State v. Morrison

State of Maryland v. Muriel Morrison, No. 56, September Term 2019. Opinion by Hotten, J. SUFFICIENCY OF THE EVIDENCE—INVOLUNTARY MANSLAUGHTER— GROSS NEGLIGENCE The Court of Appeals held the evidence was not sufficient to support the involuntary manslaughter conviction, because co-sleeping by a caregiver with a child after consuming alcohol does not necessarily pose a substantial risk of harm. To the extent that the conduct creates a risk of harm, the attendant factors in conjunction with the associated risk did not support a finding of gross negligence. SUFFICIENCY OF THE EVIDENCE—RECKLESS ENDANGERMENT— SUBSTANTIAL RISK The Court of Appeals held that the evidence was not sufficient to support the conviction for reckless endangerment, because the conduct did not constitute a gross departure from that of a reasonably prudent person.

Circuit Court for Baltimore City Case No. 113303023 Argued: March 5, 2020 IN THE COURT OF APPEALS OF MARYLAND No. 56 September Term, 2019 __________________________________ STATE OF MARYLAND v. MURIEL MORRISON __________________________________ Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, Biran, JJ. __________________________________ Opinion by Hotten, J., which Barbera, C.J., Watts and Booth, JJ., join. Concurring opinion by Watts, J., which Barbera, C.J. and Booth, J., join. McDonald, Getty and Biran, JJ., dissent. __________________________________ Filed: July 28, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-02-10 16:28-05:00 Suzanne C. Johnson, Clerk A jury in the Circuit Court for Baltimore City convicted Respondent, Muriel Morrison (“Ms. Morrison”), of involuntary manslaughter, reckless endangerment, and neglect of a minor, stemming from the death of her infant. The infant died as a result of “asphyxia from probable overlay”1 after Ms. Morrison “co-slept”2 with her four-month-old infant and her four-year-old daughter, following a virtual evening of drinking beer with friends via Facebook livestream.

Ms. Morrison appealed her convictions to the Court of Special Appeals, which reversed in part.3 The State timely appealed the decision of the 1 Asphyxia, or blockage of the infant’s airway, occurring “[w]hen another person shares the sleep surface with the infant and lays on or rolls on top of or against the infant while sleeping[.]” United States Department of Health and Human Services and National Institutes of Health, Safe to Sleep: Common SIDS and SUID Terms and Definitions, https://safetosleep.nichd.nih.gov/safesleepbasics/SIDS/Common (last visited July 17, 2020), archived at https://perma.cc/A7UH-NYZA. 2 The term “co-sleeping” is most commonly used to describe a situation where a caregiver sleeps on the “same sleep surface as an infant[,]” but “it was used originally and more broadly to include both room-sharing and bed-sharing practices.” Jeanine Young, PhD & Rebecca Shipstone, SIDS Sudden Infant and Early Childhood Death: The Past, the Present and the Future, Shared Sleeping Surfaces and Dangerous Sleeping Environments, https://www.ncbi.nlm.nih.gov/books/NBK513372/ (last visited July 17, 2020), archived at https://perma.cc/KU3Z-M3W7. The Court of Special Appeals and the parties adopted the use of “co-sleeping” to refer to an act that is more precisely described as “bed-sharing” or “the practice of sleeping in the same bed with one’s child[.]” Bed-sharing, Merriam-Webster’s Dictionary, https://www.merriam-webster.com/dictionary/bed-sharing (last visited July 17, 2020), archived at https://perma.cc/Y64Q-JG9Z. 3 On appeal, Ms. Morrison also argued that there was insufficient evidence to support her conviction for neglect of a minor, and that any remaining convictions should be merged for sentencing purposes. The Court of Special Appeals declined to address this argument on preservation grounds. Morrison v. State, No. 1859, Sept. Term 2017, 2019 WL 3992051 (Md. App. Aug. 23 2019).

