively reasonable” as proffered by the majority. Maj. Slip Op. at 19.

       D.’s testimony revealed that A. had a propensity to escape from home unattended,

and, the social worker, Ms. Wannall established that Petitioner was present for at least one

such incident where A. had escaped from the home and entered the truck of a nearby postal

worker. Ms. Wannall further described a typical episode of A’s rambunctious behavior in
Petitioner’s presence, and opined that A. “ran rampant[,]” “was very, very difficult to

control[,]” and was “very active.” Regarding direct evidence of Petitioner’s knowledge,

Ms. Wannall testified that a recurring theme during her conversations with Petitioner was

the appropriateness of D. caring for A. Notably, Ms. Wannall raised this issue with

Petitioner just nine days prior to the night in question, and Petitioner had agreed that “[A.]

was too difficult for [D.] to watch[,]” and that she would no longer leave A. under the

supervision of D.

       The majority proffers that the Court of Specials Appeals’ reliance on this agreement

was misplaced because “[t]he main thrust of Ms. Wannall’s concern regarding D. and her

supervision of A. was D.’s need to ‘spend more time on her studies’ and ‘not have as many

responsibilities in the home.’” Maj. Slip Op. at 20. Although the majority’s interpretation

of Ms. Wannall’s concern is certainly reasonable, nothing in the record indicates that Ms.

Wannall’s concerns were limited to the amount of responsibility placed on D. Thus, where

this Court is required to “review the evidence and all inferences in a light most favorable

to the State[,]” Ms. Wannall’s concern should be viewed as pertaining to the wellbeing of

both A. and D. Allen, 402 Md. at 77, 935 A.2d at 431. Petitioner’s agreement with Ms.

Wannall was, therefore, probative of Petitioner’s knowledge that D. was incapable of

providing adequate care for A.

       Notwithstanding Petitioner’s knowledge that D. was ill-suited to supervise A.,

Petitioner advised her children that she “would be right back[,]” and then left A. under D.’s

supervision on the night of February 24, 2012. Petitioner did not tell her children where

she could be found, did not tell them when she would be back, and made no efforts to

                                            -2-
reconnect with her children until after 10am the following morning. Furthermore, despite

giving D. a cell phone to use in the event of an emergency,1 Petitioner was entirely

unavailable, as her cell phone went straight to voicemail during the numerous unsuccessful

attempts by D., law enforcement, and the social worker to contact her after A. was found

unattended in the middle of a six lane roadway.

       The      factfinder   could   have    reasonably     concluded     “that   [Petitioner’s]

conduct…created a ‘substantial risk of harm’ to A.’s physical health and that her conduct

was such that a reasonable parent under the circumstances would not have engaged in.”

Maj. Slip Op. at 19. The majority correctly observes that 20/20 hindsight should not be

utilized to hold a parent criminally liable for “failure to realize an ideal level of supervisory

attention” or to safeguard against a “freak accident.” Maj. Slip Op. at 18, 15 (quoting State

v. McLeod, 946 N.E.2d 915, 918 (Ohio Ct. App. 2006), and David Pimentel, Criminal

Child Neglect and the “Free Range Kid”: Is Overprotective Parenting the New Standard

of Care?, 2012 Utah L. Rev. 947, 981-83). However, the evidence that Petitioner knew A.

was a very difficult child, coupled with her complete unavailability, distinguishes this case

from one where an otherwise reasonable parenting decision is judged with the benefit of

hindsight.

       The factfinder could have reasonably concluded—in light of Petitioner’s knowledge

concerning A.’s behavior—that Petitioner’s conduct was not that of a reasonable parent

under the circumstances. Furthermore, A. was subjected to a “substantial risk of harm”



       1
           The cell phone provided contained a number to reach Petitioner.
                                              -3-
from the moment he was left with an inadequate caregiver, while Petitioner was

unreachable by her children, police, and the social worker. I would therefore hold that the

evidence was sufficient to sustain Petitioner’s conviction.

