Argued: January 11, 2016
Court for Montgomery County, Maryland Criminal Case No.
Barbera, C.J., [*] Battaglia, Greene, Adkins,
McDonald, Watts, Hotten, JJ.
case concerns Maryland's criminal child neglect statute,
Section 3-602.1 of the Criminal Law Article, Maryland Code
(2012 Repl. Vol.), which defines "neglect" as
"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." The statute carries a penalty of
"imprisonment not exceeding 5 years or a fine not
exceeding $5, 000 or both." Maryland Code (2012 Repl.
Vol.), Section 3-602.1(c) of the Criminal Law Article.
Annetta Hall, the Petitioner, had been convicted by a jury in
the Circuit Court for Montgomery County of neglect of her
minor son and was sentenced to twenty days'
incarceration. Ms. Hall appealed the judgment of the Circuit
Court to the Court of Special Appeals, arguing that the
definition of "neglect" contained in Section
3-602.1(a)(5)(i) of the Criminal Law Article was
unconstitutionally vague and that the evidence was
insufficient to support her conviction. The Court of Special
Appeals affirmed the judgment of the Circuit Court, and we
granted certiorari to address the following questions:
1. As an issue of first impression, is Md. Code Ann., Crim.
Law § 3-602.1, the criminal neglect of a minor statute,
unconstitutional because it is vague?
2. Was the evidence sufficient to support conviction for
neglect of a minor?
Hall v. State, 444 Md. 638, 120 A.3d 766 (2015). For
the reasons that follow, we assume, without having to decide,
that the criminal neglect of a minor statute is
constitutional but reverse the judgment of the Court of
Special of Appeals, because we hold that the evidence was
insufficient to support Hall's conviction for criminal
in 2013, Beverly Hall was charged by criminal information in
the Circuit Court for Montgomery County with one count of
neglect of her minor son A.,  in violation of Section 3-602.1
of the Criminal Law Article,  ostensibly for having, over a two
day period, beginning on February 24 and ending on February
26, 2012, left A. under the supervision of his
fourteen-year-old sister, D. Ms. Hall filed a motion to
dismiss the charge, arguing, among other things, that Section
3-602.1 was unconstitutionally vague, because the statute
"fail[ed] to inform the ordinary person what conduct is
prohibited by its enactment[, ]" and "fail[ed] to
delineate at which point personal parenting choices escalate
to neglect, [leading] to arbitrary and discriminatory
enforcement." The motion was denied orally by the
circuit court judge who remonstrated that Section 3-602.1 of
the Criminal Law Article contained an "awful broad
definition of neglect, " but determined that it was not
I understand the argument, and I understand what the defense
is saying here and I guess the bottom line is you may win
this argument upstairs. I don't know, but I'm not
going to - I just don't find it to be void for
vagueness… I'm not going to find that the statute
is void for vagueness. You know, that's something the
Court of Special Appeals is going to have to do.
evidence subsequently adduced at trial, taken in the light
most favorable to the State,  reflected that in the Fall of
2011, Ms. Hall, her fiancé, and three children-two
daughters, thirteen-year-old D. and ten-year-old M., and a
son, three-year-old A.-were living in a single family home on
Lima Drive in Silver Spring, Maryland. Nyree Wannall, a
licensed clinical social worker with Montgomery County Child
Welfare, had been providing services to Ms. Hall's family
since May of 2011. Ms. Wannall would perform home visits with
Ms. Hall and her family two times monthly, except during the
children's summer vacation when all three visited their
maternal grandmother in Florida.
on Ms. Wannall's observations during her home visits,
three-year-old A. "ran rampant[, ]" "was very,
very difficult to control[, ]" and was "very
active." Ms. Wannall described A.'s behavior as:
"[y]ou would be there during a home visit, and he would
pick up something, and it wouldn't be surprising if he
picked something up and threw it at his sister, or threw it
at the TV, and just was always moving." During one of
Ms. Wannall's home visits in September of 2011, A. threw
a bottle at his sister's face, threw a bottle at the
T.V., and bit Ms. Wannall's foot. He then opened the
closed front door of the residence, ran outside, and entered
the truck of a postal worker who was in the neighborhood, all
during the time his mother was present. D., A.'s sister,
retrieved A. from the mail truck, and Ms. Hall did not
attempt to control or discipline A. during this episode.
