State v. Bolze–Sann
| Decision Date | 27 July 2012 |
| Docket Number | No. 105,297.,105,297. |
| Citation | 281 P.3d 597 |
| Parties | STATE of Kansas, Appellee, v. Michelle M. BOLZE–SANN, Appellant. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Shawnee District Court; Evelyn Z. Wilson, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., MARQUARDT and HILL, JJ.
Michelle M. Bolze–Sann appeals her convictions of one count of involuntary manslaughter and one count of aggravated endangering a child. Bolze–Sann was convicted by a jury after evidence was presented at trial that a 5–month–old child, Zachary Typer, died while in Bolze–Sann's care. It is undisputed that Bolze–Sann placed Zachary on a bed for a nap instead of in a crib or playpen and that Zachary was pinned between the bed's mattress and footboard. It was subsequently determined that Zachary died as a result of respiratory failure, secondary to positional asphyxia. Although Bolze–Sann raises several issues on appeal, we find none of them to require reversal of the jury's verdict. Thus, we affirm Bolze–Sann's convictions.
Bolze–Sann was a licensed daycare provider who operated a daycare in her home. Zachary, who was born on January 4, 2007, began attending daycare at Bolze–Sann's residence on February 19, 2007. According to Zachary's parents, they discussed their son's increasing mobility with Bolze–Sann and told her not to put him on a bed for naps.
Unfortunately, on the morning of July 2, 2007, Bolze–Sann placed Zachary on a bed in her 15–year–old daughter Ashley's bedroom for a nap because one of her cribs was broken and the other one was occupied. When she placed him on the bed, Bolze–Sann put a ring of pillows and blankets around Zachary. Around 12:30 p.m., Bolze–Sann checked on Zachary and he was still asleep on the bed. Although he had moved a little, Zachary was still lying within the pillows and blankets at that time.
At some point after Bolze–Sann checked on Zachary, Ashley arrived home and heard him crying. Her mother told her not to go get Zachary because she had just laid him down for a nap. Later, Bolze–Sann's 5–year–old daughter, Sierra, told Ashley that Zachary was sleeping in the crib in Sierra's room. So Ashley took her 9–month–old infant cousin into her bedroom and lay down with her on her bed for a nap.
Ashley and her infant cousin slept for about an hour before Bolze–Sann came into the bedroom and asked where Zachary was. Ashley told her mother that Zachary was in the crib in Sierra's room. When Bolze–Sann went to look in the crib, however, Zachary was not there. Bolze–Sann then returned to Ashley's bedroom and found Zachary wedged between the mattress and the footboard.
Dispatch records show that 911 was called at 2:29 p.m. and that a police officer arrived at Bolze–Sann's home about 3 minutes later. When the police officer arrived, he saw Bolze–Sann giving CPR to Zachary in her living room. Shortly thereafter, the fire department and an ambulance arrived at the house.
A paramedic carried Zachary to the ambulance and hooked him up to a monitor, while continuing CPR. In the ambulance, the paramedic briefly stopped CPR to determine whether Zachary had any cardiac arrhythmia. Unfortunately, the monitor showed no cardiac activity and the resuscitation efforts were ceased. Zachary was pronounced dead at 2:43 p.m.
Shawnee County Deputy Coroner Dr. Altaf Hossain performed an autopsy and determined that Zachary had died of “respiratory failure secondary to positional asphyxia.” Dr. Hossain explained that Moreover, Dr. Hossain determined the manner of death to be accidental.
Bolze–Sann was charged with one count of involuntary manslaughter and one count of aggravated endangering a child. The district court held a 5–day jury trial during which 11 witnesses testified for the State, including Zachary's parents and Dr. Hossain. Bolze–Sann called three witnesses to testified on her behalf. The defense witnesses included Michelle M. Good, who also sent her children to Bolze–Sann's house for daycare. After deliberating for approximately 4 hours, the jury returned a verdict of guilty on both charges.