II.    § 3-602.1 is Constitutional As Applied to Petitioner

       Having addressed Petitioner’s sufficiency argument, I would further hold that Crim.

Law § 3-602.1 was not unconstitutionally vague as applied to Petitioner.2

       The void-for-vagueness doctrine grows out of the right to due process under the

Fourteenth Amendment to the United States Constitution, and generally requires that a

criminal statute satisfy two criteria. Ayers v. State, 335 Md. 602, 623-24, 645 A.2d 22, 32

(1994). The first criteria is notice, requiring that “persons of ordinary intelligence and

experience be afforded a reasonable opportunity to know what is prohibited, so that they

may govern their behavior accordingly.” Bowers v. State, 283 Md. 115, 121, 389 A.2d

341, 345 (1978). This requirement “is grounded on the assumption that one should be free

to choose between lawful and unlawful conduct.” Id.

       The second criteria requires that the statute “provide legally fixed standards and

adequate guidelines for police, judicial officers, triers of fact and others whose obligation

it is to enforce, apply and administer the penal laws.” Id. This Court has observed that

“[a] vague law impermissibly delegates basic policy matters to policemen, judges, and



       2
         The vagueness challenge is addressed in this dissent because affirmance of the
judgment of the Court of Special Appeals would require resolution of this constitutional
issue. Cf. VNA Hospice of Maryland v. Dep’t of Health & Mental Hygiene, 406 Md. 584,
604, 961 A.2d 557, 569 (2008) (discussing this Court’s preference “‘to decide
constitutional issues only when necessary.’”) (citations omitted).
                                            -4-
juries for resolution on an Ad hoc and subjective basis, with the attendant dangers of

arbitrary and discriminatory application.”     Id. at 121-22, 389 A.2d. at 345 (quoting

Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S. Ct. 2294, 2299

(1972) accord, Papachristou v. City of Jacksonville, 405 U.S. 156, 170, 92 S. Ct. 839, 843

(1972)).

       Outside of the First Amendment context, vagueness is generally considered “as

applied to the facts of the particular case[,]” and the court will determine whether the

complaining party could have reasonably foreseen that their conduct was subject to the

statute, and/or whether the statute led to arbitrary enforcement based on the facts before

the court.3 Ayers, 335 Md. at 624, 645 A.2d at 33 (quoting Bowers, 283 Md. at 121, 389



       3
         In contrast to a challenge for vagueness as-applied, a facial challenge permits the
complaining party to raise the issue of vagueness as to hypothetical persons not before the
court, “[a]nd if the law is found deficient in one of these respects, it may not be applied to
the [complainant] either[.]” Coates v. City of Cincinnati, 402 U.S. 611, 619-20, 91 S. Ct.
1686, 1691 (1971). Several Federal Circuits, including the Fourth Circuit, and several
State Courts, have expressly prohibited a facial attack in the absence of a concern for First
Amendment liberties. United States v. Klecker, 348 F.3d 69, 71 (4th Cir. 2003); see also
United States v. Sun, 278 F.3d 302, 309 (4th Cir. 2002); Gallagher v. City of Clayton, 699
F.3d 1013, 1021 (8th Cir. 2012) (‘It is well established that vagueness challenges to statutes
which do not involve First Amendment freedoms must be examined in light of the facts of
the case at hand.”); United States v. Other Med., 596 F.3d 677, 682 (9th Cir. 2010)
(“[V]agueness challenges to statutes that do not involve the First Amendment violations
must be examined as applied to the defendant.”); In re Dependency of M.M., 174 Wash.
App. 1068 (2013) (“It is well-settled law that a vagueness challenge to a statute that does
not involve First Amendment rights must be decided as applied to the particular facts of a
case. As a result, when a vagueness challenge to a statute does not involve First
Amendment interests, a facial challenge to the statute will not be considered.”) (footnote
omitted); People v. Einoder, 209 Ill. 2d 443, 448 (2004) (“A defendant may not challenge
the facial vagueness of a statute that does not implicate first amendment freedoms unless
the statute ‘is incapable of any valid application.’”); State v. Schriver, 207 Conn. 456, 461
(1988) (“For statutes that do not implicate the especially sensitive concerns embodied in
                                            -5-
A.2d at 346). Thus, Crim. Law § 3-602.1’s definition of “neglect”—the “intentional failure