Court of Special Appeals. We granted certiorari to address the following question, which we have slightly rephrased: Was the evidence sufficient to permit a rational trier of fact to find that [Ms. Morrison] was guilty of involuntary manslaughter and reckless endangerment in the death of her infant beyond a reasonable doubt?[4] We answer that question in the negative and affirm the judgment of the Court of Special Appeals. FACTUAL AND PROCEDURAL BACKGROUND I. The Underlying Incident As reflected from the trial testimony, during September 2013, Ms. Morrison resided in a three-story rowhouse in Baltimore City with her two youngest daughters, four-month- old I.M. and her four-year-old sister (“the four-year-old”).5 Ms. Morrison awoke around 7:45 a.m. on September 2, 2013 and discovered that I.M. was unresponsive. The night before, Ms. Morrison participated in a virtual “[M]oms’ night out[]” with girlfriends and 4 In its brief, the State phrased their question presented as follows: Was the evidence sufficient to permit a rational trier of fact to find that [Ms.] Morrison’s conduct amounted to gross negligence where it showed that [Ms.] Morrison, after drinking herself into a self-described state of drunkenness and/or to the point of passing out, co-slept with an infant and another child in a full-sized bed and the infant died of ‘asphyxiation from probable overlay’? 5 To protect the privacy of the minor children involved, we do not identify them by name.

See In re J.R., 246 Md. App. 707 , 717 n.1, 232 A.3d 324 , 330 n.1 (2020). 2 consumed approximately four cups of beer.6 Approximately two and a half hours later, she fell asleep in the bed she shared with her two minor daughters. At some point, the four- year-old awoke and observed Ms. Morrison sleeping on top of I.M. The four-year-old unsuccessfully attempted to awaken Ms. Morrison by yelling and “thr[o]w[ing] stuff” at her. Ms. Morrison later awoke to find the four-year-old playing on the floor next to the bed and I.M., closer to the edge of the bed, unconscious. I.M.’s lips were blue and her body was cold to the touch.

The four-year-old told Ms. Morrison that she had “rolled on top of the baby” in her sleep. Ms. Morrison unsuccessfully attempted to perform CPR and called 911 twice7 before the paramedics and police arrived at her home. I.M. was transported to Johns Hopkins Hospital (the “hospital”) for treatment, but was pronounced dead upon arrival. The medical examiner determined that the cause of death was “asphyxiation from probable overlay,” as a result of Ms. Morrison sleeping on top of the infant.

Ms. Morrison was subsequently charged with involuntary manslaughter, first- degree assault, second-degree assault, and reckless endangerment, in connection with 6 As explained in more detail below, she consumed the beers during a virtual “moms’ night out” to celebrate the impending first day of school. The other mothers were on Facebook, where they were toasting one another and celebrating virtually because they resided in different states. Ms. Morrison later testified that she consumed about two cans of beer and some portion of a forty-ounce beer—a total of four cups. 7 The first time Ms. Morrison hung up without providing her address to the dispatcher and had to call back a second time to do so. 3 I.M.’s death. A grand jury returned an indictment for all charges, except first-degree assault and added a charge for neglect of a minor.

II

Legal Proceedings A. The Circuit Court Proceeding At trial, the State called as its first witness, Jamel Jones (“Mr. Jones”), one of the paramedics who responded to the 911 call. Mr. Jones testified that the four-year-old advised him that her younger sister had stopped breathing. As Mr. Jones approached the top of the stairs, he observed Ms. Morrison carrying an unresponsive I.M. in her arms. When his efforts to resuscitate I.M. proved unsuccessful, he transported I.M. to the hospital, where she was later pronounced deceased.

Ms. Morrison’s four-year-old daughter—who was seven years old at the time of trial—testified that she woke up and went downstairs to get some juice. When she returned to the bedroom, she observed her mother lying on top of I.M. The four-year-old alleged that she threw unidentified items at her mother and yelled, “Mom, you’re on my baby sister,” but Ms. Morrison remained in a “deep sleep.” She testified that I.M. slept in the middle between her and her mother. She described her mother as laying on her left side, facing I.M.—a position that defense counsel regarded in closing argument as consistent with “care feeding[.]” That is “where the baby is just on the nipple…resting and relaxing.”8 8 The record does not reflect what the four-year-old was doing at this time. The following colloquy occurred to describe the way that Ms. Morrison laid in the bed, next to I.M.: (continued . . .) 4 The four-year-old also testified that her father called on Ms. Morrison’s cell phone while the four-year-old attempted to awaken Ms. Morrison, but the ringing of the phone did not (. . . continued) Q: Now, when mommy was laying in the bed, can you tell the ladies and gentlemen of the jury if mommy ever moved, or if she just stayed still?

