HEATHER MYERS v. STATE OF MARYLAND
No. 297, September Term, 2019
In the Court of Special Appeals of Maryland
November 18, 2020
Graeff, Leahy, Battaglia (Lynne A., Senior Judge, Specially Assigned), JJ. Opinion by Graeff, J.
Circuit Court for Baltimore County, Case No. 03-K-18-2531. REPORTED.
Myers v. State, No. 297, September Term, 2019, Opinion by Graeff, J.
PRECEDENTIAL SIGNIFICANCE — SPLIT DECISIONS
The holding of a plurality decision of the Supreme Court is “that position taken by those Members who concurred in the judgments on the narrowest grounds.” State v. Falcon, 451 Md. 138, 161 (2017) (quoting Marks v. United States, 430 U.S. 188, 193 (1977)). In determining the precedential significance of a Court of Appeals decision without a majority opinion, the Court of Appeals follows a “somewhat similar approach.” Id., at 162. This approach analyzes whether there is a position adopted by a majority of the judges, whether or not they concurred in the judgment, including those set forth in dissenting opinions.
Where there is a majority opinion on one issue that resolves the case, statements of law set forth in concurring and dissenting opinions on a separate issue, even if joined by a majority of the judges, do not have precedential authority.
CRIMINAL LAW — NEGLECT OF A MINOR — CONSTITUTIONAL LAW — VOID FOR VAGUENESS
Circuit Court for Baltimore County
Case No. 03-K-18-2531
REPORTED
IN THE COURT OF SPECIAL APPEALS OF MARYLAND
No. 297
September Term, 2019
HEATHER MYERS
v.
STATE OF MARYLAND
Graeff,
Leahy,
Battaglia, Lynne A. (Senior Judge, Specially Assigned),
JJ.
Opinion by Graeff, J.
Filed: November 18, 2020
Appellant was charged in the Circuit Court for Baltimore County with neglect of a minor, in violation of
On appeal, appellant presents the following question for this Court‘s review, which we have reworded slightly:
Is
CR § 3-602.1 , the child neglect statute, unconstitutional because it is vague?
For the reasons set forth below, we answer that question “no,” and therefore, we shall affirm the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
On January 19, 2018, two days after her daughter‘s second birthday, S. N. dropped off Madi at appellant‘s residence. S.N. was a single mother working at St. Joseph‘s Medical Center, and she had hired appellant as her daycare provider on the recommendation of a friend. S.N. paid appellant, an unlicensed provider who had “watched several children throughout the years,” more than a hundred dollars a week to care for Madi. Appellant also was caring for her own four-year-old son. S.N., who considered appellant an attentive caregiver and a friend, was not aware that appellant was addicted to heroin.
S.N. left Madi with appellant at approximately 8:30 a.m. that morning. She went to a doctor‘s appointment, and when she called to check on Madi after her appointment at approximately 10:30 a.m., appellant reported that everything was fine. S.N. then went to work at St. Joseph Medical Center. At approximately 12:19 p.m., she checked her cell phone and saw that she had numerous missed calls from
I was not supposed to be on my phone, especially while on patient floors but I assumed it was urgent with so many missed calls from [appellant], so I called her back.
Upon calling her back, she told me that there was an accident and that I needed to pick Madi up and take her to the emergency room right away.
Thankfully, I had two nurses sitting in front of me who . . . calmed me down and told me what to ask. I proceeded to ask [appellant] two questions, one being if Madi was conscious. Two, if she was breathing. The reason I asked these two questions was because if she was unconscious or not breathing, I simply could not just pick her up and take her to the emergency room, she needed immediate care from EMS.
Upon asking these questions, she reiterated that I needed to come pick Madi up myself right away and take her to the emergency room. I then again asked if she was conscious and breathing, and [appellant] informed me that she was breathing and unconscious.
I informed [appellant] that I am unable to just pick her up and take her to the emergency room, that I was hanging up and she needed to call 911 right away. I also told her to keep her hand on her chest to ensure that she was breathing and to not move her in case of spinal cord injury.
She called 911, and I ran out of work.