to provide necessary assistance and resources for the physical needs … of a minor

that creates a substantial risk of harm to the minor’s physical health[]”— must satisfy each

of these prongs.4   Crim. Law §3-602.1(a)(5)(ii).

       In determining whether the child neglect statute provided Petitioner with adequate

notice of the prohibited conduct, the court examines whether that language can be “fairly

ascertained by reference to judicial determinations, the common law, dictionaries, treatises

or even the words themselves, if they possess common and generally accepted meaning.”

Galloway v. State, 365 Md. 599, 615, 781 A.2d 851, 860 (2001) (citation omitted)

(emphasis in original). If, after looking to the above sources, there is still a constitutional

question about notice, the court may also employ a narrowing construction to avoid

constitutional concerns. See Id. at 619, 781 A.2d at 862 (“In short, even if arguably

otherwise deficient, [the challenged statute] is salvageable because we shall employ a




the first amendment, we determine the constitutionality of a statute under attack for
vagueness by considering its application to the facts at issue.”) (citation omitted).
       4
          In discussing jury instructions, the parties agreed that the references to mental
health in the definition of “neglect” would be removed. Thus, the instructions given by the
court defined “neglect” as “the intentional failure to provide necessary assistant [(sic)] and
resources for the physical needs of a minor that creates the substantial risk of harm to the
minor’s physical health.” We are therefore solely concerned with neglect committed
through “intentional failure to provide necessary assistance and resources for the physical
needs of a minor that creates a substantial risk of harm to the minor’s physical health[,]”
because the State did not prosecute Petitioner under the portion of Crim. Law § 3-602.1
governing mental health. See Ayers, 335 Md. at 625, 645 A.2d at 33 (“[E]ven under the
special standing rule applicable with regard to statutes involving First Amendment
interests, a defendant may not raise a facial challenge to portions of a statute under which
he or she was not convicted.”).
                                             -6-
limiting construction to the statute to ensure that it provides a standard of conduct….”); see

also Schochet v. State, 320 Md. 714, 729, 580 A.2d 176, 183 (1990) (“General Statutes …,

which if given their broadest and most encompassing meaning, give rise to constitutional

questions, have regularly been the subject of narrowing constructions so as to avoid the

constitutional issues[.]”). Lastly, in determining whether an otherwise vague statute is

salvageable, the court considers the existence of inherent limitations in the statute, along

with any scienter requirement that further provides notice of the prohibited conduct.

Galloway, 365 Md. at 619, 781 A.2d at 863. In light of these factors, the meaning of the

terms in Crim. Law § 3-602.1 could be fairly ascertained by Petitioner, thus providing

notice of the prohibited conduct.

       Crim. Law § 3-602.1(a)(5)(ii) prohibits the “intentional failure to provide necessary

assistance and resources….” (emphasis added). Intent is frequently used as the required

mens rea in Maryland’s penal statutes. In the context of second degree murder—requiring

an “[i]ntent to commit grievous bodily harm”—this Court has noted that the intent

requirement may be satisfied where “the defendant acts without provocation, justification

or excuse, and could or should have foreseen that the consequences of his or her conduct

might result in death to another person.” Thornton v. State, 397 Md. 704, 714-15, 919 A.2d

678, 684 (2007) (citation omitted) (emphasis added). Regarding the intent to cause serious

physical injury required for first degree assault, “a jury may infer the necessary intent from

an individual’s conduct and the surrounding circumstances, whether or not the victim

suffers such an injury.” Chilcoat v. State, 155 Md. App. 394, 403, 843 A.2d 240, 246

(2004) (citing Ford v. State, 330 Md. 682, 703, 625 A.2d 984, 994 (1993)). “Also, the jury

                                            -7-
may ‘infer that one intends the natural and probable consequences of his act.’” Id. (quoting

Ford, 330 Md. at 704, 625 A.2d at 994).

