Was Hennings guilty of ethnic intimidation?

Issue

Mark Hennings was convicted under Iowa’s hate-crime statute after he ran over a twelve-year-old African-American boy. Was the evidence sufficient to support the jury verdict that Hennings acted “because of” the victim’s race or color?

Facts

On the morning of Saturday, June 2, 2007, twelve-year-old A.M., thirteen-year-old J.M., eleven-year-old D.G., and thirteen- or fourteen-year-olds D.M.G. and K.W., met up at the Frontier Days parade in Fort Dodge. All five boys are African-American. After the parade, the boys planned to go swimming. The boys were walking in the street when they heard a vehicle approaching and moved to the sidewalk. Hennings, who is white, drove past the boys in a navy blue Ford Ranger pickup and shouted at the boys to “get the fuck off the road.” K.W. yelled back at Hennings, “[W]e don’t have to get the fuck off the street.”

Hennings stopped his truck and got out of the truck carrying a pocket knife with a blue handle and a serrated blade between three and four inches long. J.M. testified Hennings threatened the boys with the knife. The boys ran away toward a parking lot, but K.W. stopped running and stood his ground. K.W. testified he told Hennings “if you drop the knife,” “we’ll beat [your] ass.” When the other boys realized K.W. had stayed behind, they ran back toward him. When they got back to K.W., Hennings walked back to his truck. Hennings called the boys “fucking n___s” as he got into his truck.

Hennings sped off and the boys continued walking. A.M. realized he had dropped his swim trunks by the parking lot and went to retrieve them. Meanwhile, Hennings circled back around toward the boys. As the boys were crossing a street, they saw Hennings run a stop sign and begin heading towards them in his truck. Hennings drove his truck in the center of the street and aimed for the boys. The boys ran and some climbed onto a brick retaining wall for protection.

When the four boys reached safety, Hennings changed direction and began aiming for A.M., who lagged behind the others. A.M. ran side-to-side hoping to evade Hennings, but Hennings swerved his truck to follow A.M. A.M. was soon hit, and the truck’s passenger-side tires drove over him. Hennings then left the scene.

Two bystanders observed the incident and testified at trial. Beth Cox testified that from her desk at work she saw Hennings stop, threaten the boys, drive away, and then circle back around. She started to call 911, but then decided to check on the boys and saw A.M. injured in the street. The second bystander, State Senator Daryl Beall, called 911 and exclaimed, “There is a young man that was hit, a car was chasing him and ran over him.”

A.M. was transported to the hospital and treated for abrasions to his face, head, shoulders, elbow, and thighs. He also had a potentially fatal laceration to his liver with internal bleeding, but the injury healed without treatment. A.M. stayed in the hospital for observation and suffered permanent scarring and discoloration across his body, including on his face.

The next day, police officers Brad Wilkins and Dan Charlson obtained a search warrant. Wilkins and Charlson went to Hennings’ home to execute the warrant, where they spoke with Hennings and his parents. Wilkins recorded the encounter on a digital recorder, part of which was played for the jury. Hennings’ comments included the following: “I came around the corner … there’s a big group of monkeys standing in the fuckin road … grabbing every which way … I didn’t think I hit any of ‘em … I think I hit a pothole in the road … I think I missed all of ‘em. I came around the corner … they were all standing out in the road and this … I beeped my horn and they just fled … completely across the road. Some went that way … some went that way … I started hitting the brake and trying to … go for openings but they just … keep going like this … like a normal fuckin monkey. What … don’t have enough sense to stay out the fuckin road … they deserve to get hit.”

Wilkins then stated, “I figure you don’t like black people?” And Hennings’ mother asked, “Why didn’t you wait for ‘em to move.’” Hennings then said, “When they’re standing in fuckin road like stupid monkeys?”

Hennings’ parents suggested the complaint against Hennings was manufactured because the family was well known in Fort Dodge and not well liked because of their opinions towards race. Wilkins responded there were witnesses to the incident that were both black and white and were not related to each other.