A: Oh, by being on top of my baby sister? Q: Yes? *** A: She stayed still when she was on top of my baby sister. She just rolled over. She rolled on my baby sister and then almost went back to sleep. *** Q: Now, when your mommy was in the bed, before she rolled over, can you describe how she was laying in the bed?

A: [S]he was like this. He[r] hair was—her hair was right here. And then she was right here. Q: [W]as your mommy laying on her back, or was she laying on her side?

A: Her side…[t]his side. *** Q: I can’t see you. Which one are you pointing to? A: This end. Q: Okay.

On her left side? A: Yeah. *** Q: --what part of mommy’s body touched [I.M.]? A: Only this side of laying on her—no—no, this side laying on her actually. This side was laying on her, and her face was turned this way actually.

Q: So [,] her left breast? A: That’s what I remember. 5 awaken her. She further advised that I.M. was crying when Ms. Morrison laid on top of her, but she was not making any noise when the phone rang. Additionally, the four-year- old indicated that her mother appeared to have “woke[n] up out of her deep, deep sleep[,]” only briefly, after the phone call ended, but Ms. Morrison continued laying on I.M. and purportedly told the four-year-old that I.M. was okay before going back to sleep.

The four- year-old also testified that she again tried to awaken Ms. Morrison, but was “too tired” and fell back asleep. Sergeant Laron Wilson (“Sgt. Wilson”), the police officer who responded to the 911 call, testified that he received a call for a “child non-breather” around 8:37 a.m. on September 2, 2013. According to Sgt.

Wilson, the paramedics had already taken I.M. to the hospital, but Ms. Morrison remained upstairs, where she sat on the edge of the bed, staring blankly. Sgt. Wilson asked Ms. Morrison if she was alright, and Ms. Morrison responded, “No. I killed my baby.” She further stated: “I got drunk and killed my baby.” Sgt. Wilson did not recall observing any behavior consistent with being under the influence of alcohol.

Latonya Townsend (“Ms. Townsend”), a licensed clinical social worker in the Pediatric Emergency Department at the hospital, testified regarding her interview of Ms. Morrison. According to Ms. Townsend, Ms. Morrison informed her that she drank “a few beers” the night before, after putting the children to bed. Ms. Townsend also recalled Ms. Morrison telling her that she had not consumed alcohol in quite some time prior to that evening. She also informed Ms. Townsend that when she woke up the next morning, she noticed that I.M.’s lips were blue and her body was cold.

In addition, Ms. Townsend 6 testified that Ms. Morrison told her she was not sure what happened to I.M. and that Ms. Townsend would have to talk to her four-year-old. Detective Jonathan Jones (“Det. Jones”), a homicide detective with the Baltimore City Police Department (“BPD”), was also called as a witness.9 He testified that at the hospital, Ms. Morrison told him she had laid her children … her baby down in the bed with her four-year-old. Then she went on to begin drinking between that---she laid her children down between … 10 p.m. and 12 a.m., and then she began to drink.

She doesn’t know what happened after that. She woke up, and … the baby was unresponsive. Additionally, the State introduced recorded statements that Ms. Morrison made to Det. Jones and Sgt.

Richard Purtell at the police station after being advised of her Miranda rights.10 In her recorded statement to the police, Ms. Morrison advised that she did not know what happened, that she had been “drinking a 40[11] like for … maybe an hour” earlier that evening, and that her four-year-old told her that she “rolled over” on I.M. Ms. Morrison recalled changing I.M.’s diaper around 2:30 a.m. She also stated that she drank 9 During a pre-trial suppression hearing, Ms. Morrison moved to suppress the statements she made to Det. Jones. The trial court denied the motion to suppress and the videotape of her interview was played for the jury. 10 See Miranda v. Arizona, 384 U.S. 436, 479 , 86 S. Ct. 1602, 1630 (1966) (holding that an individual who is subject to a custodial interrogation, must be informed that “he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires[]”). 11 A “40” is a colloquial term for a forty-ounce bottle of malt liquor. 7 more than half of the 40-ounce.12 Det.