       In light of the precedent interpreting “intent” in other criminal statutes, Petitioner

would have been placed on notice that Crim. Law § 3-602.1 may be satisfied where a

defendant could or should have foreseen that his or her conduct would probably result in

the “failure to provide necessary assistance and resources for the physical needs of a

minor….”5 Crim. Law § 3-602.1(a)(5)(ii). This specific intent requirement weighs against

a holding that Crim. Law § 3-602.1 punishes parents or caregivers without warning, see

Williams v. State, 329 Md. 1, 9, 616 A.2d 1275, 1279 (2001) (“‘[T]he requirement of a

specific intent to do a prohibited act … relieve[s] the statute of the objection that it punishes

without warning an offense of which the accused was unaware.’”) (quoting Screws v.

United States, 325 U.S. 91, 101-02, 65 S. Ct. 1031, 1035 (1945) (plurality opinion)), and

also distinguishes the present case from several out-of-state cases where child neglect

statutes have been deemed unconstitutionally vague. Cf. Commonwealth v. Carter, 21 Va.

App. 150, 152-53 (1995) (holding that Virginia Code § 40.1-103—making it a crime for

“any person employing or having custody of any child … willfully or negligently to cause


       5
         At Petitioner’s trial, the court instructed the jury using the following explanation
of “intent”:

       Intent is a state of mind, and ordinarily cannot be proven directly because
       there is no way of looking into a person’s mind; therefore, a defense [(sic)]
       intent may be shown by surrounding circumstances. In determining the
       defendant’s intent, you may consider the defendant’s acts and statements, as
       well as surrounding circumstances. Further, you may, but are not required
       to, infer that a person ordinarily intends the natural and probably [(sic)]
       consequences of her acts and or omissions.
                                              -8-
or permit such child to be placed in a situation that its life, health or morals may be

endangered…”—was unconstitutionally vague) (emphasis omitted); Schriver, 207 Conn. at

461 (noting that a prohibition on “any act likely to impair the health or morals of any

child[]” “provides no guidance to potential violators, police officers or juries, particularly

because specific intent is not an element of the offense….”); Alsager v. Dist. Court of Polk

Cnty. Iowa (Juvenile Div.), 406 F. Supp. 10 (S.D. Iowa 1975) aff’d sub nom. Alsager v.

Dist. Court of Polk Cnty., Iowa, 545 F.2d 1137 (8th Cir. 1976) (holding that Iowa Code §

232.41—providing that the court may terminate a parental relationship where “the parents

have substantially and continuously or repeatedly refused to give the child necessary

parental care and protection”—was unconstitutionally vague.).

       Regarding “intentional failure to provide necessary assistance and resources for the

physical needs … of a minor…[,]” Crim. Law § 3-602.1 (emphasis added), the term

“physical needs,” will determine “necessary assistance and resources” in a given case. The

term “needs,” when used as a noun, is defined as the “physiological or psychological

requirements for the well-being of an organism.” M. WEBSTER’S NEW COLLEGIATE

DICTIONARY 829 (11th ed. 2008). Thus, the term “physical needs” simply excludes the

“psychological requirements,” and includes basic requirements for physical well-being of

a child, like shelter, safety, food, supervision, clothing, water or sanitation.6

       The common understanding of “physical needs” is confirmed by the General

Assembly’s use of similar terms in Maryland’s elder abuse and neglect statute, Crim. Law



       6
           The examples listed are not intended to be exhaustive.
                                             -9-
§ 3-604(a)(7)(i). In addition, case law interpreting the term “neglect” in Maryland’s Child

In Need of Assistance statute, Md. Code (2006 Repl. Vol. 2013), § 3-801(s) of the Courts

and Judicial Proceedings (“Cts. & Jud. Proc.”) Article, provides additional notice of what

is encompassed by the term “neglect” in the case at bar.