When asked, Hennings denied having a knife and physically tried to prevent the officers from searching and seizing his truck. Eventually, the officers executed the search warrant. They found a silver-handled knife in the glove compartment of the truck and a blue-handled knife with a serrated blade in Hennings’ bedroom dresser. The officers left Hennings’ property, taking the truck with them. During the encounter, Hennings did not ask about A.M.’s condition or show remorse for his actions.

A criminalist for the Iowa Division of Criminal Investigation analyzed the truck and A.M.’s clothing. He found debris had been wiped out from the truck’s underbody, marks on A.M.’s shirt, and damage to the truck’s grille that were consistent with the truck running over A.M.

The State charged Hennings with count I, attempted murder in violation of Iowa Code section 707.11 (2005); count II, willful injury in violation of section 708.4(1); and count III, assault in violation of individual rights with the intent to inflict a serious injury in violation of sections 708.2C(1), 708.2C(2), and 729A.2(1).

A jury convicted Hennings of counts I and II: assault with intent to inflict serious injury and willful injury causing bodily injury (count 11 was ruled to merge into count 1).  Hennings was sentenced to an indeterminate term of imprisonment not to exceed five years for both counts II and III. The district court ordered the sentences to run consecutively.

Hennings appealed his conviction under count III, arguing the conviction is not supported by substantial evidence because the evidence would not allow a rational jury to conclude beyond a reasonable doubt that Hennings acted “because of” A.M.’s race.

Reasoning

Hennings argues there was insufficient evidence to support the jury’s conviction under count III. Hennings was convicted of assault in violation of individual rights, with the intent to inflict a serious injury under Iowa Code sections 708.2C(1), 708.2C(2), and 729A.2(1). Iowa Code chapter 729A establishes hate crimes in Iowa. Section 729A.2 defines a hate crime as “one of the following public offenses when committed against a person or a person’s property because of the person’s race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, or disability.” Assault in violation of individual rights under section 708.2C is listed as one of the enumerated public offenses. Under section 708.2C, “‘assault in violation of individual rights’ means an assault, as defined in section 708.1, which is a hate crime as defined in section 729A.2.” Hennings was convicted under section 708.2C(2), which provides: “A person who commits an assault in violation of individual rights, with the intent to inflict a serious injury upon another, is guilty of a class ‘D’ felony.”

Hennings argues he could not be convicted under count III because the State did not present sufficient evidence to establish beyond a reasonable doubt that the assault was committed “because of” the victim’s race or color, as required by section 729A.2. Hennings does not contest that he is racist or that he used racially derogatory terms when discussing the incident with Wilkins. Hennings argues, however, it is “just as likely” his actions were motivated by the boys’ presence in the road and K.W.’s retorts to Hennings. Hennings argues “it is reasonable to think Hennings would have acted in a similar way regardless of the race of the boys blocking the road.”

There are essentially three categories of defendants to whom the state might try to apply hate-crime laws.

The first category involves an individual whose single motivation in an assault is something other than the protected status of the victim, such as jealousy or greed, but the individual also happens to be racist. An individual cannot be convicted under section 729A.2 for such action because it cannot be said that such an individual acted “because of” the victim’s protected status. See In re M.S., 896 P.2d 1365, 1377 (Cal. 1995) (noting, in analyzing California’s hate-crime statute, that “the Legislature has not sought to punish offenses committed by a person who entertains in some degree racial, religious or other bias, but whose bias is not what motivated the offense”).

“The defendant’s motive for committing the offense is one important factor … [b]ut it is equally true that a defendant’s abstract beliefs, however obnoxious to most people, may not be taken into consideration by a sentencing judge”. It is the causal connection between prejudice and a prohibited action that protects hate-crime statutes from constitutional challenge. Criminalizing prejudice only—and therefore thoughts—would violate the First Amendment.

Hennings suggests he is in this first category: someone with socially unacceptable views whose actions were not motivated by those views. Substantial evidence supports the jury’s determination that Hennings is not in this category. Hennings made racially derogatory comments both during his encounter with the boys and during his conversation with the police officers. A jury could have believed Hennings suggested the boys deserved to be run over because of their race. There was substantial evidence supporting the State’s position that Hennings’ bias towards the boys’ race played a causal role in his actions.