Ms. Wannall's home visits, she would meet with Ms. Hall
and the children and would discuss "issues that may have
come up with the individuals in the house[.]" A
recurring issue raised during Ms. Wannall's discussions
with Hall was that "[D.] needed to spend her time on her
studies in school, needed to be a child and not have as many
responsibilities in the home[, ]" and "[D.] having
too many responsibilities with [A.]" By February 15,
2012, Ms. Hall had agreed with Ms. Wannall that "[A.]
was too difficult for [D.] to watch[, ]" and that she
"would only allow [D.] to watch [M.], her younger
the afternoon of Wednesday, February 22, 2012, D. (now
fourteen years of age) and M. had finished the school day and
went to A.'s babysitter to pick him up. After bringing A.
home, D. was upstairs doing her homework, but came downstairs
to find that the front door was open and A. was missing; Ms.
Hall was not present at 4:30pm that day, Officer Jim Walsh,
responding to a call at a different location, found A.
without supervision, wearing only a t-shirt and a diaper,
whereupon the Officer went looking for A.'s parents. D.
and M. approached Officer Walsh and stated that they
"didn't know [A.] got out." Officer Walsh then
brought A. back to the house on Lima Drive and retrieved
Hall's phone number from D. and attempted to call Ms.
Hall "at least five" times. He was unable to
contact her, and did not recall whether he had left any
voicemail messages but left A. under the supervision of D.
Ms. Wannall learned of this incident the following day, on
February 23, 2012, but did not contact Ms. Hall, as she did
not want to interfere with any investigation that might be
triggered by Officer Walsh reporting the incident to Child
to D., A.'s escape from the home on February 22nd was the
third time that she had gone to the playground to retrieve
him while he was under her supervision. On a previous
occasion, although police had been notified, D. was able to
retrieve A. before the police arrived at the playground. The
police did follow-up, and came to the house on Lima Drive and
instructed D. to have Ms. Hall contact them. D., however, did
not inform Ms. Hall of any of these occasions on which A. had
escaped to the playground.
Friday, the 24th of February, Ms. Hall and her fiancé
attempted to bring the children to their godmother's home
in Prince George's County, where the children would spend
the weekend. Ms. Hall, however, was unable to locate the
godmother and returned home.
home, the children unpacked their belongings, placed some
food in the refrigerator, and got ready for bed by taking
baths and changing into their "night clothes." Ms.
Hall did not tell the children where she was going or how
long she would be gone, but left an emergency cell phone with
D. and told her to call if she needed anything. Ms. Hall also
told D. that she would call her "when she [got] to her
destination, because she [had] to charge her phone." Ms.
Hall and her fiancé then left at around 10:00 or 11:00
p.m., and D. locked the door behind them.
Ms. Hall's departure, the children began watching a movie
in the living room. While watching the movie, A., M., and
ultimately D., fell asleep. D. then awoke between midnight
and 1:00 a.m. to find that A. was no longer on the couch. D.
searched the house for A. to no avail and noticed that the
front door to the residence was open. D. attempted to call
Hall three to four times, but each of the calls went straight
to voicemail. D. also called the fiancé, whose phone
number was programed in the emergency phone, but no one
answered. D. thought she heard someone pick up on one of them
but the person on the other line hung up shortly thereafter.
failing to reach her mother, D. called the police and
searched the neighborhood, while M. stayed at the house.
After D. returned without having found A., she made several
additional calls to the police. Two police officers,
including Officer Rodney Campbell, arrived around 2:30 am and
informed D. that they had found A.
after 2:00 a.m., Officer Campbell had responded to a call at
the intersection of New Hampshire Avenue and Hollywood Avenue
(located some 300 to 400 yards from Ms. Hall's home) and
encountered a gentleman pulled over on the side of the road.
The man explained to Officer Campbell that he had a baby in
his car and that he had almost struck the child, who had been
in the middle of the six lane roadway. The child was dressed
only in sweatpants and a t-shirt. Officer Campbell, after
determining the child's name was A., contacted other
officers and gave out A.'s name and asked whether any of
the officers "had dealt with the child before."