       Similar to the child neglect statute, Crim. Law § 3-604(a)(7)(i) defines “neglect” of

a vulnerable adult as the:

       intentional failure to provide necessary assistance and resources for the
       physical needs of a vulnerable adult, including:
              1. food;
              2. clothing;
              3. toileting;
              4. essential medical treatment;
              5. shelter; or
              6. supervision.

Although Crim. Law § 3-602.1 contains no specific examples of what is included amongst

the “physical needs of a minor,” the specific examples of “the physical needs of a

vulnerable adult” confirm the types of essentials that are encompassed by the common

understanding of “physical needs.” According to Petitioner, the General Assembly’s

decision to define what is necessary for the physical needs and resources of a vulnerable

adult also indicates that the term “necessary assistance and resources for the physical

needs” is a vague term. However, several out-of-state courts, in addressing vagueness

challenges, have looked to definitions provided in related statutes to determine whether

there is notice of a term’s meaning in the law at issue. See State v. Hagan, 387 So. 2d 943,

945 (Fla. 1980) (“In the absence of a statutory definition, resort may be had to case law or

related statutory provisions which define the term, and where a statute does not specifically

                                           - 10 -
define words of common usage, such words are construed in their plain and ordinary

sense.”); Com. v. Kenney, 449 Mass. 840, 851 (2007) (“[A] law is not vague [in the

constitutional sense] if its meaning is ascertainable by reference to similar or related

statutes ... if the questioned [term has] a commonly understood meaning [or if] even a

vague statute may be made constitutionally definite by giving it a reasonable

construction.”); People v. Kassover, 205 N.Y.S.2d 428, 431 (N.Y. Sp. Sess. 1960) (“The

fact that language in a statute or regulation may require reference to ‘definitions’ in that or

in a related statute, does not necessarily render such statute or regulation vague or

indefinite.”); State v. Winslow, 134 N.H. 398, 400 (1991) (“[T]he necessary specificity,

however, need not be contained in the statute itself, but rather, the statute in question may

be read in the context of related statutes, prior decisions, or generally accepted usage.”).

       There is also good reason for the General Assembly to paint with a broader brush

when drafting the child abuse statute. A “vulnerable adult” is defined in terms of a

condition—“an adult who lacks the physical or mental capacity to provide for the adult’s

daily needs[,]” Crim. Law § 3-604(a)(10)—so there is likely a somewhat finite

understanding of what is required for the physical needs of such a person. To the contrary,

a minor (anyone under the age of 18) is defined by reference to age, and there are minors

within this range that require drastically different levels/types of assistance to meet their

physical needs. Therefore, the term “necessary assistance and resources for the physical

needs” is susceptible to a definition with concrete examples in Crim. Law § 3-604, but not

in Crim. Law § 3-602.1.



                                            - 11 -
       The amendments made to S.B. 178 (Md. 2011), which ultimately created Crim. Law

§ 3-602.1, reveal that the General Assembly recognized the difficulty involved in drafting

legislation comprehensive enough to encompass all that is necessary for the physical needs

of a minor, as compared to a vulnerable adult. As S.B. 178 was originally introduced in

the Senate, “neglect” was defined in the exact same manner as the vulnerable adult statute:

“the intentional failure to provide necessary assistance and resources for the physical needs

of a minor, including:”

              (I)     Food

              (II)    Clothing

              (III)   Toileting

              (IV)    Essential Medical treatment

              (V)     Shelter; or

              (VI)    Supervision

S.B. 178 (as introduced and first read in the Senate, January 24, 2011) (capitalization

omitted). However, S.B. 178 was subsequently approved with amendments by the Senate

Judicial Proceedings Committee, which deleted the “laundry list (food, clothing, toileting,

essential medical treatment, shelter or, or supervision)[,]” and instead “require[d] that the

failure to provide creates a substantial risk of harm to the minor’s physical or mental

health[.]” SENATE JUDICIAL PROCEEDINGS COMMITTEE: FLOOR REPORT, S.B.