At 12:22 p.m., after speaking with S.N., appellant called 911, reporting that Madi “had fallen from the top bunk.” The first responder on the scene found the child “on the floor, immobile, unresponsive and unconscious” next to a four-foot-high loft bed. Appellant told the officer that “Madi was placed on the loft bed for a diaper change,” and when appellant went “out to the living room area where the diapers were,” the child “must have fallen off the bed, because she had heard her fall when she was in the other room.”
When medics arrived moments later, they observed that the child “had raspy breathing,” and “her pupils were unevenly dilated, indicating that there was blood or brain injury.” Because “[s]he was suffering from high intracranial pressure,” i.e., brain swelling, she was transported by helicopter from a nearby school to Johns Hopkins.
Madi survived after a series of emergency and surgical interventions, including the removal of a portion of her skull. As a result of her injuries, however, which included “acute subdural hemorrhage causing a midline shift of the brain,” she was left blind, and she will forever function at the level of a 3- to 4-month old child, who needs 24-hour care. S.N., who has a bachelor‘s degree in nursing, quit her nursing job to become Madi‘s full-time care provider.
After doctors concluded that the child‘s injuries were inconsistent with a four-foot fall in the manner appellant had described, the police re-interviewed appellant, and she changed her account of what happened. Appellant admitted that she had used heroin the night before Madi‘s accident, but she denied that she was under the influence when she was caring for Madi.1 She stated that, on the day of the accident, “she was getting sick from withdrawal and was not feeling well,” so she laid down on the couch and fell asleep for “over 30 minutes.” When she went to sleep, her son was watching his iPad, and
Appellant stated that she “woke up to a thud.” She ran into the bedroom and saw Madi unconscious. She picked Madi up and “tried to wake her up but could not.” Appellant was not able to explain how the injuries to Madi occurred, but she indicated that Madi recently had been climbing on the loft bed. When Madi‘s doctor was advised that she might have climbed up to the top rung of the ladder on the loft bed, he agreed that her head injuries could have been caused by her falling back and hitting the back of her head.
Appellant was charged with one count of neglecting a minor in violation of
On September 11, 2018, appellant filed a motion to dismiss the charge, asserting, among other things, that the statute was unconstitutionally vague because it failed to
“provide fair notice of the conduct proscribed” or “provide explicit standards of enforcement.” She argued that the statute does not identify what conduct might qualify as “neglect,” asserting that the statute does not make clear what constitutes “necessary assistance and resources,” the child‘s “physical needs,” and a “substantial risk of harm.”
Following a hearing, the circuit court denied appellant‘s motion. The court found that
On April 17, 2019, appellant entered a conditional guilty plea. The court sentenced her to five years’ imprisonment, all but 18 months suspended, and three years’ supervised probation.
This appeal followed.
STANDARD OF REVIEW
“[T]he standard of review of the grant or denial of a motion to dismiss is whether the trial court was legally correct.” Howard v. Crumlin, 239 Md. App. 515, 521 (2018) (quoting Blackstone v. Sharma, 461 Md. 87, 110 (2018)), cert. denied, 463 Md. 153 (2019). We review the denial of a motion to dismiss de novo. D.L. v. Sheppard Pratt Health Sys., Inc., 465 Md. 339, 350 (2019); Lipp v. State, 246 Md. App. 105, 110 (2020).
DISCUSSION
Appellant contends that
The State contends that appellant‘s challenge “must fail because the constitutional vagueness of
In her reply brief, appellant argues that Hall is not “binding precedent.” She asserts that the “common thread” in the different opinions is that the evidence “was insufficient to sustain Ms. Hall‘s conviction for neglect.” Accordingly, appellant argues that “the positions of the concurring and dissenting judges may be persuasive authority,” but “they are not binding on this Court.”