Jones later transferred Ms. Morrison to Mercy Hospital for a blood alcohol concentration test. However, the collected blood sample was not tested because the “window of opportunity to … accurately test the blood for alcohol had already gone through the window.”13 Det. Jones also testified that he never detected the smell of alcohol on her breath or person.14 Next, the State introduced videotaped deposition testimony from the medical examiner, Dr. Ana Rubio (“Dr. Rubio”).15 Although Dr. Rubio was unable to conclusively determine the infant’s cause of death, Dr. Rubio opined that it was likely caused by “asphyxiation from overlay[,]” because the police investigative report reflected that I.M. was found unconscious under her mother16 and the autopsy did not reveal the presence of any traumatic injuries or “natural disease processes[.]” Regarding the manner of death, Dr. Rubio determined that I.M.’s death was accidental. When asked about other potential 12 Her trial testimony revealed that she had two 12-ounce cans of beer and a little over half of a 40-ounce bottle of Private Stock malt liquor the night before I.M. died. 13 Hours had elapsed between the time Ms. Morrison advised the officers she drank alcohol and the time of the interview.

Det. Jones was informed by the Department that any alcohol that may have been in her system had dissipated. 14 Det. Jones testified that he did not observe any of the typical signs of intoxication, including slurred speech, inability to comprehend instructions, or follow through with menial tasks, and that he did not administer field sobriety tests. 15 Videotaped deposition testimony was taken in lieu of live testimony because Dr. Rubio retired before trial and was subsequently unavailable for the scheduled trial date. 16 I.M. was not found under her mother. 8 causes of death, such as Sudden Infant Death Syndrome17 (“SIDS”), Dr. Rubio testified that she was unable to either identify or rule out SIDS as the cause of death, since the possibility of asphyxiation is enhanced when the infant is sleeping with others. At the close of the State’s case, Ms. Morrison moved for judgment of acquittal, but the motion was denied.18 Following the denial of her motion, Ms. Morrison was called as the sole witness for the defense.

She testified that during the day on September 1, 2013, she and her daughters had a “tire out day, which is a day [she] spen[t][] doing activities all day[,] instead of keeping them in the house.” She further testified that, later that evening, 17 According to the Center for Disease Control (“CDC”), “[s]udden unexpected infant death (“SUID”) is a term used to describe the sudden and unexpected death of a baby less than 1 year old[,] in which the cause was not obvious before investigation.” Centers for Disease Control and Prevention, Sudden Unexpected Infant Death & Sudden Infant Death Syndrome, https://www.cdc.gov/sids/about/index.htm (last visited July 17, 2020), archived at https://perma.cc/4SQB-XX7G. SUIDs include “sudden infant death syndrome (SIDS), accidental suffocation in a sleeping environment, and other deaths from unknown causes.” Id. The Maryland Office of the Chief Medical Examiner defines SUID as “…the sudden death of an infant less than one year of age that cannot be explained after a thorough investigation is conducted, including a complete autopsy, examination of the death scene, and a review of the clinical history. All potentially non-natural causes of death cannot reasonably be excluded by the investigation and/or there is an issue of concern; for example[,] an unsafe sleeping environment or other environmental concerns, previous SIDS in the immediate family, healed unexplained injuries, parental substance abuse etc.” Maryland State Child Fatality Review Team, 2018 Legislative Report, Health Gen.

Art., § 5-704(b)(12), https://phpa.health.maryland.gov/documents/Health-General-Article-5-704(b)(12)- Maryland-State-Child-Fatality-Review-Team-2018-Annual-Legislative-Report.pdf (last visited July 17, 2020), archived at https://perma.cc/UQA2-8K56. Some cases of SUID fall under the subcategory of SIDs. “SIDS is a diagnosis of exclusion, assigned only when all known and possible causes of death have been ruled out.” Id. at 13. 18 During the oral motion for judgment of acquittal, defense counsel did not mention the neglect of a minor charge. 9 she was on her porch drinking, while participating in “a [virtual] mom[‘s] night out” with friends to celebrate the upcoming school year. Ms. Morrison put the four-year-old to bed to watch a movie sometime after 10 p.m. She stayed on the porch rocking I.M. until I.M. fell asleep, then put I.M. in the bed with the four-year-old, and returned to the porch.