Officer Walsh, who had come across A. earlier that week,
arrived at the intersection and led Officer Campbell to
the officers arrived at A.'s home, they attempted to call
both Ms. Hall and her fiancé, but were unable to reach
either of them. The officers then took the children,
including A., to the police station where the officers again
were unsuccessful in contacting Ms. Hall. As a result, the
officers contacted Child Protective Services
("CPS") and Laura Erstling, the on-call social
worker with the Montgomery County Department of Health and
Human Services, Child Welfare Service Program, arrived at the
police station around 3:30 a.m. Ms. Erstling instructed the
officers to leave a note on the door of the home telling Ms.
Hall how to reach her and how to get in touch with the
children. Ms. Erstling attempted around 4:00 a.m. to contact
Ms. Hall, but was not successful and left a voicemail
detailing who she was and how Ms. Hall could reconnect with
had no success contacting Hall, Ms. Erstling drove the
children to an emergency foster home at 7:30 a.m. Ms. Hall
called Montgomery County Child Protective Services at 10:20
am on the morning of February 25, 2012 "to inquire about
the whereabouts of her children."
Hall then was charged with one count of criminal child
neglect in the Circuit Court for Montgomery County. After an
initial trial in which the jury had failed to reach a
unanimous verdict, the State retried Ms. Hall. A second jury
did convict Ms. Hall, after which the Judge imposed a
sentence of 20 days' incarceration. Ms. Hall then noted
an appeal to the Court of Special Appeals.
appeal, Ms. Hall contended that Section 3-602.1 of the
Criminal Law Article was void for vagueness and that the
evidence was insufficient to support her conviction. The
Court of Special Appeals, in an unreported opinion,
Beverly Annetta Hall v. State of Maryland, September
Term, 2013, No. 2473 (April 21, 2015), affirmed.
court determined that the statute was "not vague as
applied to the facts of the instant case" because
"[Hall] was fully aware that D[.] was not a proper
caregiver for A[.]":
A reasonably intelligent person would not have to speculate
whether leaving a three year-old alone with an improper
caregiver for any length of time, much less overnight, and
without an effective way to be contacted in case of an
emergency, would constitute neglect as defined in the
statute. The statute is not vague as applied to the facts of
the instant case.
Id. at 9. The Court of Special Appeals also rejected
Hall's argument that she was inadequately notified of
conduct that could violate the statute:
The risk of harm to such a young child, especially one who is
"very, very difficult to control, " is not limited
to the harm that might come from the child exiting the house
and wandering outside unsupervised. There are any number of
injuries that could foreseeably result from knowingly leaving
an improperly supervised and rambunctious three year-old
inside the home as well. [Hall] saw the child throw a
dangerous object at people in the home and bite Ms. Wannall
on the foot. [A.] also ran out of the house on the day Ms.
Wannall was meeting with [Hall] for a home visit. Certainly
[Hall] knew or should have known that [A.] could and did
leave the house on his own.
Id. at 10-11.
sufficiency of the evidence, the intermediate appellate court
observed that an appellate court must "'view the
evidence, and all inferences fairly deducible from the
evidence, in a light most favorable to the State.'"
Id. at 18-19, quoting Twine v.
State, 395 Md. 539, 554, 910 A.2d 1132, 1141 (2006).
The Court then remonstrated that Ms. Hall was present on at
least one occasion where A. ran out of the house, and Ms.
Hall had agreed that D. should not be responsible for
A.'s supervision. Furthermore, "despite this
agreement, [Hall] intentionally left [D.] in charge of [A.]
for an unspecified amount of time, including overnight hours,
and did not answer calls in the middle of the night from
[D.], nor did [Hall] answer calls or return messages from the
police and CPS." Id. at 19. In light of the
above, the court opined that, "there was sufficient
evidence before the jury for it to find beyond a reasonable
doubt that [Hall] neglected [A.] by intentionally leaving him
in the care of [D.] in excess of twelve hours, without any
effective means to reach her in case of an emergency."
Id. at 20.