178 at 1 (Md. 2011). This comprehensive definition of “neglect” in S.B. 178 was

ultimately signed into law, and the decision to deviate from the definition of “neglect” in

the vulnerable adult statute evidences the General Assembly’s intent to encompass a range

                                           - 12 -
of conduct that was not limited by the “laundry list” used in the vulnerable adult statute.

See Williams, 329 Md. at 13, 616 A.2d at 1280-81 (noting that “all broad laws attempting

to punish a range of criminal conduct” are not “susceptible to vagueness challenges insofar

as they could be drawn more narrowly and precisely.”).

       In addition to the vulnerable adult statute, “neglect” is also defined in a similar

fashion in the Maryland Child In Need of Assistance (“CINA”) statute. Cts. & Jud. Proc.

§ 3-801(s). Petitioner contends that the body of law addressing “neglect” in CINA cases

is of limited relevance because Crim. Law § 3-602.1 is a criminal statute designed to

punish caregivers, whereas a CINA proceeding is a civil proceeding that serves to protect

minors. Petitioner also notes that the language of the statutes are different. It is true that

a criminal proceeding serves an interest not necessarily served by a CINA proceeding

because “the legislative intention underlying a CINA proceeding is not to punish the

parent[.]” In re Blessen H., 392 Md. 684, 707-09, 898 A.2d 980, 994 (2006) (quoting In

re John P. and Thomas P., 311 Md. 700-709, 537 A.2d 263, 268 (1988)). Furthermore,

while the void-for-vagueness doctrine applies to both criminal and civil statutes, the

Supreme Court has noted that the U.S. Constitution is more tolerant of vagueness in civil

enactments than criminal enactments. Vill. of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 498-99, 102 S. Ct. 1186, 1193 (1982) (“The Court has also

expressed greater tolerance of enactments with civil rather than criminal penalties because

the consequences of imprecision are qualitatively less severe.”) (footnote omitted).

       Notwithstanding these differences, a determination that a child is a CINA and a

finding of guilt under Crim. Law § 3-602.1 both serve the legitimate State interest of

                                            - 13 -
protecting Maryland children. Additionally, although the results of the two proceedings

will be different, each constitutes an interference with the fundamental constitutional right

of a parent to raise their child how they see fit. In Re Yve S., 373 Md. 551, 565, 819 A.2d

1030, 1038-39 (2003) (discussing the fundamental rights of a parent in relation to their

child). Thus, notice of the conduct sufficient to constitute neglect under the CINA statute

is certainly relevant in providing notice of the conduct comprising criminal neglect, as the

statutes are related in both purpose and result.

       CINA refers to “a child who requires court intervention because: (1) [t]he child has

been abused, has been neglected, has a developmental disability, or has a mental disorder;

and (2) [t]he child’s parents, guardian, or custodian are unable or unwilling to give proper

care and attention to the child and the child’s needs.” Cts. & Jud. Proc. § 3-801(f). Cts. &

Jud. Proc. § 3-801(s) defines “neglect” for CINA purposes as:

       the leaving of a child unattended or other failure to give proper care and
       attention to a child by any parent or individual who has permanent or
       temporary care or custody or responsibility for supervision of the child
       under circumstances that indicate:

              (1) That the child’s health or welfare is harmed or placed at
                  substantial risk of harm; or

              (2) That the child has suffered mental injury or been placed at
                  substantial risk of mental injury.

