Myers v. State

Myers v. State, No. 297, September Term, 2019, Opinion by Graeff, J. PRECEDENTIAL SIGNIFICANCE — SPLIT DECISIONS The holding of a plurality decision of the Supreme Court is “that position taken by those Members who concurred in the judgments on the narrowest grounds.” State v. Falcon, 451 Md. 138, 161 (2017) (quoting Marks v. United States, 430 U.S. 188, 193 (1977)). In determining the precedential significance of a Court of Appeals decision without a majority opinion, the Court of Appeals follows a “somewhat similar approach.” Id., at 162. This approach analyzes whether there is a position adopted by a majority of the judges, whether or not they concurred in the judgment, including those set forth in dissenting opinions. Where there is a majority opinion on one issue that resolves the case, statements of law set forth in concurring and dissenting opinions on a separate issue, even if joined by a majority of the judges, do not have precedential authority.

CRIMINAL LAW — NEGLECT OF A MINOR — CONSTITUTIONAL LAW — VOID FOR VAGUENESS Md. Code Ann., Criminal Law Article (“CR”) § 3-602.1(b) (2012 Repl. Vol.) provides that “[a] parent, family member, household member, or other person who has permanent or temporary care or custody or responsibility for the supervision of a minor may not neglect the minor.” “‘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.” CR § 3-602.1(a)(5)(i). CR § 3-602.1, on its face and as applied to the facts of appellant’s case, is not unconstitutionally vague. It provides fair notice of the conduct that is prohibited, and it does not lead to arbitrary enforcement.

Here, appellant, an unlicensed daycare provider, fell asleep and failed to supervise the two-year old in her care because she consumed heroin the night before and was suffering from withdrawal, and she failed to seek prompt medical care after the child fell and was unconscious. A person of ordinary intelligence and experience in appellant’s circumstances would have understood that CR § 3-602.1 prohibited her conduct. Circuit Court for Baltimore County Case No. 03-K-18-2531 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 297 September Term, 2019 ______________________________________ HEATHER MYERS v. STATE OF MARYLAND ______________________________________ Graeff, Leahy, Battaglia, Lynne A. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Graeff, J. ______________________________________ Filed: November 18, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.

Suzanne Johnson 2020-11-19 09:30-05:00 Suzanne C. Johnson, Clerk On January 19, 2018, S. N. left her two-year-old daughter with Heather Myers, appellant, an in-home daycare provider. Appellant fell asleep on her living room couch, and she woke up when she heard a thud. She found the child unconscious in a bedroom. The child suffered a catastrophic brain injury that left her blind and functioning at the level of a 3- to 4-month-old child.

Appellant was charged in the Circuit Court for Baltimore County with neglect of a minor, in violation of Md. Code Ann., Criminal Law Article (“CR”) § 3-602.1 (2012 Repl. Vol.). She filed a motion to dismiss, arguing that the statute was unconstitutionally vague. After the circuit court denied the motion, appellant entered a conditional guilty plea, preserving her right to appeal the constitutionality of the statute.

On appeal, appellant presents the following question for this Court’s review, which we have reworded slightly: Is CR § 3-602.1, the child neglect statute, unconstitutional because it is vague? For the reasons set forth below, we answer that question “no,” and therefore, we shall affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND On January 19, 2018, two days after her daughter’s second birthday, S. N. dropped off Madi at appellant’s residence. S.N. was a single mother working at St. Joseph’s Medical Center, and she had hired appellant as her daycare provider on the recommendation of a friend.

S.N. paid appellant, an unlicensed provider who had “watched several children throughout the years,” more than a hundred dollars a week to care for Madi. Appellant also was caring for her own four-year-old son. S.N., who considered appellant an attentive caregiver and a friend, was not aware that appellant was addicted to heroin. S.N. left Madi with appellant at approximately 8:30 a.m. that morning.

She went to a doctor’s appointment, and when she called to check on Madi after her appointment at approximately 10:30 a.m., appellant reported that everything was fine. S.N. then went to work at St. Joseph Medical Center. At approximately 12:19 p.m., she checked her cell phone and saw that she had numerous missed calls from appellant. S.N. recounted what happened next: I was not supposed to be on my phone, especially while on patient floors but I assumed it was urgent with so many missed calls from [appellant], so I called her back.

Upon calling her back, she told me that there was an accident and that I needed to pick Madi up and take her to the emergency room right away. Thankfully, I had two nurses sitting in front of me who . . . calmed me down and told me what to ask. I proceeded to ask [appellant] two questions, one being if Madi was conscious. Two, if she was breathing.