A neighbor offered Ms. Morrison one 12-ounce can of beer, and she later “sent for” another 12-ounce can and a “40.” Ms. Morrison recalled having about four cups of beer that evening. She waited until 2:30 a.m. for the children’s father to arrive, and when he failed to do so, she went inside. Thereafter, Ms. Morrison was able to continue with her usual routine of “pumping”19 her breastmilk, changing I.M.’s diaper, locking the doors, and turning the television channel to PBS, before getting into bed with her daughters and falling asleep. She recalled that the four-year-old awakened and told her that the children’s father was on the phone, but by the time Ms. Morrison picked up the phone, he was no longer on the line.

Ms. Morrison testified that the four-year-old then went to the bathroom and when she returned, Ms. Morrison pretended to sleep and placed her arm over I.M. so that the four-year-old would also fall back asleep. Ms. Morrison testified that she awoke naturally around 7:45 a.m. and observed that I.M. appeared “listless” at the end of the bed. She also “Pumping” refers to the act of expressing breast milk into a baby bottle. Centers 19 for Disease Control and Prevention, Nutrition: Pumping Breast Milk, https://www.cdc.gov/nutrition/infantandtoddlernutrition/breastfeeding/pumping-breast- milk.html (last visited July 17, 2020), archived at https://perma.cc/43SF-C982. 10 recounted telling Sgt.

Wilson, “No matter what, it’s my fault. I couldn’t save her[,]” after the paramedics rushed I.M. to the hospital. At trial, an issue arose regarding the risks of parents sleeping in same bed with their children. The State argued that Ms. Morrison was given a “Pack ‘n Play” for I.M. and informed of the importance of having a safe sleeping environment before I.M. was discharged from the hospital, but she chose to share a bed with I.M. despite the risk.

Ms. Morrison testified that she did not use the “Pack ‘n Play” that the hospital provided to her because “critters”—mice and ants—would crawl inside, and she did not want them in the “Pack ‘n Play” with I.M.20 Regarding the sleeping arrangement, Ms. Morrison also testified that she shared a bed with her mother as a child, her mother had done the same with her grandmother, and that she had engaged in the practice with each of her other children, as did many of the other mothers she knew. According to Ms. Morrison, caregivers sleeping in the same bed with their children was prevalent in her family and community. She recalled that hospital staff briefly discussed sleep safety with her when I.M. was born, but no one detailed the risks associated with co-sleeping. The prosecution argued that her decision to sleep in the same bed with her four-month-old infant after a night of drinking was “extremely reckless” and “creat[ed] a substantial harm” to her now 20 At oral argument before this Court, the State regarded the sleeping arrangement as a distraction that was never the heart of the State’s argument regarding the recklessness of Ms. Morrison’s conduct.

But, much of the prosecutor’s argument in the proceedings below relied heavily upon whether Ms. Morrison should have been aware of dangers specific to sharing a bed with her infant, after consuming alcohol. The allegations concerning the sleeping arrangement are inextricably linked to the argument that Ms. Morrison was reckless and grossly negligent. 11 deceased child. At the close of all of the evidence, Ms. Morrison renewed her motion for judgment of acquittal, but the motion was again denied. At the conclusion of the three-day trial, the jury returned a verdict for the State, convicting Ms. Morrison of the charges of reckless endangerment, neglect of a minor, and involuntary manslaughter.

She was sentenced to a total of twenty years with all suspended—ten years for involuntary manslaughter to be served consecutive to a five-year term for reckless endangerment and a five-year term for neglect of a minor—followed by the imposition of a five-year period of supervised probation. B. Opinion of the Court of Special Appeals In noting her timely appeal to the Court of Special Appeals, Ms. Morrison argued that (1) the evidence was insufficient to support her convictions for involuntary manslaughter, reckless endangerment and neglect of a minor, and (2) any remaining convictions should merge for sentencing purposes. Morrison, 2019 WL 3992051 at ¹. The Court of Special Appeals agreed that the evidence was insufficient to support Ms. Morrison’s convictions for involuntary manslaughter and reckless endangerment, but did not conclude Ms. Morrison had preserved her argument regarding neglect of a minor.

Id. Regarding the sufficiency issue, the Court of Special Appeals held that Ms. Morrison’s conduct was insufficient to support a finding of “gross negligence,” which was required for the involuntary manslaughter conviction. Id. at ⁵. The court reasoned that Maryland appellate courts had not addressed the question of gross negligence as it pertains to the sleeping arrangement between a mother and her children.