I. Precedential Value of Hall v. State
We begin our analysis with a review of the Court of Appeals’ decision in Hall to determine whether, as the State alleges, that decision constitutes binding precedent that
The Court of Appeals ultimately reversed Ms. Hall‘s conviction, but the case generated three separate opinions. Judge Battaglia, joined by Judge Adkins, wrote an opinion announcing the judgment of the Court. Judge Battaglia determined that the evidence was not sufficient to support Ms. Hall‘s conviction. Id., at 327. Based on that conclusion, and the policy to decide constitutional issues only when necessary, Judge Battaglia determined that the Court did not need to reach the issue whether
Judge McDonald wrote a concurring opinion, joined by Chief Judge Barbera, stating that a holding that the evidence was insufficient to support Ms. Hall‘s conviction “necessarily entails a decision that the statute is not unconstitutionally vague.” Id., at 337. Judge McDonald explained:
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.
Judge Hotten wrote a dissenting opinion. Id., at 339-54 (Hotten, J., dissenting). This opinion, which was joined by Judge Greene and Judge Watts, stated
Thus, four judges, Judges Battaglia, Adkins, McDonald, and Chief Judge Barbera, determined that the evidence was insufficient to support Ms. Hall‘s conviction, resulting in a majority opinion to reverse Ms. Hall‘s conviction. Five judges, however, Judges Hotten, Greene, Watts, McDonald, and Chief Judge Barbera, concluded, in concurring and dissenting opinions, that
The State contends that, because five judges in Hall determined that
In Falcon, 451 Md. at 161, the Court stated that, in a Supreme Court case that lacks a majority opinion, it follows the ”Marks approach,” referring to Marks v. United States, 430 U.S. 188, 193 (1977). It explained that approach as providing that, “[w]hen a fragmented . . . Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Falcon, 451 Md. at 161.
The Court then explained that, in “determining the precedential significance of a case without a majority opinion” in the Court of Appeals, it follows a “somewhat similar approach.” Id., at 162. In support, the Court cited to Cure v. State, 421 Md. 300, 318, 321 (2011), where the Court adopted the reasoning of a dissent in a “fractured” decision, noting that, “[f]or purposes of stare decisis . . . this is a proposition that garnered the support of four Judges.” It also cited to State v. Giddens, 335 Md. 205, 213 n.6 (1994), where the Court held that the issue whether a crime bore on witness credibility was a matter of law, noting the parties’ agreement with this standard and that four judges, in concurring and dissenting opinions, in a prior opinion had come to that conclusion.
In Falcon, 451 Md. at 171-72, the Court examined the legal propositions set forth in the four separate opinions in a prior case with no majority opinion. The Court determined that, although there were disagreements in the different opinions, there was some common ground, and all of the opinions would support the result reached in Falcon. Id., at 172-73.
We note initially that the Court of Appeals’ approach to interpreting its split decisions is “somewhat similar” to the Marks approach in interpreting split Supreme Court decisions, but it is different. The Marks approach provides that “the holding of the [Supreme] Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks, 430 U.S. at 193 (emphasis added). The approach that the Court of Appeals has adopted for determining the precedential significance of a plurality opinion, by contrast, involves looking for a position adopted by a majority of the judges in all the opinions, whether or not they concurred in the judgment, including those set forth in dissenting opinions. See Shane M.K. Doyle, Comment,
The analysis set forth in Falcon, however, is applicable when “determining the precedential significance of a case without a majority opinion.” Falcon, 451 Md. at 162. In Hall, there was a majority opinion, i.e., that the case should be reversed based on the insufficiency of the evidence. The question, then, is whether a legal proposition on a different issue that was supported by five judges is binding precedent or persuasive dicta.
We addressed a similar situation in Faison v. MCOCSE, 235 Md. App. 76 (2017). In that case, we addressed the impact of a prior case, Davis v. Wicomico County Bureau, 447 Md. 302 (2016), on Faison‘s argument that, although he signed an affidavit of parentage, he was entitled to an order authorizing genetic testing. Faison, 235 Md. at 83-84. Davis, similar to Hall, generated three separate opinions. The opinion announcing the judgment of the Court, comprised of three judges, determined that Davis’ claim was barred by the doctrine of res judicata. Davis, 447 Md. at 311. Similar to Hall, the concurring opinion agreed on the issue deciding the case, providing a four-vote majority opinion. The dissenting opinion, comprised of three judges, was of the view that the claim was not barred by res judicata, and Davis should be granted a genetic test. Id., at 337-57. Because the concurring opinion agreed with the dissent that, if the claim had not been barred by res judicata, Davis had the right to genetic testing, id., at 336-37, a majority of the judges concluded that, generally, a putative father, after executing an affidavit of parentage, could obtain a genetic test.