The second category is the other extreme: individuals who commit a crime based on the singular motivation of the victim’s protected status. Hennings’ actions do not fall into this category. Crimes that fall into this category do not involve any altercation between the victim and defendant, but are instead often a seemingly random act of violence, such as an individual seeking out a person of a protected status simply because the individual wishes to harm any person of that protected status. There can be no question that actions with such a single discriminatory motivation are properly covered by section 729A.2. See Mitchell, 508 U.S. at 480 (upholding a Wisconsin hate-crime statute against constitutional challenge where defendants decided to “move on some white people” and proceeded to severely beat the first white person they encountered, a boy).

The third and intermediate category is an individual who acts based on dual intents or mixed motives. The aggressor is motivated by both the victim’s protected status and by a separate motivation, for example, by jealousy, greed, or anger. Hennings argues section 729A.2 does not apply to defendants in the third category: defendants with mixed motives. We disagree.

The legislature’s use of the words “because of” in section 729A.2 requires evidence of a causal connection between the defendant’s bias and the alleged actions. Here, there is substantial evidence Hennings would not have run the boys down with his truck, and run over A.M., except for the boys’ race. One boy testified Hennings referred to the boys as “fucking n___s” during the initial encounter. Additionally, when police officers came to Hennings’ home, he referred to the boys and A.M. as “monkeys,” “a normal fuckin monkey,” “fuckin n___,” and “stupid monkeys.” Additionally, Hennings implied the boys deserved to be hit because of their race, stating, “What … fuckin n__ don’t have enough sense to stay out the fuckin road … they deserve to get hit.” When asked whether he disliked black people and why he didn’t wait for the boys to move, Hennings stated, “When they’re standing in fuckin road like stupid monkeys.”

Hennings’ own statements provided sufficient evidence for a rational jury to find beyond a reasonable doubt that Hennings acted “because of” the boys’ race or color. Regardless of whether Hennings was motivated in part because the boys were in the road or because one of the boys talked back to him, the evidence supports the conclusion by a rational jury that Hennings would not have run A.M. down if he had not been African-American. This motivation is especially clear from the statements Hennings made to the police officers the day after the assault.

State v. Pollard, 906 P.2d 976 (Wash. Ct. App. 1995), provides a similar example. In Pollard, the defendant was walking down the street drunk when two African-American boys playing in a yard whispered to each other and started giggling. Pollard entered the yard, pushed one of the boys, called him a “nigger,” and threatened him. When Pollard was arrested, he yelled the boy “should be shot, because he was black, all niggers and Mexicans should be shot.” The court upheld Pollard’s conviction of a hate crime.

Whether or not Pollard assaulted Durham in part because he was blind drunk and insulted by the boys’ ridicule, the evidence is overwhelming that he also assaulted him with the intent to intimidate and harass him because of his race. As the trial court found, Pollard’s reason for assaulting Durham is clear from his statements when he first noticed the boys and approached them.

One could argue that both the boys’ presence in the road and their race were but-for causes: (1) had the boys not been in the road, Hennings would not have run down A.M.; and (2) had the boys not been African-American, Hennings would not have run down A.M. The existence of multiple factual causes does not relieve Hennings of liability under Iowa’s hate-crime statute. Hennings may not have been motivated to run over the boys had they been walking on the sidewalk. However, just because the boys’ presence in the street was a separate factual cause does not mean race was not also a but-for cause. As noted above, there is substantial evidence to support a jury determination that Hennings would not have run A.M. over had he been white and in the street.

Essentially, Hennings objects to the concept of hate crimes. Hennings argues it is “just as likely” he acted for nonbiased reasons and a finding that Hennings acted because of race “requires the use of speculation and conjecture.”

Determination of intent or mens rea is frequently an element of criminal law and our system often relies on juries to make this determination. “Because it is difficult to prove intent by direct evidence, proof of intent usually consists of circumstantial evidence and the inferences that can be drawn from that evidence.” In State v. Adams, 554 N.W.2d 686 (Iowa 1996), the jury was called on to determine the defendant’s motivation for possessing drugs: for personal use or because he planned to deal the drugs to others. We held a trier of fact could reasonably infer the defendant possessed the drugs with the intent to deliver.