Id. The court specifically distinguished cases from other jurisdictions, observing that “[u]nlike the defendant in State 12 v. Merrill, 269 P.3d 196 (Utah Ct. App. 2012), Ms. Morrison has never had a child die from co-sleeping, and there was no suggestion that she was aware that co-sleeping could be deadly, even if risky.” Id. The Court of Special Appeals also concluded that there was no evidence that Ms. Morrison had a history of alcoholism like the defendant in Bohannon v. State, 230 Ga. App. 829 , 498 S.E.2d 316 (Ga.

Ct. App. 1998). Id. The court observed that, “Ms. Morrison drank beer and fell deeply asleep, but there was no reason on this record for her to believe that her drinking or co-sleeping, individually or in combination, posed a deadly threat to her child.” Id. Although Ms. Morrison may have displayed poor judgment by sleeping in the same bed as I.M., following her consumption of alcohol, the court did not determine that her negligence rose to the level of “wanton and reckless disregard for human life[]” that is required to sustain a conviction for involuntary manslaughter.

Id. Regarding the reckless endangerment charge, the Court of Special Appeals held that the evidence was insufficient because in “[v]iewing the evidence in the light most favorable to the [prosecution],” the evidence could not support the conviction beyond a reasonable doubt. Id. at ⁶. According to the court, “there was no evidence either that she was intoxicated when she co-slept when her infant daughter, or that imbibing…beer posed a substantial risk to [I.M.]’s continued health.” Id.

Similar to the charge for involuntary manslaughter, the Court of Special Appeals found that the State fell short of establishing that Ms. Morrison acted with “conscious disregard[,]” or “wanton indifference” to the possibility that her actions would place I.M. in harm’s way. Id. 13 DISCUSSION I. Standard of Review The sufficiency of the evidence is viewed in the light most favorable to the prosecution. Corbin v. State, 428 Md. 488 , 514 52 A.3d 946, 961 (2012) (internal citations omitted). “[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction . . . is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Smith v. State, 415 Md. 174, 184 , 999 A.2d 986, 991 (2010) (emphasis in original). The purpose of our review is not to engage in a “review of the record that would amount to, in essence, a retrial of the case.” Titus v. State, 423 Md. 548, 557 , 32 A.3d 44 , 49–50 (2011).

As such, the appellate court does not “re-weigh” the credibility of witnesses or attempt to resolve any conflicts in the evidence. Fuentes v. State, 454 Md. 296 , 307–08, 164 A.3d 265, 272 (2017). We do, however, assess “whether the verdict was supported by sufficient evidence, direct or circumstantial, which could convince a rational trier of fact of the defendant’s guilt of the offenses charged[.]” White v. State, 363 Md. 150, 162 , 767 A.2d 855, 862 (2001) (internal citations omitted). Although circumstantial evidence alone is sufficient to support a conviction, “the inferences . . . must rest on more than mere speculation or conjecture.” Smith, 415 Md. at 185 , 999 A.2d at 992 .

Those inferences must “afford the basis for an inference of guilt beyond a reasonable doubt.” Id. (internal citations omitted). 14 II. Parties’ Contentions The State argues that the evidence was sufficient to permit a rational trier of fact to find that Ms. Morrison’s conduct amounted to gross negligence. According to the State, Ms. Morrison engaged in a practice—co-sleeping—that had been proven to be dangerous and, in addition to sharing a bed with her daughters, she drank enough alcohol to effectively “pass out.” The State contends that this alone was sufficient for a finding of gross negligence: [Her] admission that she was drunk when she lay down in bed with I.[M.], that she then fell asleep, that she did not know and could not remember what happened, that she did not wake up when the phone rang, and that [four-year old-daughter] could not wake [Ms.] Morrison by “thr[o]w[ing] stuff” at her, is the kind of evidence that this Court has recognized supports a finding on gross negligence.