“[P]roper care and attention” is certainly a more nebulous standard than “necessary

assistance and resources for the physical needs of the child,” yet this definition of “neglect”

has been used in Cts. & Jud. Proc. § 3-801(s) since 2001, S.B. 660 (Md. 2001), and has



                                            - 14 -
never been declared unconstitutionally vague in a reported opinion by this Court or the

Court of Special Appeals.7

       Additionally, although not determinative on this issue of vagueness in the case at

bar, there is a multitude of cases applying the CINA definition of “neglect,” or discussing

neglect in the CINA context. See In re Priscilla B., 214 Md. App. 600, 631-32, 78 A.3d

500, 519-20 (2013) (discussing multiple factors supporting a trial court’s determination

that Priscilla was a CINA on the basis of neglect, including the condition of the home,

Priscilla’s appearance, and the lack of attention to Priscilla’s medical needs); Doe v.

Allegany Cty. Dep’t of Soc. Servs., 205 Md. App. 47, 52, 43 A.3d 1071, 1074 (2012)

(finding that a seventeen-year-old boy with paralysis from the waist down had been

neglected where his adoptive parents had refused to allow him back in their house, thus

depriving him of the medical assistance he required.); In re Adoption of Cadence B., 417

Md. 146, 150, 9 A.3d 14, 17 (2010) (discussing neglect where the parent had smoked drugs

in the presence of the child determined to be a CINA). These cases provide additional

notice of the point at which the State will interfere with ordinarily protected parenting

decisions, thereby reinforcing the conclusion that Crim. Law § 3-602.1’s definition of

“neglect” is not unconstitutionally vague.




       7
         According to a committee note in S.B. 660, the definition of neglect was added to
the CINA statute in 2001 “to coincide with the definition in [§ 5-701 of the Family Law
Article] and reflects practice in this area of law.” The Family Law Article has used a
definition of “neglect” similar to the one now used in the CINA statute since 1988. S.B.
708 (Md. 1987).
                                             - 15 -
       Regarding the child neglect statute, the “the necessary assistance and resources for

the physical needs of a minor” depends on what “is needed or required for the physical

well being” of the particular child, who may be seventeen, or in the case of A., three. See

M. WEBSTER’S NEW COLLEGIATE DICTIONARY at 828 (defining “necessary” as

that which is “absolutely needed” or “required”). However, there is no constitutional

problem with this fact-intensive standard, as the vagueness doctrine of the Fourteenth

Amendment:

       is not a principle designed to convert into a constitutional dilemma the
       practical difficulties in drawing criminal statutes both general enough to
       take into account a variety of human conduct and sufficiently specific to
       provide fair warning that certain kinds of conduct are prohibited.

Eanes v. State, 318 Md. 436, 459, 569 A.2d 604, 615 (1990) (quoting Colten v. Kentucky,

407 U.S. 104, 110, 92 S. Ct. 1953, 1957 (1972). This Court is only concerned with whether

a person “of common intelligence” must “guess at [the statute’s] meaning,” and a person

of common intelligence need not guess at what is necessary, or required, for the physical

needs of the child under their supervision. Id. (quoting Broadrick v. Oklahoma, 413 U.S.

601, 607, 93 S. Ct. 2908, 2913 (1973)).

       Regarding the requirement that the failure to provide necessary assistance or

resources “creates a substantial risk of harm to the minor’s physical health[,]” “substantial

risk” has a commonly accepted meaning and appears throughout Maryland’s penal statutes.