Hall, before us, initially raises the issue that the
"neglect of a minor statute is unconstitutionally vague
on its face and as applied to the particular facts of this
case[.]" Because we shall hold that there was not
sufficient evidence to sustain Ms. Hall's conviction
under Section 3-602.1 of the Criminal Law Article, the
criminal child neglect statute, we need not reach the
criminal neglect statute, Section 3-602.1 of the Criminal Law
Article, provides, in relevant part, that
"'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."
Maryland Code (2012 Repl. Vol.), Section 3-602.1(a)(1)(5)(i)
of the Criminal Law Article. The intentional failure relates
to that of "[a] parent, family member, household member,
or other person who has permanent or temporary care or
custody or responsibility for the supervision of a
the Court of Special Appeals correctly characterized intent
only with reference to whether Ms. Hall failed to provide
necessary assistance and resources for the physical health of
A., throughout its opinion the court speculated as to the
harm that could have befallen A. because of his having been
left by Ms. Hall in the care of his fourteen-year-old sister.
It is not conjecture about potential harm, however, that
governs, but rather whether the conduct at issue, evaluated
objectively, created a substantial risk of harm.
failure to provide necessary assistance and resources for the
physical needs . . . of a minor that creates a
substantial risk of harm . . ." is the pivotal statutory
phrase. "[C]reates a substantial risk" in Section
3-602.1(a)(5)(i) is the same language used in our reckless
endangerment statute, Section 3-204 of the Criminal Law
Article, Maryland Code (2012 Repl. Vol.), which states, in
(a) A person may not recklessly:
(1) engage in conduct that creates a substantial
risk of death or serious physical injury to another.
similarity between Section 3-602.1, the criminal child
neglect statute, and the reckless endangerment statute,
Section 3-204, was noted in testimony in 2011 against the
passage of Senate Bill 178, the origin of Section 3-602.1,
provided by Melissa S. Rock of Advocates for Children and
Youth,  who suggested that the proposed child
neglect statute was unnecessary because, "[w]e also have
a reckless endangerment statute through which a person can be
prosecuted for placing another individual at a substantial
risk of death or serious physical injury." The Office of
the Public Defender provided similar testimony in opposition
to S.B. 178, arguing that the bill "[was] largely
duplicative of existing law" by referencing, among other
statutes, Section 3-204 of the Criminal Law Article, the
reckless endangerment statute, which states that the crime of
reckless endangerment is a person acting
"recklessly" by "engag[ing] in conduct that
creates a substantial risk of death or serious physical
injury to another."
forth the elements of a prima facie case of reckless
endangerment in Jones v. State, 357 Md.
408, 427, 745 A.2d 396, 406 (2000), as:
1) that the defendant engaged in conduct that created a
substantial risk of death or serious physical injury to
another; 2) that a reasonable person would not have engaged
in that conduct; and 3) that the defendant acted recklessly.
Maryland Criminal Pattern Jury Instruction on reckless
endangerment, Section 4:26A, embodies those same
elements. In Williams v. State, 100 Md.App.
468, 481, 641 A.2d 990, 996 (1994), the Court of Special
Appeals recognized that the purpose of the reckless
endangerment statute is to punish conduct that was
potentially harmful, even when no actual harm had occurred.
("At the actus reus level, [reckless
endangerment] is one element short of consummated harm. At
the mens rea level, it is one element short of
consummated harm. At the mens rea level, it is one
element short of the specific intent necessary for either an
attempt or for one of the aggravated assaults.").
issue oftentimes plumbed with respect to the actus
reus of creating a substantial risk of harm has been
whether to measure a defendant's conduct by a subjective
standard or an objective one in order to determine its
criminality. Judge Charles Moylan, writing for the Court of
Special Appeals in Williams, 100 Md.App. at 495, 641
A.2d at 1003, discussed the subjective-objective dichotomy:
. . . It is undisputed that the actus reus of
creating a substantial risk is to be measured objectively,
not subjectively. The mens rea of the defendant,
although indispensable to an ultimate finding of guilt, has
nothing to do with the establishment of the actus
reus. Whether the conduct in issue has, indeed, created
a substantial risk of death or serious physical injury is an
issue that will be assessed objectively on the basis of the
physical evidence in the case.
Moylan's words have been relied upon in other Court of
Special Appeals opinions considering reckless endangerment.