Likewise, juries determine whether a killing was “premeditated,” a determination that requires consideration of a defendant’s thoughts. In State v. Taylor, 310 N.W.2d 174 (Iowa 1981), we upheld a jury instruction defining premeditation as “to think or ponder upon a matter before acting.” Similarly, the crime of assault with intent to commit sexual abuse requires a jury to determine whether a defendant had sexual intent even, though the assault may not have been sexual in nature. See State v. Casady, 491 N.W.2d 782, 785-86 (Iowa 1992) (admitting prior instances of defendant pulling young women into his car and sexually assaulting them to demonstrate sexual intent when defendant attempted, but failed, to pull a girl into his car). Treason also presents a crime that requires a similar inquiry, conviction for which the U.S. Supreme Court has previously upheld. Haupt v. United States, 330 U.S. 631, 1947 (noting that whether the acts were done “is a separate inquiry from that as to whether the acts were done because of adherence to the enemy, for acts helpful to the enemy may nevertheless be innocent of treasonable character”). As the Court explained in Mitchell, a conviction for treason “may depend very much on proof of motive” to “prove that the acts in question were committed out of ‘adherence to the enemy.’” Mitchell, 508 U.S. at 489, 113 S. Ct. at 2201, 124 L. Ed. 2d at 448.

Juries are capable of making determinations regarding intent and motivation, including whether a defendant acted “because of” a victim’s protected status. There may be cases where a lack of evidence will require a directed verdict and prevent the issue from reaching the jury. To support a conviction under section 729A.2, there must be enough evidence to support a jury determination beyond a reasonable doubt that the defendant would not have acted in the absence of the victim’s protected status. That level of evidence is present here.

Holding

Substantial evidence supports the jury determination that Hennings acted because of his victim’s race, as required by Iowa’s hate-crime statute. Additionally, the district court provided a sufficient statement on the record regarding the reasons behind the decision to sentence Hennings to consecutive sentences.

Appel, J. concurring

I agree with the result in the majority opinion and much of the analysis contained in it. I write separately only to emphasize the narrowness of today’s ruling.

The sole issue raised in this case is whether there is substantial evidence to support the verdict. On this narrow issue, there is authority in some jurisdictions that the use of a racial epithet in the heat of a fight or altercation, standing alone, may be insufficient to support a conviction of a hate crime. See Commonwealth v. Ferino, 433 Pa. Super. 306, 640 A.2d 934, 938 (Pa. Super. Ct. 1994).

In this case, there was substantial evidence that Hennings uttered a racial epithet at the conclusion of the initial encounter. But that was not the end of the matter. Instead of leaving, there was substantial evidence that Hennings returned to the scene and began using his vehicle to chase down an African-American youth.

Why did Hennings engage in this odd behavior when he had already begun to withdraw from the scene? In explaining his behavior to police who were investigating the incident, Hennings, after repeatedly using racially derogatory terms to describe the boys, declared “What … fuckin n__ don’t have enough sense to stay out the fuckin road … they deserve to get hit.” These were not angry words made in the course of a heated struggle, an isolated or stray comment reflecting the anger of the moment, or even simply a strident declaration of philosophy or belief. Hennings made these statements after passions had cooled to investigating officers trying to determine, among other things, why Hennings did not simply break off the encounter. Hennings, apparently, found repeated pejorative racial reference to the youth as relevant to explain his odd behavior that night, and so did the jury. On this record, I am satisfied that there is sufficient evidence to support the conviction of a hate crime.

I observe, however, that courts must take care to ensure that a defendant is not convicted of a hate crime merely because a defendant holds unorthodox or unpopular beliefs. In a hate-crime case, the trial judge must carefully control the admission of evidence and ensure that the jury is properly instructed on the law. Where convictions result, courts must carefully review the record to ensure that the jury has not convicted the defendant of a hate crime based merely upon his or her unsavory views.

Questions for Discussion

1. What is the prosecution required to establish to convict Hennings of a hate-crime?

2. The court discusses three types of defendants whom the state may attempt to convict of a hate crime. What are these three types of defendants? Why does the court conclude that Hennings belongs in the third category?

