State v. Schaffer ( 1998 )

Christley, Judge.

I respectfully dissent from the opinion of the majority.

Without meaning to condone the behavior of the mother in this instance, it is my considered opinion that her acts constituted negligence and nothing more. If the facts in the record before us amounted to child endangering, then all parents, including myself, have been guilty of this criminal offense at one time or another.

Essentially, the state’s evidence in this matter demonstrated that appellant thought the two-year-old child was upstairs in the house, either playing with or under the supervision of a six-year-old child. I fail to see the reckless conduct or the perverse disregard for the safety of the two-year-old boy simply because he was apparently able to slip away. There was no evidence indicating that appellant knew of this tendency or that appellant failed to take ordinary precautions in order to prevent the child’s escape from happening. In fact, the evidence showed that the house was surrounded by a gated, fenced yard.

I would also like to emphasize that the police officer did the right thing in rescuing the child and in scolding appellant and her family for their inattention. The media is full of tragedies which occur because of a moment’s thoughtlessness or inattention by a parent. However, not all such incidents constitute a crime.

In this case, there is absolutely no evidence which demonstrated more than a negligent state of mind on the part of appellant. It may well be that there are facts in this case which are not present in the record, but the conviction had to be based upon evidence which was actually introduced at trial.

For this reason, I respectfully dissent, and I would reverse and enter judgment in favor of appellant.