The reason I asked these two questions was because if she was unconscious or not breathing, I simply could not just pick her up and take her to the emergency room, she needed immediate care from EMS. Upon asking these questions, she reiterated that I needed to come pick Madi up myself right away and take her to the emergency room. I then again asked if she was conscious and breathing, and [appellant] informed me that she was breathing and unconscious. I informed [appellant] that I am unable to just pick her up and take her to the emergency room, that I was hanging up and she needed to call 911 right away.

I also told her to keep her hand on her chest to ensure that she was breathing and to not move her in case of spinal cord injury. She called 911, and I ran out of work. 2 At 12:22 p.m., after speaking with S.N., appellant called 911, reporting that Madi “had fallen from the top bunk.” The first responder on the scene found the child “on the floor, immobile, unresponsive and unconscious” next to a four-foot-high loft bed. Appellant told the officer that “Madi was placed on the loft bed for a diaper change,” and when appellant went “out to the living room area where the diapers were,” the child “must have fallen off the bed, because she had heard her fall when she was in the other room.” When medics arrived moments later, they observed that the child “had raspy breathing,” and “her pupils were unevenly dilated, indicating that there was blood or brain injury.” Because “[s]he was suffering from high intracranial pressure,” i.e., brain swelling, she was transported by helicopter from a nearby school to Johns Hopkins. Madi survived after a series of emergency and surgical interventions, including the removal of a portion of her skull.

As a result of her injuries, however, which included “acute subdural hemorrhage causing a midline shift of the brain,” she was left blind, and she will forever function at the level of a 3- to 4-month old child, who needs 24-hour care. S.N., who has a bachelor’s degree in nursing, quit her nursing job to become Madi’s full- time care provider. After doctors concluded that the child’s injuries were inconsistent with a four-foot fall in the manner appellant had described, the police re-interviewed appellant, and she changed her account of what happened. Appellant admitted that she had used heroin the night before Madi’s accident, but she denied that she was under the influence when she 3 was caring for Madi.1 She stated that, on the day of the accident, “she was getting sick from withdraw[al] and was not feeling well,” so she laid down on the couch and fell asleep for “over 30 minutes.” When she went to sleep, her son was watching his iPad, and “Madi was playing in the living room area.” Appellant stated that she “woke up to a thud.” She ran into the bedroom and saw Madi unconscious.

She picked Madi up and “tried to wake her up but could not.” Appellant was not able to explain how the injuries to Madi occurred, but she indicated that Madi recently had been climbing on the loft bed. When Madi’s doctor was advised that she might have climbed up to the top rung of the ladder on the loft bed, he agreed that her head injuries could have been caused by her falling back and hitting the back of her head. Appellant was charged with one count of neglecting a minor in violation of CR § 3- 602.1(b), which provides that “[a] parent, family member, household member, or other person who has permanent or temporary care or custody or responsibility for the supervision of a minor may not neglect the minor.” “Neglect” is defined 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.” CR § 3-602.1(a)(5)(i). On September 11, 2018, appellant filed a motion to dismiss the charge, asserting, among other things, that the statute was unconstitutionally vague because it failed to 1 Appellant stated that she had developed an addiction to Percocet after having meningitis and another injury following the birth of her child, and she then “moved to heroin because [it was] a cheaper, easier alternative.” 4 “provide fair notice of the conduct proscribed” or “provide explicit standards of enforcement.” She argued that the statute does not identify what conduct might qualify as “neglect,” asserting that the statute does not make clear what constitutes “necessary assistance and resources,” the child’s “physical needs,” and a “substantial risk of harm.” CR § 3-602.1(a)(5)(i).

Following a hearing, the circuit court denied appellant’s motion. The court found that CR § 3-602.1 was constitutional, stating that the legislature intentionally did not provide particular examples of what constituted neglect because each case involves an individual factual determination. On April 17, 2019, appellant entered a conditional guilty plea. The court sentenced her to five years’ imprisonment, all but 18 months suspended, and three years’ supervised probation.

