State of Minnesota, Respondent, vs. Nancy Christine Swedberg, Appellant.

>State of Minnesota, Respondent, vs. Nancy Christine Swedberg, Appellant. A06-1395, Court of Appeals Unpublished, September 11, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1395

 

State of Minnesota,
Respondent,

 

vs.

 

Nancy Christine Swedberg,
Appellant.

 

 

Filed on September 11, 2007

Affirmed
Dietzen, Judge

 

Nicollet County District Court

File No. 52-CR-05-240

 

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Michael K. Riley, Sr., Nicollet County Attorney, Kenneth R. White, Assistant County Attorney, 326 South Minnesota Avenue, P.O. Box 360, St. Peter, MN 55082 (for respondent)
 
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge; Randall, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

DIETZEN, Judge

            Appellant challenges her conviction of neglect or endangerment of a child in violation of Minn. Stat. § 609.378, subd. 1(b)(1), arguing that the district court erred in its interpretation of the statute and that the evidence is not sufficient to support the conviction.  Because the district court properly applied the law and did not abuse its discretion, we affirm.

FACTS

            In September 2005, appellant Nancy Swedberg agreed to baby-sit her two-year-old granddaughter R.A.W. at her home in Mankato, so that her son and his wife could travel to Wisconsin to attend a wedding.  Appellant's son and his wife arrived with R.A.W. on Thursday evening and left the next morning, intending to leave R.A.W. with appellant through the weekend.  Before leaving, appellant's son installed R.A.W.'s car seat in appellant's car and adjusted the straps so that R.A.W. fit comfortably in the car seat with the seat belt in place.  Both parents were aware that appellant was an alcoholic and reminded her that she could not drink while she had R.A.W. in her care.  Appellant's son checked the house for alcohol before they left.

            The next day appellant consumed several drinks of vodka and lemonade.  About five p.m., she called a long-time friend and stated that she was "really, really drunk."  Shortly after that conversation, appellant went to her neighbor's house to locate R.A.W.  Appellant stated that R.A.W. was lost but was unclear as to how it had happened.  When the neighbors stated that they had not seen R.A.W., appellant and one of the neighbors then went to her sister's house.  Individuals present described appellant as having vomit on her shirt and speaking incoherently.  Several individuals then returned with appellant to her house.  They found more vomit in the kitchen together with a partially consumed bottle of vodka and a pitcher of lemonade. 

After searching for about an hour, R.A.W. was found in the car seat in appellant's vehicle.  When found, R.A.W. was crying and gasping for air and had twisted in the car seat so her back was facing "out" and her front was toward the back of the seat.  As a result, it was difficult to remove her from the seat.  She was wearing only a shirt, a windbreaker, and a diaper.  Her diaper was full and she had kicked off her boots.  Her face was pink and red and her hair was sweaty.  The keys to the vehicle were found on the boulevard near the unlocked car. 

            Because none of the child's immediate family were able to take custody, R.A.W. was placed in emergency protective custody in a foster home that night.  When the parents returned the next day, R.A.W. stated "Daddy, I hanging in car seat crying ‘Grandma Nan,' Grandma Nan went to get a cookie.  I not go Grandma Nan's anymore." 

Following trial, the district court concluded that the "emotional harm suffered by R.A.W. resulted directly from the [appellant's] reckless consumption of alcohol," and that appellant's reckless actions also placed R.A.W. in a situation likely to cause her substantial physical harm.  Appellant was "so inebriated that she was incapable of conducting a thorough or effective search on her own, so there is little chance that the appellant would have found R.A.W. without the aid of her neighbors."  The district court found appellant guilty of reckless endangerment in violation of Minn. Stat. § 609.378, subd. 1(b)(1).  This appeal follows.

D E C I S I O N

Initially, appellant argues that the district court incorrectly interpreted the meaning of the word "likely" in Minn. Stat. § 609.378 (Supp. 2005) to mean what could have happened instead of what was likely to happen.  Whether a statute has been properly construed is a question of law to be reviewed de novo.  State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996). 

Under Minnesota law, a parent, guardian, or caretaker may be found guilty of reckless endangerment for "intentionally or recklessly causing or permitting a child to be placed in a situation likely to substantially harm the child's physical, mental, or emotional health or cause the child's death."  Minn. Stat. § 609.378, subd. 1(b)(1).  As used in the statute, "likely" means that the actions were "more likely than not" to result in substantial harm to the children.  State v. Tice, 686 N.W.2d 351, 355 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004).  But actual harm need not occur.  State v. Hatfield, 627 N.W.2d 715, 720 (Minn. App. 2001), aff'd, 639 N.W.2d 372 (Minn. 2002) (addressing only conspiracy conviction); see also State v. Perry, 725 N.W.2d 761 (Minn. App. 2007) (addressing Minn. Stat. § 609.378, subd. 1(b)(2)), review denied (Minn. Mar. 20, 2007)).

Here, the district court referenced the statute in its findings of fact and order.  More importantly, we see nothing in the record to indicate that the district court misinterpreted the statute.  The crux of appellant's argument is that the evidence is not sufficient to support the conviction of reckless endangerment. 

In considering a claim of insufficient evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  This court assumes the jury believed the state's witnesses and disbelieved contrary evidence.  State v. Asfeld, 662 N.W.2d 534, 544 (Minn. 2003).  The court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).  The same standard applies to cases heard before the court without a jury.  State v. Mytych, 292 Minn. 248, 251-252, 194 N.W.2d 276, 279 (1972).

The district court concluded that "any two year old would necessarily suffer significant emotional harm when she was left in a car seat for more than an hour and then forced to spend the night in a stranger's house" and that R.A.W. "did in fact suffer significant emotional harm as a result of being abandoned in a car seat without food or water for at least an hour." 

Here, the record shows that while caring for a two-year-old child, appellant became so inebriated that she forgot the child's location.  As a result, R.A.W. was abandoned in a closed car and unable to free herself, despite her attempts to twist out of her car seat.  When found, she was crying and gasping, clearly distraught and in both physical and emotional discomfort.  Further, it is likely that if R.A.W. continued to struggle in the car seat, the straps would have cut or injured her bare legs or, even more seriously, become tangled around R.A.W.'s neck.  The district court's conclusion that appellant's actions were likely to lead to substantial physical and emotional harm is supported by sufficient evidence. 

Appellant nonetheless argues that R.A.W. was only in the car for an hour and, therefore, it was unlikely that she would suffer harm.  Further, appellant suggests that it was not likely that the child would have remained undiscovered.  We disagree.  The relevant statutory inquiry is whether the conduct in question created a likelihood of substantial harm. 

            The district court found, "[t]he fact that [appellant's] neighbors were able to find R.A.W. does not diminish the precariousness of R.A.W.'s situation."  Here, the child, who was not capable of caring for herself, was abandoned in a diaper, t-shirt, and windbreaker.  She was without food or water for at least an hour in a car that was closed up.  We conclude that leaving a two-year-old child not capable of caring for herself
unattended for at least one hour in these circumstances meets the statutory requirement of reckless endangerment.

            Affirmed.      

 

_______________­­________________

Christopher J. Dietzen, Judge