Cf. State v. Mahurin, 799 S.W.2d 840, 842 (Mo. 1990) (holding that Missouri’s child

endangerment statute provided notice of the prohibited act, and reasoning that “[t]he words

‘substantial risk’ have a plain and ordinary meaning cognizable by a person of ordinary


                                           - 16 -
intelligence.”); see, e.g., Crim. Law § 3-204(a)(1) (reckless endangerment); Crim. Law §

3-202 (assault in the first degree) Crim. Law § 3-1001(c) (threats to commit crimes of

violence); Crim. Law § 3-201(d) (defining “serious physical injury” and “physical injury

that… creates a substantial risk of death[.]”). Whether a substantial risk has been created

involves “an objective assessment of the degree of risk” created by the failure to provide

necessary assistance and resources to the minor. Cf. Minor v. State, 326 Md. 436, 442, 605

A.2d 138, 141 (1992) (Noting that, whether the defendant has created the “substantial risk

of death or serious physical injury” required under the reckless endangerment statute,

“entails an objective assessment of the degree of risk presented by the defendant’s reckless

conduct.”).

       Regarding this objective assessment, the majority appropriately borrows from the

reckless endangerment statute, Crim. Law § 3-204(a)(1), to note that the creation of a

substantial risk of harm “is measured by that which a reasonable person would have done

in the circumstances.” Maj. Slip Op. at 12-14 (discussing Jones v. State, 357 Md. 408,

427, 745 A.2d 396, 406 (2000), and Williams v. State, 100 Md. App. 468, 481, 641 A.2d

990, 996 (1994)). This construction of Crim. Law § 3-602.1—imposing a measure of

objective reasonableness on the actus reus of “creation of a substantial risk”— allows a

member of society to choose between lawful and unlawful conduct by adherence to a

familiar standard of conduct. This standard also provides a safeguard against the use of

hindsight to prosecute caregivers in scenarios where a minimum risk of harm materializes,

notwithstanding the reasonableness of the caregiver’s actions.



                                           - 17 -
       In light of the above, I would hold that the standard of conduct prescribed by Crim.

Law § 3-602.1 could be fairly understood by Petitioner. As discussed in further detail in

Section I, supra, Petitioner was fully aware that A. was a difficult child, and conceded that

it was inappropriate for D. to supervise A. Petitioner would therefore have been placed on

notice that leaving A. with D. overnight, without any way for D. to contact Petitioner,

would likely deprive A. of the necessities for his physical well-being, and that doing so

was not “objectively reasonable[.]” Maj. Slip Op. at 19.

       I would further hold that Crim. Law § 3-602.1 provided a fixed standard that, from

the perspective of law enforcement, was clearly applicable to Petitioner’s conduct.

According to Petitioner, the fact that Officer Walsh, after finding A. at the playground

without supervision on February 22, 2012, returned A. home with only D. and M. present,

“illustrates the lack of guidance the statute provides to law enforcement.”

       To the contrary, I believe law enforcement’s actions were reflective of the scienter

requirement in the child neglect statute. As discussed in detail above, Crim. Law § 3-602.1

required that Petitioner should have foreseen that her conduct would likely result in the

“failure to provide necessary assistance and resources for the physical needs … of a

minor[.]” Crim. Law § 3-602.1(a)(5)(i). In light of this mens rea requirement, it is highly

likely that law enforcement personnel, in this case Officer Walsh, would not know that a

crime had been committed until more circumstances regarding an individual case were

ascertained. This is because a child may be found in a situation where, despite the absence

of criminal neglect, there was a substantial risk to the child’s physical health. Therefore,

it is entirely reasonable that Officer Walsh, when discovering A. at the park, would not

                                           - 18 -
know that a crime has been committed until he became aware of the circumstances that

reflected a lack of child supervision. Accordingly, there was no reason to believe that a

law enforcement officer who returned A. to D.’s supervision, and waited to consult with

social workers before pursuing charges under Crim. Law § 3-602.1, was left without

“adequate guidelines” for enforcement of the statute. Officer Walsh’s actions simply

reflect that Crim. Law § 3-602.1 insulates innocent parenting mistakes from criminal

liability.

        In summation, I would hold that Crim. Law § 3-602.1 was not unconstitutionally

vague as applied to Petitioner, and that the evidence was sufficient to sustain Petitioner’s

conviction.




Greene and Watts, JJ., authorized me to state they join in this opinion.




                                           - 19 -