This appeal followed. STANDARD OF REVIEW “[T]he standard of review of the grant or denial of a motion to dismiss is whether the trial court was legally correct.” Howard v. Crumlin, 239 Md. App. 515, 521 (2018) (quoting Blackstone v. Sharma, 461 Md. 87, 110 (2018)), cert. denied, 463 Md. 153 (2019). We review the denial of a motion to dismiss de novo. D.L. v. Sheppard Pratt Health Sys., Inc., 465 Md. 339, 350 (2019); Lipp v. State, 246 Md. App. 105, 110 (2020). 5 DISCUSSION Appellant contends that CR § 3-602.1 is “unconstitutionally vague on its face and as applied to the particular facts of this case.” She asserts that the statute “is not sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, and . . . it fails to establish minimal guidelines to govern law enforcement, leading to arbitrary and discriminatory enforcement.” The State contends that appellant’s challenge “must fail because the constitutional vagueness of § 3-602.1 was decided by the Court of Appeals in Hall v. State, 448 Md. 318 (2016).” It asserts that, “[b]ecause a majority of the judges in Hall found [CR] § 3-602.1 not to be unconstitutionally vague, that finding constitutes precedent of the Court of Appeals and this Court is bound by it.” Recognizing that the five judges who opined on the constitutionality of CR § 3-602.1 were those who wrote or joined concurring and dissenting opinions, the State asserts as an alternative argument that, even if the opinion of the five judges in Hall is not binding precedent, it is, at a minimum, “persuasive and well- reasoned dicta that should be followed by this Court.” In her reply brief, appellant argues that Hall is not “binding precedent.” She asserts that the “common thread” in the different opinions is that the evidence “was insufficient to sustain Ms. Hall’s conviction for neglect.” Accordingly, appellant argues that “the positions of the concurring and dissenting judges may be persuasive authority,” but “they are not binding on this Court.” 6 I. Precedential Value of Hall v. State We begin our analysis with a review of the Court of Appeals’ decision in Hall to determine whether, as the State alleges, that decision constitutes binding precedent that CR § 3-602.1 is not unconstitutionally vague.

In that case, Ms. Hall had left A., her three-year- old son, who was “difficult to handle” and had a history of escaping the home, in the overnight care of D., Ms. Hall’s 14-year-old daughter, without any way for the daughter to contact Ms. Hall. Hall, 448 Md. at 323–26. At approximately 2:00 a.m., A. was found in the middle of a six-lane road. Id. at 324.

Ms. Hall was convicted of criminal child neglect pursuant to CR § 3-602.1. Id. at 326. This Court upheld the conviction, and Ms. Hall sought review in the Court of Appeals on two grounds: (1) the statute was void for vagueness; and (2) the evidence was insufficient to support her conviction. Id. at 321, 326.

The Court of Appeals ultimately reversed Ms. Hall’s conviction, but the case generated three separate opinions. Judge Battaglia, joined by Judge Adkins, wrote an opinion announcing the judgment of the Court. Judge Battaglia determined that the evidence was not sufficient to support Ms. Hall’s conviction. Id. at 327.

Based on that conclusion, and the policy to decide constitutional issues only when necessary, Judge Battaglia determined that the Court did not need to reach the issue whether CR § 3-602.1 was constitutional. Id. at 327 & n.6. Judge McDonald wrote a concurring opinion, joined by Chief Judge Barbera, stating that a holding that the evidence was insufficient to support Ms. Hall’s conviction 7 “necessarily entails a decision that the statute is not unconstitutionally vague.” Id. at 337. Judge McDonald explained: If the statute were unconstitutionally vague, then a trier of fact would not know what the essential elements of the crime were and we could not reach a conclusion, one way or the other, whether the trier of fact could have found that the elements of the offense were proven.

Thus, in order to conclude, as the Majority opinion does, that no rational trier of fact could have found the essential elements of the crime from the evidence here, we necessarily must be able to identify the elements of the offense and have surmounted the vagueness hurdle. For the reasons that Judge Hotten’s dissent ably explains, I do not believe that the statute is unconstitutionally vague. However, for the reasons that the Majority Opinion elucidates, I do not believe the evidence was sufficient to support the conviction. Id. at 338.

Judge Hotten wrote a dissenting opinion. Id. at 339–54 (Hotten, J., dissenting). This opinion, which was joined by Judge Greene and Judge Watts, stated that the evidence was sufficient to support Ms. Hall’s conviction, and CR § 3-602.1 “was not unconstitutionally vague as applied to Ms. Hall.” Id. at 339. Thus, four judges, Judges Battaglia, Adkins, McDonald, and Chief Judge Barbera, determined that the evidence was insufficient to support Ms. Hall’s conviction, resulting in a majority opinion to reverse Ms. Hall’s conviction.

Five judges, however, Judges Hotten, Greene, Watts, McDonald, and Chief Judge Barbera, concluded, in concurring and dissenting opinions, that CR § 3-602.1 was not unconstitutionally vague as applied to Ms. Hall. The State contends that, because five judges in Hall determined that CR § 3-602.1 was not unconstitutionally vague, “that finding constitutes precedent of the Court of 8 Appeals and this Court is bound by it.” It asserts, relying on State v. Falcon, 451 Md. 138, 161 (2017), that when there is a split decision, “a legal proposition that garners the agreement of at least four judges constitutes precedent of the Court, even if the proposition did not garner the agreement of the opinion that announced the Court’s judgment.” In Falcon, 451 Md. at 161 , the Court stated that, in a Supreme Court case that lacks a majority opinion, it follows the “Marks approach,” referring to Marks v. United States, 430 U.S. 188, 193 (1977). It explained that approach as providing that, “[w]hen a fragmented . . . Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Falcon, 451 Md. at 161 .