3. Would Hennings have been convicted absent the statements he made to the police following his criminal assault against the five young people?

4. Do you agree with Hennings that conviction for hate crimes involves “conjecture” and “speculation?”

Should the judge have issued a “willful blindness” instruction?

Blackburn, Chief J.

Following a jury trial, Edwin Perez Castillo appeals his conviction for trafficking in more than fifty pounds of marijuana, contending in two related enumerations of error that the jury should not have been instructed to consider the doctrine of “deliberate ignorance” and, in the absence of this doctrine, the evidence was insufficient to support the verdict. For the reasons set forth below, we affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. The testimony of a single witness is generally sufficient to establish a fact.

Viewed in this light, the record shows that, on September 17, 1997, California police intercepted two boxes from the mail containing approximately eighty-two pounds of marijuana. The boxes were addressed to a Bob Cliff residing at 692 Sheffield Road in Norcross, Georgia. California police then informed their counterparts in Norcross, Georgia, about the marijuana, and, on September 18, 1997, Norcross police took custody of the packages.

On September 19, 1997, Gwinnett County police made a controlled delivery of the packages. At the address listed on the boxes, Castillo answered the door. The undercover police officer announced that he had a package for Mr. Cliff, and Castillo responded, “Bob Cliff.” Castillo then signed the name “Bob Cliff” in the appropriate box indicating acceptance of delivery and printed the name “Jose Resimos” in another area. Shortly after the delivery of the packages, Castillo was arrested while trying to drive away from the premises. The home was then searched, and the marijuana was recovered from the living room and the bathroom.

After questioning, Castillo admitted that he accepted the boxes for Wilfrido Escutia, who previously pled guilty to a trafficking charge. Castillo recounted that Escutia told him to use an American name to sign for the boxes. In addition, both Castillo and Escutia tracked the boxes while they were in transit, and, after the delivery, Castillo would meet Escutia in a public restroom at a department store to deliver the boxes. Following delivery, Castillo would meet Escutia at yet another location to be paid approximately $200 per box for accepting delivery.

Although Castillo stated that he did not know that the boxes contained contraband, he gave varying accounts about the contents to different people. At trial, he maintained at one point that he had no idea what was in the boxes. Then, he changed his testimony and said that he believed they contained *659 videotapes containing English lessons. Prior to trial, however, he had told his sister that the packages contained coffee and leather goods sent to him by his mother from Mexico.

When asked, Castillo opined that he did not find anything suspicious about his arrangements with Escutia. He stated that he did not find it at all odd that Escutia paid him such a large sum to collect the packages, and he was not concerned about the furtive nature of their transactions.

This evidence was sufficient to support Castillo’s conviction. OCGA § 16-13-31(c) provides: “Any person who knowingly sells, manufactures, grows, delivers, brings into this state, or has possession of a quantity of marijuana exceeding 50 pounds commits the offense of trafficking in marijuana.” Castillo contends that his conviction was unwarranted because there was no evidence that he had any knowledge about the contents of the packages he accepted.

There was, however, circumstantial evidence upon which the jury could conclude that Castillo knew that he was accepting illegal contraband and remained deliberately ignorant of the exact contents of the packages. As the Eleventh Circuit Court of Appeals has pointed out: “Under … binding precedent in this Circuit, the knowledge element of a violation of a criminal statute can be proved by demonstrating either actual knowledge or deliberate ignorance. This Court has consistently recognized deliberate ignorance of criminal activity as the equivalent of knowledge. The deliberate ignorance instruction is based on the alternative to the actual knowledge requirement at common law that if a party has his suspicions aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge. Although we recognize that the delivery of such an instruction is proper only in those comparatively rare cases where there are facts that point in the direction of deliberate ignorance, we are satisfied that there was sufficient evidence in this case to warrant an instruction on deliberate ignorance.”