In assessing the effect of the 3-1-3 Davis decision, Judge Nazarian, writing for this Court, stated that “the Davis concurrence-plus-dissent‘s statutory analysis qualifies officially as dicta.” The Court went on to state, however, that, “[d]icta or not, . . . the dissent has analyzed the statute correctly.” Faison, 235 Md. App. at 84. See also Boone v. Youngbar, 234 Md. App. 288, 298 (2017) (recognizing the challenge in determining the impact of the fractured vote in Davis on the ability of a father who signed an affidavit of parentage to challenge parental status with a genetic test, but not deciding the issue because it was not raised).
As the Court in Faison indicated, and contrary to the State‘s argument here, where there is a majority opinion on one issue that resolves the case, statements of law set forth in concurring and dissenting opinions on a separate issue, even if joined by a majority of the judges, do not have precedential authority. Thus, we are not, as argued by the State, bound by precedent from the Court of Appeals “that 3-602.1 was not unconstitutionally vague.”3
II. Constitutionality of CR § 3-602.1
The circuit court found that
“In addressing a claim involving the constitutionality of a statute, we begin ‘with a presumption that the statute is constitutional.‘” Beattie v. State, 216 Md. App. 667, 678 (2014) (quoting Walker v. State, 432 Md. 587, 626 (2013)). The person challenging the statute “bears the burden of overcoming this presumption and establishing the statute‘s unconstitutionality.” Id.
The United States Supreme Court has stated that “a vague law is no law at all.” United States v. Davis, 139 S. Ct. 2319, 2323 (2019). When a legislature enacts a criminal law, it must write the statute so that it “give[s] ordinary people fair warning about what the law demands of them.” Id. Vague laws leave “people with no sure way to know what consequences will attach to their conduct.” Id. A statute will be deemed unconstitutionally vague if it (1) “fails to give ordinary people fair notice of the conduct it punishes,” or (2) is “so standardless that it invites arbitrary enforcement.” Johnson v. United States, 576 U.S. 591, 595 (2015)).
This Court has explained the first prong of a vagueness analysis, as follows:
“[A] statute must be ‘sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.‘” Livingston, 192 Md. App. at 568, 995 A.2d 812 (quoting Eanes v. State, 318 Md. 436, 458-59, 569 A.2d 604 (1990)). The Court of Appeals has explained that “[t]he standard for determining whether a statute provides
fair notice is ‘whether persons of “common intelligence must necessarily guess at [the statute‘s] meaning.“‘” Galloway, 365 Md. 599, 615, 781 A.2d 851 (2001) (quoting Williams v. State, 329 Md. 1, 8, 616 A.2d 1275 (1992)).
State v. Phillips, 210 Md. App. 239, 266 (2013). A statute will not fail for vagueness “if the meaning of the words in controversy can be fairly ascertained by reference to judicial determinations, the common law, dictionaries, treatises or even the words themselves, if they possess a common and generally accepted meaning.” Id., at 266 (quoting Livingston, 192 Md. App. at 569). Accord Galloway, 365 Md. at 615. “[T]he vagueness doctrine does not require absolute precision or perfection.” McCree, 441 Md. at 20 (quoting Galloway, 365 Md. at 634).
The second prong of a vagueness analysis considers whether the statute “provide[s] ‘legally fixed standards and adequate guidelines for police, judicial officers, triers of fact and others whose obligation
“eschew arbitrary enforcement in addition to being intelligible to the reasonable person.” Galloway, 365 Md. at 615-16, 781 A.2d 851 (quoting Williams, 329 Md. at 9, 616 A.2d 1275). “[A] statute is not unconstitutionally vague merely because it allows for the exercise of some discretion on the part of law enforcement and judicial officials.” Id., at 616, 781 A.2d 851. Rather, “[i]t is only where a statute is so broad as to be susceptible to irrational and selective patterns of enforcement that it will be held unconstitutional under this second arm of the vagueness principle.” Id.
