State v. Bolze-Sann

• Decision Date: 19 June 2015
• Docket Number: 105,297.
• Citation: 352 P.3d 511,302 Kan. 198
• Parties: STATE of Kansas, Appellee, v. Michelle BOLZE–SANN, Appellant.
• Court: Kansas Supreme Court

302 Kan. 198

352 P.3d 511

STATE of Kansas, Appellee

v.Michelle BOLZE–SANN, Appellant.

105,297.

Supreme Court of Kansas.

June 19, 2015.

Rick Kittel, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Jodi E. Litfin, assistant district attorney, argued the cause, and Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

Opinion

The opinion of the court was delivered by LUCKERT, J.:

In this tragic case, an infant died from respiratory failure after becoming trapped between the mattress and footboard of an adult bed at his daycare provider's home. The State filed criminal charges, and a jury convicted daycare provider Michelle Bolze–Sann of involuntary manslaughter and aggravated endangering a child. Bolze–Sann appealed and before us raises seven issues. Three of her issues relate to the sufficiency of the evidence relevant to proving whether she acted recklessly, which is an element inherent in both crimes as charged. Two other issues relate to alleged errors in instructing the jury: One of these issues relates to the meaning of recklessness and the other to the impact of a daycare licensing regulation on Bolze–Sann's guilt or innocence. Her other two issues raise procedural errors in the conduct of the trial, specifically in the manner of answering a question from the jury and of accepting the jury's verdict.

A panel of the Court of Appeals first considered these issues. The panel affirmed Bolze–Sann's convictions, finding some issues had not been preserved, others lacked merit, and one constituted error—i.e., the district court failed to assure that Bolze–Sann was present when the court and counsel prepared a response to a question asked by the jury during deliberations. The panel held that error was harmless. State v. Bolze–Sann, No. 105,297, –––Kan.App.2d ––––, 2012 WL 3135701 (Kan.App.2012) (unpublished opinion). Bolze–Sann requested this court's review on some, but not all, of the issues the Court of Appeals considered. We granted her petition for review and now affirm Bolze–Sann's convictions.

Facts and Procedural Background

Bolze–Sann operated a licensed daycare facility in her home. Zachary Typer, the victim in this case, began attending her facility in February 2007. At the time of Typer's death on July 2, 2007, he was almost 6 months old. That day, Bolze–Sann placed Typer on an adult bed to nap even though her licensed daycare was subject to regulations promulgated by the Kansas Department of Health and Environment, including K.A.R. 28–4–116(b)(2)(A) (2009). At the time of Typer's death, that regulation provided: “Napping facilities ... shall be provided as follows: A crib or playpen with slats not more than 2 3/8 inches apart or equipped with bumpers shall be used for each child under 18 months.”

Typer's parents testified at trial that they had instructed Bolze–Sann to put Typer in a crib or playpen for his naps and that Bolze–Sann had confirmed she would. Typer's parents also testified that on several occasions they discovered Typer in an adult bed, but Bolze–Sann had always assured them Typer was on the bed for a reason other than napping (such as diaper changing). Typer's mother testified that in June 2007 she specifically reiterated to Bolze–Sann that Typer was to nap in a crib or playpen, and she further testified that she told Bolze–Sann about Typer's rapidly increasing mobility, which would make it particularly unsafe for him to be on an adult bed even for a short period of time. Typer's mother testified that Bolze–Sann had again assured her she would never place an infant in an adult bed for naps.

But some time during the morning on July 2, 2007—according to trial testimony, between 10:30 and 11:30 a.m.—Bolze–Sann placed Typer down for a nap on a queen-sized bed in the bedroom of her teenage daughter. She arranged a ring of pillows and blankets around Typer. She checked on Typer around 12:30 p.m. and noticed he had moved within the ring of pillows; she moved Typer back to the center of the ring. Trial testimony from police officers indicated that Bolze–Sann at some point claimed to have checked on Typer at least one more time. Bolze–Sann later experienced a migraine headache, and she took a muscle relaxer and rested on the couch. Her daughter came home and heard Typer crying, but Bolze–Sann said not to get him because she had just laid him down for a nap.

Bolze–Sann's daughter eventually went to her bedroom to take a nap, but she never saw Typer and assumed he was sleeping in a different room. About an hour later, Bolze–Sann discovered Typer wedged between the mattress and footboard of the queen-sized bed. He was unresponsive. Bolze–Sann directed her daughter to call 911 and began performing CPR. Emergency responders could not detect any cardiac activity or signs of blood circulation on their arrival. Typer was pronounced dead a short time later. An autopsy revealed respiratory failure, secondary to positional asphyxia

(i.e., his respiratory passages were obstructed), which resulted in suffocation and caused his death.