Castillo contends, nonetheless, that the trial court erred in charging the jury regarding his deliberate ignorance of the contents of the packages he accepted. “A deliberate ignorance instruction is appropriate when the facts support the inference that the defendant was aware of a high probability of the existence of the fact in question and purposely contrived to avoid learning all of the facts in order to have a defense in the event of a subsequent prosecution.” United States v. Schlei.

The trial court charged the jury: “The element of knowledge, intent, may be satisfied by inferences drawn from proof that a defendant deliberately closed his eyes to what would otherwise have been obvious to him. A finding beyond a reasonable doubt of conscious purpose to avoid enlightenment would permit an inference of knowledge. Stated another way, a defendant’s knowledge of a fact may be inferred from willful blindness to the existence of the fact. Again, whether or not you draw any such inference is a matter solely within your discretion.”

Castillo maintains that this instruction is faulty because it obviates the State’s burden of proving that he had actual knowledge of the contents of the packages. This argument, however, is myopic. If we were to accept Castillo’s argument, we would be granting protection to trafficking middlemen like Castillo, allowing them to escape prosecution simply by stating that they did not know the specific contents of the packages they were accepting, despite the obvious conclusion that they were dealing in contraband.

In this case, Castillo accepted packages for which he would not sign his own name. Indeed, he used two aliases when accepting them. Then, pursuant to his plans with Escutia, he delivered the packages covertly in a *660 department store bathroom, and he had to wait to be paid hundreds of dollars for his courier services at yet another location. This is exactly the sort of deliberate ignorance of undeniably shady transactions that should not be tolerated.

Judgment affirmed.

Is Ginger guilty of negligence?

Defendant was indicted for child neglect, She was convicted by a jury and appeals and argues that there the evidence was insufficient to constitute criminal negligence.

ORS 163.545 requires that a person having “custody or control of a child under 10 years of age commits the crime of child neglect if, with criminal negligence, he leaves the child unattended in or at any place for such period of time as may be likely to endanger the health or welfare of the child.”

Facts

Defendant and her husband were both 22 years of age; she has a tenth grade education. At the time of the alleged crime defendant had two daughters born out of wedlock, aged about six and four. Defendant and husband were married in 1976; they had a child in April, 1978, who died as a result of husband’s assaulting him in June, 1978. Her husband had a history of bad temper and several acts of physical violence. In October, 1977, he had spanked one of defendant’s daughters with a toy broom handle because she misbehaved and refused to correct her behavior. The incident, which occurred while the husband was babysitting the two daughters, caused severe bruises on the six-year-old girl’s buttocks and legs. As a result of that incident the husband was charged with assault and was awaiting trial at the time of the subject incident.

On two occasions the husband had gone to the bedroom of one of the girls and had spanked her, without immediate provocation and also without injury. The evidence indicates that in the daytime before the spankings the girl had misbehaved in some ill-defined fashion. The spankings occurred in the middle of the night, and the husband disclaimed any memory of them the next day. On two occasions defendant had been struck by the husband in the course of family arguments, and on one of those occasions she had received a black eye. Up to March, 1978, their marriage relationship had been characterized by frequent arguments, most of which arose out of his failure to have steady work. From October, 1977, to March, 1978, the husband was out of the house and living somewhere else. The wife said that after his return in March he seemed to have better control over his temper.

In January, 1978, Children’s Services Division became interested in the welfare of the two daughters, and a CSD caseworker urged upon the defendant either that the husband and wife have counseling if he were to live in the home, or that he not be around the daughters. The caseworker also later warned the mother that a “high-risk situation” could exist if the daughters were around the husband and also after a new baby would come into the home. The caseworker saw the husband only once but knew the history of the family. During the March to June period the mother left the father with the daughters as a babysitter without incident and, after the baby was born, also occasionally left the baby with the father without incident. All witnesses testified that the father seemed proud of the new baby. He participated in taking care of the child.

The mother interpreted the caseworker’s advice as meaning that the husband should not be living in the home. During some of the period after the birth of the child the father stayed at a friend’s house, but it is apparent that he spent a great deal of time at the mother’s home.