The Court then explained that, in “determining the precedential significance of a case without a majority opinion” in the Court of Appeals, it follows a “somewhat similar approach.” Id. at 162 . In support, the Court cited to Cure v. State, 421 Md. 300, 318, 321 (2011), where the Court adopted the reasoning of a dissent in a “fractured” decision, noting that, “[f]or purposes of stare decisis . . . this is a proposition that garnered the support of four Judges.” It also cited to State v. Giddens, 335 Md. 205 , 213 n.6 (1994), where the Court held that the issue whether a crime bore on witness credibility was a matter of law, noting the parties’ agreement with this standard and that four judges, in concurring and dissenting opinions, in a prior opinion had come to that conclusion. In Falcon, 451 Md. at 171–72, the Court examined the legal propositions set forth in the four separate opinions in a prior case with no majority opinion. The Court 9 determined that, although there were disagreements in the different opinions, there was some common ground, and all of the opinions would support the result reached in Falcon.

Id. at 172–73. We note initially that the Court of Appeals’ approach to interpreting its split decisions is “somewhat similar” to the Marks approach in interpreting split Supreme Court decisions, but it is different. The Marks approach provides that “the holding of the [Supreme] Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks, 430 U.S. at 193 (emphasis added). The approach that the Court of Appeals has adopted for determining the precedential significance of a plurality opinion, by contrast, involves looking for a position adopted by a majority of the judges in all the opinions, whether or not they concurred in the judgment, including those set forth in dissenting opinions.

See Shane M.K. Doyle, Comment, The Unsoundness of Silence: Silent Concurrences and Their Use in Maryland, 79 Md. L. Rev. Online 129, 140 (2020) (referring to Maryland’s approach to analysis of plurality opinions as the “all opinions approach”).2 That approach appears to be the basis for the State’s argument that the views of the five judges in the concurring and dissenting opinions constitute binding precedent in this case. 2 This Court also has considered dissenting opinions in determining the precedential authority of a plurality opinion of the Court of Appeals. See State v. Johnson, 208 Md. App. 573 , 599–600 (2012) (In determining the precedential effect of Agurs v. State, 415 Md. 62 (2010), where there were multiple opinions expressing different views on two issues, we stated that the only authoritative opinion was that set forth by the three-judge plurality reversing the case, with respect to the portion with which one dissenting judge agreed.). 10 The analysis set forth in Falcon, however, is applicable when “determining the precedential significance of a case without a majority opinion.” Falcon, 451 Md. at 162 . In Hall, there was a majority opinion, i.e., that the case should be reversed based on the insufficiency of the evidence. The question, then, is whether a legal proposition on a different issue that was supported by five judges is binding precedent or persuasive dicta.

We addressed a similar situation in Faison v. MCOCSE, 235 Md. App. 76 (2017). In that case, we addressed the impact of a prior case, Davis v. Wicomico County Bureau, 447 Md. 302 (2016), on Faison’s argument that, although he signed an affidavit of parentage, he was entitled to an order authorizing genetic testing. Faison, 235 Md. at 83– 84. Davis, similar to Hall, generated three separate opinions.

The opinion announcing the judgment of the Court, comprised of three judges, determined that Davis’ claim was barred by the doctrine of res judicata. Davis, 447 Md. at 311 . Similar to Hall, the concurring opinion agreed on the issue deciding the case, providing a four-vote majority opinion. The dissenting opinion, comprised of three judges, was of the view that the claim was not barred by res judicata, and Davis should be granted a genetic test.

Id. at 337–57. Because the concurring opinion agreed with the dissent that, if the claim had not been barred by res judicata, Davis had the right to genetic testing, id. at 336–37, a majority of the judges concluded that, generally, a putative father, after executing an affidavit of parentage, could obtain a genetic test. In assessing the effect of the 3-1-3 Davis decision, Judge Nazarian, writing for this Court, stated that “the Davis concurrence-plus-dissent’s statutory analysis qualifies officially as dicta.” The Court went on to state, however, that, “[d]icta or not, . . . the 11 dissent has analyzed the statute correctly.” Faison, 235 Md. App. at 84 . See also Boone v. Youngbar, 234 Md. App. 288, 298 (2017) (recognizing the challenge in determining the impact of the fractured vote in Davis on the ability of a father who signed an affidavit of parentage to challenge parental status with a genetic test, but not deciding the issue because it was not raised).

As the Court in Faison indicated, and contrary to the State’s argument here, where there is a majority opinion on one issue that resolves the case, statements of law set forth in concurring and dissenting opinions on a separate issue, even if joined by a majority of the judges, do not have precedential authority.