Phillips, 210 Md. App. at 266.
Appellant contends that
The Court of Appeals has explained the distinction between a facial challenge and “as-applied” challenge, as follows:
An as-applied challenge is “a claim that a statute is unconstitutional on the facts of a particular case or in its application to a particular party.” As-Applied Challenge, Black‘s Law Dictionary (10th ed. 2014). By contrast, a facial challenge is “[a] claim that a statute is unconstitutional on its face — that is, that it always operates unconstitutionally.” Facial Challenge, Black‘s Law Dictionary (10th ed. 2014). In other words, to be successful, a facial challenge “must establish that there is no set of circumstances under which the [statute] would be constitutional[.]” Harrison-Solomon v. State, 442 Md. 254, 287, 112 A.3d 408, 428 (2015) (citation omitted).
Motor Vehicle Admin. v. Seenath, 448 Md. 145, 181 (2016) (footnote omitted). Accord Pizza di Joey v. Mayor and City Council of Baltimore, 470 Md. 308, 361 (2020). “A facial challenge to a legislative Act is . . . the most difficult to mount successfully.” Whittington v. State, 246 Md. App. 451, 471 (2020) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)).
Generally, a vagueness challenge to a statute “is based on the application of the statute to the ‘facts at hand.‘” Galloway, 365 Md. at 616 (quoting Bowers v. State, 283 Md. 115, 122 (1978)). The Court of Appeals has explained, however, that a facial challenge is appropriate “when a statute threatens to chill constitutionally protected conduct (particularly conduct protected by the First Amendment).” Pizza di Joey, 470 Md. at 362.4 Accord Ayers v. State, 335 Md. 602, 624-25 (1994) (Where a “statute appears to impinge upon fundamental constitutional rights such as the First Amendment guarantees of free speech and assembly, the statute is tested for vagueness on its face because its indefiniteness may have a chilling effect on the exercise of First Amendment liberties.“), cert. denied, 513 U.S. 1130 (1995). “This principle, in essence, is a rule of standing which allows a defendant to challenge the validity of a statute even though the statute as applied to the defendant is constitutional.” Id., at 625.
Appellant contends that a facial challenge to the validity of the statute is warranted here because “the right to rear a
Court of Appeals, however, has addressed a facial challenge involving a vagueness claim in the context of a fundamental constitutional right other than one that the First Amendment protects. Seenath, 448 Md. at 183.
We need not resolve whether this case involves a fundamental right permitting a facial challenge. Taking a cue from Galloway, 365 Md. at 627, we conclude that “[w]hether [
(a) Definitions. — (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) Prohibition. — 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) Penalty. — 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) Sentence. — 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.
We begin our analysis by addressing the first consideration in a vagueness challenge, whether the statute provides notice of the conduct that is prohibited. Appellant contends that it does not provide such notice because it “fails to identify what conduct might qualify as neglect.” In support, she asserts that the meaning of the phrases “necessary assistance and resources for the physical needs or mental health of a minor” and “substantial risk of harm to the health” of the minor are not clear.
As the Court of Appeals has explained, in assessing whether the statute provides fair notice, we look to whether the meaning of the words in the statute “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, 365 Md. at 615. We also note that when, as here, a statute has a specific intent requirement, the concern that a statute is unconstitutionally vague may be “ameliorated.” Id., at 633 (quoting Hill v. Colorado, 530 U.S. 703, 732 (2000)).
In Hall, Judge Hotten concluded, and four other judges agreed, that “the meaning of the terms in [CR]
In light of the precedent interpreting “intent” in other criminal statutes, [Ms. Hall] 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. . . .” 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 (1992) (“‘[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.
Id., at 344-45. We agree that the intent requirement weighs against a finding that the statute is unconstitutionally vague because it “insulates innocent parenting mistakes from criminal liability.” Id., at 354.