On January 9, 2009, Bolze–Sann was sentenced to 32 months' imprisonment. At that time, restitution was left open for 30 days. Bolze–Sann filed a notice of appeal on January 22, 2009. Although 10 days had not passed since the sentencing, she also filed a motion to file notice of appeal out-of-time. On January 26, 2009, the State filed a motion for hearing on restitution, and on February 25, 2009, Bolze–Sann filed another notice of appeal.
On August 18, 2009, the State filed a motion to withdraw its request for a hearing on restitution, stating that the parties agreed—at the request of Zachary's family—that there would be no restitution sought from Bolze–Sann. On September 10, 2009, the district court sustained the motion.
Bolze–Sann contends that her convictions should be reversed because there was insufficient evidence presented at trial to support them. Specifically, Bolze–Sann argues that the State failed to prove she acted recklessly, which was an element of both involuntary manslaughter and aggravated endangering of a child. When a defendant challenges the sufficiency of the evidence to support a criminal conviction, we must review all of the evidence, viewed in the light most favorable to the prosecution, to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. See State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
In determining whether there is sufficient evidence to support a conviction, we do not reweigh the evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). It is only in rare cases where the testimony is so incredible that no reasonable factfinder could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. See State v. Matlock, 233 Kan. 1, 5–6, 660 P.2d 945 (1983). There is no requirement that a criminal defendant challenge the sufficiency of the evidence before the trial court to preserve the issue for appeal. State v. Farmer, 285 Kan. 541, 545, 175 P.3d 221 (2008).
Both charges against Bolze–Sann required that the jury find she acted recklessly. For the involuntary manslaughter charge, the jury was instructed that it must find that Bolze–Sann killed Zachary (a) recklessly or (b) while in the commission of aggravated endangering of a child. See K.S.A. 21–3404. And for aggravated endangering of a child, the jury was required to find that Bolze–Sann recklessly caused Zachary to be placed in a situation where his life, body, or health was injured or endangered. See K.S.A. 21–3608a.
The jury was further instructed that “[r]eckless conduct means conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger.” See K.S.A. 21–3201(c). Recklessness requires a higher showing of mental culpability than negligence. See State v. Remmers, 278 Kan. 598, 601–02, 102 P.3d 433 (2004).
Specifically, Bolze–Sann argues that there was no evidence that she had a realization of imminent danger to Zachary. But the record is replete with evidence that Bolze–Sann knew she should not place such a young child on a bed for a nap. In fact, Zachary's father testified that he had discussions with Bolze–Sann regarding Zachary's mobility and had told her several times not to put Zachary on a bed.
There was evidence presented at trial that Bolze–Sann knew that Zachary had become increasingly mobile. There was also evidence presented that Zachary had been able to roll over since he was 3 months old and that he had been able to “scooch” across the floor for a month prior to his death. Moreover, there was evidence presented that Zachary crawled for the first time the day before he died and that he was able to sit up.
Zachary's mother also testified that she had specifically told Bolze–Sann not to put Zachary on a bed because of his increased mobility. According to Zachary's mother, Bolze–Sann assured her that she was not laying Zachary on a bed for naps. Furthermore, Zachary's parents testified that they were never told that Bolze–Sann had a broken crib or playpen.
In addition, a reasonable jury could infer that Bolze–Sann placed Zachary in a ring of blankets and pillows when she placed him on the bed because she realized the potential for danger. The fact that she may have previously placed infants on a bed to nap multiple times “without incident” does not negate her recklessness or excuse her actions on this occasion. See State v. Knight, No. 105,092, 2012 WL 2325849, at *5 (Kan.App.2012) (unpublished opinion) ().
Likewise, there was evidence that Bolze–Sann knew about K.A.R. 28–4–116(b)(2)(A), which required that children under the age of 18 months be placed in a crib or playpen for naps. Specifically, a child care licensing surveyor for the Shawnee County Health Agency testified at trial that Bolze–Sann was given a copy of the regulations pertaining to licensed child care facilities, including K.A.R. 28–4–116. The surveyor testified that at the time of the health agency's last survey of the daycare—which was conducted on February 20, 2007—Bolze–Sann had two playpens. Furthermore, the surveyor testified that when asked whether sh...
To continue reading
Request your trial