See also Marlin v. State, 192 Md.App. 134, 168, 993
A.2d 1141, 1161 (2010); Albrecht v. State, 105
Md.App. 45, 85, 658 A.2d 1122, 1141 (1995); Wieland v.
State, 101 Md.App. 1, 28, 643 A.2d 446, 459 (1994).
respect to the evaluation of a defendant's conduct and
the creation of risk, the assessment must be made
objectively. The reasonable person standard oftentimes is
utilized to measure deviation from the norm, upon which
criminal liability is based. Eanes v. State, 318 Md.
436, 462, 569 A.2d 604, 616 (1990) ("The objective
'reasonable' test is used in many areas of the law as
an appropriate determinant of liability and thus a guide to
conduct."). Essentially, then, the reasonable person
standard in criminal law differentiates between carelessness
or negligence and criminal misconduct. See State v.
Albrecht, 336 Md. 475, 499, 649 A.2d 336, 348 (1994)
(citing C.J. Murphy in Mills v. State, 13 Md.App.
196, 200, 282 A.2d 147, 149 (1971), cert. denied,
264 Md. 750 (1972): ". . . On the other hand whether an
accused's conduct constituted gross negligence must be
determined by the conduct itself and not by the resultant
harm. Nor can criminal liability be predicated on every
careless act merely because its carelessness results in
injury to another.").
the objective standard to evaluate the actus reus or
conduct of a parent in order to determine a violation of the
criminal child neglect statute avoids conjecture with regard
to the creation of a substantial risk of harm to the child.
The standard to be utilized, then, is whether the parent
intentionally failed to provide necessary assistance and
resources for the physical needs of the child by acting in a
manner that created a substantial risk of harm to the child,
measured by that which a reasonable person would have done in
importance of relying on an objective standard to evaluate
parental inaction or neglect lies in the avoidance of
"20/20 hindsight" by a jury that can engage in risk
distortion. As one commenter on the subject has noted,
juries, when faced with evidence of what may have or could
have occurred, distort the risk of parental inaction so that
all risk becomes substantial. See David Pimentel,
Criminal Child Neglect and the "Free Range
Kid": Is Overprotective Parenting the New Standard of
Care?, 2012 Utah L. Rev. 947, 988. Professor Pimentel,
writing about overprotective parenting, notes that parents,
historically, have had little concern for the potential
criminality of their parenting decisions, as "the
prevailing concern behind parenting choices has been what is
best for the child and for the family." Id. at
967. The shift toward closer scrutiny of parenting
choices-the result of both societal and legislative emphases
on child protection-has been accompanied by the media
sensationalizing the risk to children, according to Professor
Pimentel, such that parenting decisions, which necessarily
involve parental management of risk to their children, face
second-guessing by jurors tasked with determining whether the
conduct was, in fact, criminal. Id. at 970-72. Such
second-guessing raises the potential that any risk of harm
that could be envisioned, aided by 20/20 hindsight, would
satisfy criminal culpability in the mind of a jury, according
to Professor Pimentel:
If the risk of harm is literally one in a million-in the
category of "freak accident"-it would be patently
unreasonable to expect any significant investment in
precaution against that harm. And yet, every time that freak
accident occurs, the parent may face liability for
endangerment, as jurors are likely to take the fact of the
harm itself as conclusive evidence of its likelihood[.]
* * *
Psychologists who study fear have determined a number of
reasons that people misperceive risks. Indeed, they note that
"perceived risks rarely match the actual risks."
Id. at 981-83.
discussing the psychology of a juror's assessment of risk
and factors that contributed to the distortion between actual
and perceived risks,  Professor Pimentel concludes that,
"As already demonstrated, however, juries are
ill-equipped to assess risk, much less to determine when a
parent's poor judgment is sufficiently bad to warrant
criminal punishment." Id. at 987.
Supreme Court of Kansas, in a child endangerment case, also
recognized the potential for bias and distortion in State
v. Cummings, 305 P.3d 556, 565 (Kan. 2013). In that
case, Cummings had provided daycare services for several
children in her home and placed one of the children, a
thirteen-month old, in a car seat in a bathroom, fastening
the child in with the top strap of the car seat but not the
bottom strap. Id. at 558. After hearing the child
cry for a few minutes and then stop, Cummings ...