With respect to appellant‘s argument that
[T]he 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.
Id., at 346. Judge Hotten stated that this “common understanding of physical needs is confirmed” by the use of similar terms in other statutes, including
Additionally, as Judge Hotten explained, “the necessary assistance and resources for the physical needs of a minor” depends on the age and needs of the particular child, and there “is no constitutional problem with this fact-intensive standard.” Id., at 352. The vagueness doctrine “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.” Id. (quoting Eanes v. State, 318 Md. 436, 459 (1990)).
Other courts, in rejecting vagueness challenges, similarly have noted that the type of conduct that is covered in neglect and child endangerment statutes “defies precise definition” because the “number and kind” of “situations where a child‘s life or health may be imperiled are infinite.” Campbell v. State, 999 P.2d 649, 658 (Wyo. 2000) (quoting State v. Crowdell, 451 N.W.2d 695, 699 (Neb. 1990)). Accordingly, statutes regulating the “relationship between parents or guardians . . . must necessarily provide some flexibility while at the same time effectuating the [S]tate policy of protecting children.” Id., at 657 (quoting Keser v. State, 706 P.2d 263, 267 (Wyo. 1985)).
In Campbell, 999 P.2d at 658, the Supreme Court of Wyoming held that the word endanger in a statute, which prohibited a parent or custodian of a child from “[k]nowingly or with criminal negligence cause, permit or contribute to the endangering of the child‘s life or health by violating a duty of care, protection or support,” was not unconstitutionally vague. Id., at 658. It explained that the statute was
necessarily broad to achieve the legislative purpose of protecting children against conduct that exposes a minor child‘s life or health to danger or the peril of probable harm or loss. The statute is not unconstitutionally vague because it does not enumerate the kinds of prohibited conduct; it is sufficiently definite to give notice concerning the criminal
conduct prohibited by the statute and does not violate the due process right to know what criminal conduct is proscribed.
Turning back to
necessary, or required, for the physical needs of the child under their supervision.” Hall, 448 Md. at 352 (Hotten, J., dissenting). We agree.
With respect to appellant‘s argument that the statute is vague because it offers no guidance about the meaning of the phrase “substantial risk of harm,” we are not persuaded. As Judge Hotten noted in Hall, the term “‘substantial risk’ has a commonly accepted meaning” and is found in many penal statutes. Id. (citing as examples
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.
Other courts similarly have held that the term “substantial risk” does not render a child endangerment statute unconstitutionally vague. See State v. Anspach, 627 N.W.2d 227, 232 (Iowa 2001) (rejecting vagueness claim regarding endangerment statute prohibiting knowingly acting “in a manner that creates a substantial risk to a child or minor‘s physical, mental or emotional health or safety,” stating that phrase “substantial
risk” is “defined in other contexts and enjoys a fairly ascertainable meaning“); State v. Mahurin, 799 S.W.2d 840, 842 (Mo. 1990) (Child endangerment statute was not unconstitutionally vague, even if reasonable persons could differ on whether particular conduct created a “substantial risk” to the well-being of child, because the words “substantial risk” have a “plain and ordinary meaning cognizable by person of ordinary intelligence.“), cert. denied, 502 U.S. 825 (1991).
Based on this analysis of the statute as a whole, we hold that
Moreover, we hold that the statute was not unconstitutionally vague as applied to appellant. Although appellant claims that she had “absolutely zero notice of what the Child Neglect Statute proscribes,” the constitutional standard we apply is not whether appellant actually had such notice, but whether the “statute define[s] the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary
We conclude that a person of ordinary intelligence and experience in appellant‘s circumstances would have understood that
fell asleep and failed to supervise the two-year-old in her care because she consumed heroin the night before and was suffering from withdrawal. After the child suffered a severe head injury while she had left the child unsupervised, she then failed to seek prompt emergency medical care for the child. A person of ordinary intelligence could understand that this conduct was encompassed by
JUDGMENT AFFIRMED. COSTS TO BE PAID BY APPELLANT.