The State argues that the Court of Special Appeals focused on whether Ms. Morrison was aware of the risks associated with the sleeping arrangement, instead of applying the reasonable person standard applicable to gross negligence cases. According to the State, Ms. Morrison’s “awareness” of those risks does not absolve her of wrongdoing where the standard is that of an objectively reasonable person. The State did not explicitly address the merits of the reckless endangerment charge, stating only that “[a] conviction for reckless endangerment also requires proof of the defendant’s gross negligence.” Ms. Morrison argues that the Court of Special Appeals did not err because a reasonable trier of fact could not find sufficient evidence that Ms. Morrison acted with willful or wanton disregard for human life, or recklessly engaged in behavior that was substantially likely to cause death or serious bodily harm. Comparing the case at bar to 15 Hall v. State,21 a criminal child neglect case, Ms. Morrison avers that her actions did not “objectively give rise to a high degree of risk to a child.” 448 Md. 318 , 139 A.3d 936 (2016).

In her brief, Ms. Morrison distinguished Cornell v. State, 159 Fla. 687 , 32 So.2d 610 (Fla. 1947), in which an infant was smothered to death after her grandmother became severely intoxicated, contending that the defendant’s actions in that case were far more egregious than Ms. Morrison’s. Ms. Morrison maintained that sharing a bed with her children was not inherently risky and that she was unaware that co-sleeping after drinking beer posed a high degree of risk to I.M.’s life. Additionally, Ms. Morrison asserts that “it is inconceivable that more than half of American mothers would choose to engage in behavior that posed an actual, substantial risk of death or serious injury to their children.”22 21 [Ms. Morrison] argues that Hall is instructive on the question of whether her conduct created a substantial risk of death or physical injury to I.M. In Hall, the defendant left her three-year-old-son in the care of his fourteen-year-old sister, where the son had a history of behavioral issues and leaving the house unaccompanied. Hall, 448 Md. at 321 , 139 A.3d at 938 .

After the defendant agreed with social workers that she would not leave her son under the supervision of the fourteen-year-old, she allowed the fourteen-year-old to care for her son overnight. Id. at 323 , 139 A.3d at 939 . The son subsequently left the home and was discovered in a busy intersection just after 2:00 am. Id. at 325 , 139 A.3d at 940 .

Ms. Hall was convicted of criminal child neglect. Id. at 321 , 139 A.3d at 937 ; see Crim. Law § 3-602.1. This Court reversed the Court of Special Appeals and found that the evidence presented at trial did not support such a finding.

Id. at 336–37, 139 A.3d at 947 . Criminal child neglect requires a showing of “substantial risk” of “physical harm” or “mental injury.” See Crim. Law § 3-602.1. Whereas, involuntary manslaughter and reckless endangerment require a showing that the conduct created a substantial risk of death or serious physical injury. 22 The Women’s Law Center of Maryland (“WLC”) submitted an amicus brief in support of Ms. Morrison.

In its brief, the WLC characterized the State’s position as creating a “co-sleeping while intoxicated” felony. The WLC suggests that, because criminal liability relies on the presumption that everyone knows the law, creating such a (continued . . . ) 16 III. Sufficiency of the Evidence A. The Court of Special Appeals correctly held that the evidence was insufficient to sustain the conviction for involuntary manslaughter based on gross negligence. Evidence is legally sufficient if any rational jury could find “the essential elements of the crime beyond a reasonable doubt.” State v. Coleman, 423 Md. 666, 672 , 33 A.3d 468, 471 (2011) (internal citations omitted).

As such, we begin our analysis with the essential elements of the underlying crime. Neither the parties nor the Court of Special Appeals addressed whether there was sufficient evidence of actual and legal causation, and we need not address the issue sua sponte. Therefore, our review is limited to whether any reasonable jury could have found that Ms. Morrison’s conduct was grossly negligent. 1. The Gross Negligence Involuntary Manslaughter Standard.

Common law involuntary manslaughter is generally defined as an “unintentional killing of a human being, irrespective of malice.”23 State v. Thomas, 464 Md. 133, 152 , 211 A.3d 274, 285 (2019) (citing State v. Albrecht, 336 Md. 475, 499 , 649 A.2d 336 (. . . continued) felony would require all mothers to know each and every risk associated with raising children—including co-sleeping. The Center highlights the racial, socioeconomic, and gender-based biases underlying judgments regarding co-sleeping. Finally, the WLC contends that criminal liability for co-sleeping does not advance the goals of the criminal justice system—punishment, deterrence and rehabilitation—because Ms. Morrison is a grieving mother “who needs not be convicted of a felony to punish her,” and such a conviction would neither rehabilitate her nor deter others from engaging in similar behavior. 23 In Maryland, involuntary manslaughter is a common law felony. The punishment for involuntary manslaughter is codified in Md. Code, Criminal Law Article (“Crim.

