STATE OF OKLAHOMA, Appellant, v. REBA J. VINCENT, Appellee.
Case Number: S-2015-0652
In the Court of Criminal Appeals of the State of Oklahoma
Decided: March 23, 2016
2016 OK CR 7
LUMPKIN, VICE PRESIDING JUDGE:
¶1 Aрpellee, Reba J. Vincent, was charged in Pittsburg County District Court Case No. CF-2014-853, with Count 1 - Child Neglect,
¶2 The appeal was automatically assigned to the Accelerated Docket of this Court. See Rule 11.2(A)(4), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2015). Oral argument was held on February 18, 2016. See Rule 11.2(E). On appeal, Appellant raises the following propositions of error:
1. The State of Oklahoma presented sufficient evidence to show probable cause thаt the Defendant committed the crime of Child Neglect, as defined by Oklahoma Law; and,
2. Should the Court find that the State has not met its burden in showing that the Defendant committеd the [crime] of Child Neglect, the Court should bind over on a finding that she committed the [crime] of Child Abuse, or - in the alternative - Child Endangerment.
The State argues that sufficient еvidence was presented to show that a crime was committed by Appellee. As set forth below, we agree.
¶3 The appeal record reflects that on December 26, 2014, Appellee was the driver of a vehicle that also held an adult passenger, a one or two year old child and two dogs. Appellee was stopped for a traffic violation. The police officers testifying at the Preliminary Hearing reported Appellee had slurred speech, bloodshot eyes and an odor coming from her that resembled an alcoholic beverage. They testified that Appellee‘s vehicle was thought to have been involved in a hit and run accident prior to being stopped for the traffic violation. At a subsequent breathalyzer test, Apрellee registered “.17“.
¶4 The Magistrate found the State offered no evidence to show that Appellee was related to the child; specifically, that there was no evidence that she was a parent, guardian, or person having control or custody of the child in the back seat of the vehicle as defined by Title 10A. He found that the only person the State proved to have a relationship with the child was the passenger who was identified as the child‘s father. The Magistrate concluded that the State failed to produce probable cause that the crimes of Child Neglect or Child Abuse were committed by Appellee. The Magistrate also concluded that the State produced no evidence of the crime of Child Endangerment because it failed to establish any relationship of the child to Appellee.
¶5 The purpose of the preliminary hearing is to establish probable cause that a сrime was committed and probable cause that the defendant committed the crime.
¶6 The confusion in this matter likely stems from this Court‘s decisions in Townsend v. State, 2006 OK CR 39, 144 P.3d 170, and Cox v. State, 2006 OK CR 51, 152 P.3d 244. The Court in Townsend held that a child neglect conviction requires a showing that thе defendant was a person responsible for the child victim‘s “health, safety or welfare.” Townsend, 2006 OK CR 39, ¶ 4, 144 P.3d 170, 171-172. The Court reached this conclusion to preclude the then-еxisting child neglect statute1 from being applied in a manner the Legislature clearly did not intend. Id. The Court in Cox likewise found that an essential element of the then-existing child sexuаl abuse statute2 was proof that the defendant was a person responsible for the “child‘s health, safety, or welfare.” Cox v. State, 2006 OK CR 51, ¶ 24, 152 P.3d 244, 253.
¶7 The Court‘s analyses in Cox and Townsend, however, have been rendered obsolete by a series of subsequent legislative enactments, or amendments, to the child neglect and child abuse statutes contained within Titles 10 and 21. Thus, this Court nеed only refer to the present-day language of
¶8 “Child Neglect,”
¶9 Likewise, the trial court‘s analyses of the charges of “Child Endangerment” and “Child Abuse” as applied to the facts presented in this record are erroneous. “Child Endangerment,”
¶10 Moreover, we have previously addressed persons liable under Section 852.1, Child Endangerment, as “any person having custody or control would include one standing in thе place of the parent or guardian, i.e., in loco parentis to the child” but, additionally, we found that the Legislature intended “a person having custody or control” to be interpreted “as they are commonly understood.” Oxley v. State, 1997 OK CR 32, ¶ 9, 941 P.2d 520, 523. Child Endangerment can be committed by a person who is the parent of the child, or is the guardian of the child, or one standing in the place of the parent or guardian, or can be any person having control over a child. Having “control” over a child would inсlude any driver, operator, or person in physical control of a vehicle who is under the influence of alcohol or other intoxicating substanсe while transporting or having a child or children in the vehicle. See
¶11 Turning finally to the offense of Child Abuse, pursuant to
¶12 Thus, from the facts presented in this case, we find the trial court abused its discrеtion in sustaining Appellee‘s demurrer. Sufficient evidence, taken in the light most favorable to the State, has been presented to show that a felony crime has been committed. This Court‘s previous decisions in Townsend and Cox, to the extent inconsistent with this opinion, are overruled.
DECISION
¶13 The order of the District Court of Pittsburg County sustaining Appellee‘s demurrer to the evidence is REVERSED and REMANDED to the Magistrate for further proceedings consistent with this opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2016), the MANDATE is ORDERED issued upon the filing of this decision.
AN APPEAL FROM THE DISTRICT COURT OF PITTSBURG COUNTY
THE HONORABLE MATTHEW SHEETS, MAGISTRATE
THE HONORABLE DARRELL G. SHEPHERD, DISTRICT JUDGE
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APPEARANCES AT TRIAL CHRISTINA A. BURNS J. MICHAEL MILLER |
APPEARANCES ON APPEAL CHRISTINA A. BURNS J. MICHAEL MILLER |
OPINION BY: LUMPKIN, V.P.J.
SMITH, P.J.: Concur
JOHNSON, J.: Concur
LEWIS, J: Concur
HUDSON, J.: Concur