Analysis

Three of Bolze–Sann's appellate issues allege that the State failed to present sufficient evidence. In each, she focuses on an alleged failure of the State to prove that her conduct was reckless. She essentially makes the same factual argument regarding the meaning of recklessness in each of the three issues, but she recasts the basis for her arguments by phrasing them in terms of the State's failure to present sufficient evidence of: (1) probable cause at her preliminary hearing; (2) the elements at trial; and (3) each of the alternative means of involuntary manslaughter presented to the jury—i.e., an unintentional killing done recklessly or an unintentional killing done in the commission of aggravated endangering a child. See K.S.A. 21–3404(b) (defining involuntary manslaughter); K.S.A. 21–3608a(a)(2) (defining aggravated endangering a child). Under any theory, Bolze–Sann's arguments fail.

Issue 1:The district court properly denied Bolze–Sann's pretrial motion to dismiss.

We first address her argument that the district court erred in denying her pretrial motion to dismiss. In the motion, she argued the evidence at her preliminary examination was insufficient, as a matter of law, to establish probable cause that she had committed the crimes of aggravated endangering a child or involuntary manslaughter. See K.S.A. 22–2902 (defining State's burden of establishing probable cause during preliminary examination). The district court denied the motion. On appeal, the State asserts Bolze–Sann filed her motion to dismiss outside the statutory time limit for such motions. The State's argument determines this issue.

K.S.A. 22–3208(4) defines the time limits for filing a motion to dismiss. At the time of Bolze–Sann's motion, the statute required a defendant to seek dismissal no later than “20 days after the plea is entered.” See L. 2010, ch. 135, sec. 18 (extending the time period from 20 days to 21). The failure to comply with this time limitation “constitutes a waiver and precludes review on appeal.” State v. McClain, 258 Kan. 176, 185, 899 P.2d 993 (1995) ; see also State v. Weigel, 228 Kan. 194, 201, 612 P.2d 636 (1980) ; State v. Smith, 215 Kan. 34, 37, 523 P.2d 691 (1974).

Here, Bolze–Sann filed her motion to dismiss more than 100 days after she entered her plea. Accordingly, under the plain language of K.S.A. 22–3208(4), her motion was untimely, and she has waived her argument regarding the district court's handling of her motion. See McClain, 258 Kan. at 185, 899 P.2d 993.

Issue 2:Sufficient evidence supported Bolze–Sann's convictions.

We next address Bolze–Sann's argument that there was insufficient evidence at trial to sustain her convictions of involuntary manslaughter and aggravated endangering a child.

“ ‘When examining the sufficiency of the evidence in a criminal case, the standard of review is whether, after reviewing all the evidence in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ ” State v. Ortega, 300 Kan. 761, 769, 335 P.3d 93 (2014) (quoting State v. Raskie, 293 Kan. 906, 919–20, 269 P.3d 1268 [2012] ). In reviewing all the evidence in the light most favorable to the prosecution, we will not “reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence.” Raskie, 293 Kan. at 920, 269 P.3d 1268. Rather, we examine all the evidence favorable to the prosecution against “the essential elements of a charge” to see if sufficient evidence supported all necessary elements. State v. Pratt, 255 Kan. 767, 768, 876 P.2d 1390 (1994) ; see State v. Murray, 285 Kan. 503, 537–38, 174 P.3d 407 (2008), abrogated on other grounds by State v. Marshall, 294 Kan. 850, 281 P.3d 1112 (2012).

Here, the district court instructed the jury that to establish the essential elements of involuntary manslaughter the State had to prove that Bolze–Sann unintentionally killed Typer and that the killing was done either recklessly or while in the commission of a felony. In this case, the underlying felony was charged as aggravated endangering a child. See K.S.A. 21–3404(b). To find Bolze–Sann guilty of aggravated endangering a child, the jury had to be unanimously convinced beyond a reasonable doubt that she recklessly caused or permitted Typer to be placed in a situation in which his life, body, or health was injured or endangered. See K.S.A. 21–3608a(a)(2).

In focusing on the insufficiency of the evidence of recklessness, an element of both involuntary manslaughter and aggravated endangering a child, Bolze–Sann argues her conduct was not “reckless” for two reasons. First, she contends the State did not show that she realized or should have realized the particular danger of positional asphyxiation

. Second, Bolze–Sann disputes whether any danger was “imminent....