State v. Bolze-Sann, 352 P.3d 511

Background

Michelle Bolze-Sann operated a licensed in-home daycare; on July 2, 2007 she placed 6‑month‑old Zachary Typer to nap on an adult (queen) bed despite a regulation requiring cribs or playpens for children under 18 months.
Parents had instructed Bolze‑Sann to use a crib/playpen and repeatedly been assured she would; Bolze‑Sann earlier confirmed knowledge of licensing rules.
Bolze‑Sann placed a pillow/blanket "barrier ring" around Typer, checked on him once or twice, then left him while she rested; Typer was later found wedged between the mattress and footboard and died of positional asphyxia.
The State prosecuted Bolze‑Sann for involuntary manslaughter (alternative means: reckless unintentional killing or killing during aggravated endangering) and aggravated endangering a child (knowing/ reckless placement causing danger); a jury convicted on both counts.
On appeal to the Kansas Supreme Court Bolze‑Sann raised seven issues: sufficiency of evidence (recklessness), jury unanimity as to alternative means, jury instructions (definition of "imminence" and treatment of the licensing regulation), trial procedure errors (handling a jury question during deliberations and jury polling).

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Bolze‑Sann)	Held
1. Timeliness of pretrial motion to dismiss	Motion was untimely under K.S.A. 22‑3208(4); thus waive review	Motion to dismiss for insufficient probable cause at prelim should be considered	Motion untimely (filed >100 days after plea); argument waived; district court properly denied motion
2. Sufficiency of evidence of recklessness for convictions	Evidence (regulatory knowledge, parent warnings, pillow ring, ignoring crying) permits reasonable juror to find recklessness and imminent danger	Argues State failed to prove she realized/should have realized the specific danger (positional asphyxiation) or that danger was imminent	Affirmed: State need not prove defendant foresaw the precise injury; substantial evidence of recklessness and imminence exists
3. Jury unanimity re: alternative means for involuntary manslaughter	Substantial evidence supports each alternative means so unanimity as to means not required	Contends State failed to present substantial evidence for each alternative means, depriving unanimous verdict	Affirmed: substantial evidence supports both reckless theory and aggravated‑endangering theory; no unanimity violation
4. Jury instructions: definition of "imminence"	No additional definition required; term is commonly understood and instructions adequate	Court should have defined "imminence" (per White) — omission was clear error	No error: "imminence" is commonly comprehensible; failure to define not legally erroneous

Key Cases Cited

State v. Ortega, 300 Kan. 761 (Kan. 2014) (sufficiency‑of‑evidence standard)
State v. Raskie, 293 Kan. 906 (Kan. 2012) (appellate review of conflicting evidence and credibility)
State v. Pratt, 255 Kan. 767 (Kan. 1994) (review focused on essential elements)
State v. Murray, 285 Kan. 503 (Kan. 2008) (evidence review principles)
State v. Gatlin, 292 Kan. 372 (Kan. 2011) (recklessness requires knowledge of putting others in imminent danger)
State v. Deal, 293 Kan. 872 (Kan. 2012) (reckless act requires knowledge victim is in imminent danger)
State v. Anderson, 270 Kan. 68 (Kan. 2000) (foreseeability of harm standard)
State v. Jenkins, 272 Kan. 1366 (Kan. 2002) (imminence can encompass ongoing risk)
State v. White, 284 Kan. 333 (Kan. 2012) (discussion of imminence vs. immediate)
State v. Hernandez, 253 Kan. 705 (Kan. 1993) (self‑defense/imminence analysis)
State v. Cummings, 297 Kan. 716 (Kan. 2013) (endangering statutes comparison)
State v. Burns, 295 Kan. 951 (Kan. 2012) (procedure for answering written jury question after consulting counsel)
State v. Wells, 296 Kan. 65 (Kan. 2012) (holding defendant must be present for court’s consultation with counsel but written delivery to jury is acceptable)
State v. King, 297 Kan. 955 (Kan. 2013) (holding written answer must be delivered in open court with defendant present)
State v. Bowen, 299 Kan. 339 (Kan. 2014) (applied King; procedural error in answering jury question)
State v. Verser, 299 Kan. 776 (Kan. 2014) (applied King; answered jury‑question procedure and harmless‑error analysis)
Crease v. State, 252 Kan. 326 (Kan. 1993) (judge‑juror conference is critical stage requiring defendant’s presence)
State v. McGinnes, 266 Kan. 121 (Kan. 1998) (oral ex parte communications with jury violate Sixth Amendment)
State v. Coyote, 268 Kan. 726 (Kan. 2000) (discussed written jury questions; ambiguous on requirement to read answer in open court)