On the day of the assault the father had been in the back of the house working on an automobile. The mother asked him to load bottles in her car so they could be taken back to the store. The father thought there were not as many bottles there as there were supposed to be. An argument ensued because he did not accept either the mother’s statement that all the bottles that were supposed to be there were there or that she had not received any money from bottles which she was withholding from him. When she left the house to go to the car he was seen to have grabbed her arm or her hand several times, and he got into the car with the mother and a neighbor, who was going to the store with the mother. The argument was of a nonviolent sort, and it culminated in the husband’s asking, “Who’s going to take care of Junior?” She said that he was going to do that and he replied, “Okay, but don’t take all day.” She left and was gone approximately 45 minutes.

When she returned she found the child was injured. They immediately took the child to a hospital, but he died a few days later of head injuries received from at least two blows. The husband was convicted of manslaughter.

Defendant moved for a judgment of acquittal both at the close of the state’s case and at the close of the defense. Defendant argues that the statute should be construed not to apply to any situation where a parent has placed or permitted a child to be in the care of the other parent. It is unnecessary for us to determine that question, for even assuming that the statute can properly be applied in that setting, we conclude that the evidence was insufficient to submit the case to the jury.

The statutes describing the offense and the definition of the standard of care together required that before this charge of child neglect could have been submitted to the jury there had to be evidence from which it could fairly have been found: (1) that the act of the mother in leaving the child in the care of his father while doing an ordinary family chore was done without recognition of a high degree of likelihood that he would cause an injury to the child; and (2) that the failure to recognize that likelihood was different in an extraordinary way from what others would have done in similar circumstances.

Holding

Even given the husband’s record of bad temper and violence toward her and one of the older children, and the warnings of the caseworker, the evidence was not sufficient to permit a finding that the mother failed to recognize the degree of risk to the extent that any reasonable person would have done.

Roberts, J. dissenting

I dissent because I believe the evidence was sufficient to present a jury question and to support the jury verdict. Although the husband had never displayed violence toward the infant, the indications noted by the majority, i.e., the husband’s record of violence and bad temper and the warnings of the case worker, taken together with the fact that the wife’s departure was preceded by an argument, were sufficient for the jury to find the wife should have been cognizant of the danger presented by leaving the baby with the husband.

How would you decide Polk v. State in light of the precedent established in Steelman v. State?

The conclusion is inescapable that the General Assembly believed that possession of cocaine or a Schedule IV controlled substance near a school, distinct from any effort to distribute them there, presented its own dangers to children. In short, it is within the legislature’s prerogative to determine that a drug-free zone deters possible spillover effects, and to provide enhanced penalties for controlled substance violations in proximity to schools. The enhancement is rationally related to a legitimate legislative objective. Polk’s statutory construction argument amounts to a request for an exception for drug-possessing motorists who pass through a school zone but whose activities do not endanger children under the facts of the particular case. The legislature has determined that the enhancement is appropriate to deter violations. Because that judgment is rational, we cannot write Polk’s requested exception into the statute by judicial fiat. Polk maintains that if we rule against his position police will wait to pull over suspected possessors of drugs until their cars are within 1000 feet of a school. However, the enhancement is triggered by possession within the zone, whether or not the defendant is pulled over within the zone. It is the act of entering the zone, and not the police action of pulling the defendant over, that triggers the enhancement. Nothing forces drug offenders to drive within the drug-free zone created by the legislature. To the contrary, they pass there at their own peril and in jeopardy of their own penal interests.

Walker settled that drug offenders do not have to know that their activities are taking place near a school to be convicted under the school-zone enhancement. They are on notice of the location of their crimes. Literal application of the enhancement to extreme cases—for example, a subway or airplane passenger—is not before us today.

Can Jackson be prosecuted for the intentional killing of Bryan in Ohio? In Kentucky?

The court in Jackson undoubtedly realized the difficulty presented by this case and avoided the issue of concurrence. These types of cases have posed a challenge for courts. Clearly the intent and act did not concur. Courts have used a creative approach and have argued that the disposal of the body was part of the original plan or that the killing and disposal were part of a single scheme with a common intention. This would permit Ohio to retain jurisdiction over the murder. Other courts have ruled that the intent must coincide with the act and would rule that jurisdiction resides in Kentucky.