Law”) § 2-207. 17 (1994)). To sustain a conviction for involuntary manslaughter, the prosecution must prove that the killing was committed in one of three ways: “(1) by doing some unlawful act endangering life but which does not amount to a felony[;] or (2) in negligently doing some act lawful in itself[;] or (3) by the negligent omission to perform a legal duty.” Corbin, 428 Md. at 513 n.14, 52 A.3d at 961 n.14 (citing Albrecht, 336 Md. at 449 , 649 A.2d at 347 ). For the latter two variations of involuntary manslaughter, “the negligence [must] be criminally culpable.” Thomas, 464 Md. at 152 , 211 A.3d at 285 (internal citations omitted). Negligence is criminally culpable if it rises to the level of wanton and reckless conduct— i.e., gross negligence.

See Mills v. State, 13 Md. App. 196, 200 , 282 A.2d 147, 200 (1971) (“[T]he negligence [must] be criminally culpable[.]”); Albrecht, 336 Md. at 499 , 649 A.2d at 347–48 (“[W]here the charge of involuntary manslaughter is predicated upon the allegation that the defendant committed a lawful act in a negligent manner, a conviction of manslaughter will not lie on a showing of simple negligence . . . but must rather be predicated upon that degree of aggravated negligence which is termed ‘gross negligence.’” (emphasis added)). Depending on the circumstances presented, there is often a fine line of distinction between simple negligence and gross negligence. This Court has long recognized that “[t]here are degrees of negligence in the sense that some acts evidence a greater degree of carelessness and recklessness than do other acts which may still be classed as negligent.” State, Use of Abell v. W. Maryland R. Co., 63 Md. 433, 444 (1885). In Stracke v. Butler, 465 Md. 407 , 214 A.3d 561 (2019)—a civil case addressing gross negligence—we expounded on that principle, noting that “[i]ssues involving gross negligence are often 18 more troublesome than those involving malice because a fine line exists between allegations of [simple] negligence and gross negligence.” Id. at 420, 214 A.2d at 568 (citing Barbre v. Pope, 402 Md. 157, 187 , 935 A.2d 699, 717 (2007)). “Ordinary, simple negligence is ‘any conduct, except conduct recklessly disregardful of an interest of others, which falls below the standard established by law for protection of others against unreasonable risk of harm.’” Id.

Conversely, conduct which is sufficient for a finding of gross negligence must establish that the accused “had a wanton or reckless disregard for human life.” Thomas, 464 Md. at 153 , 211 A.3d at 285 . “Only conduct that is of extraordinary or outrageous character will be sufficient to imply this state of mind.” State v. Kramer, 318 Md. 576, 590 , 569 A.2d 674, 681 (1990). In Pagotto v. State, 127 Md. App. 271, 279 , 732 A.2d 920, 925 (1999), aff’d, 361 Md. 528 , 762 A.2d 97 (2000), Judge Charles E. Moylan, Jr. similarly observed the varying degrees of negligence: In a case charging involuntary manslaughter of the gross negligence variety… the State will not be permitted to take its case to the jury simply by proving a prima facie case of ordinary negligence. It must meet an additional and higher burden of production by showing such gross negligence, above and beyond mere civil[,] [simple] negligence, as to evidence “a wanton or reckless disregard for human life. . . . ” In accordance with the elements of involuntary manslaughter based on gross negligence, the trial court instructed the jury that the State had the burden of proving that Ms. Morrison “acted in a grossly negligent manner and that this grossly negligent conduct caused [I.M.’s] death.” The trial court also instructed the jury that grossly negligent means “the defendant, while aware of the risk, acted in a manner that created a high degree of risk 19 to, and showed a reckless disregard for, human life.” See Maryland Criminal Pattern Jury Instructions 4:17.9. 24 The mens rea for gross negligence is established by asking “whether the accused’s conduct, ‘under the circumstances, amounted to a disregard of the consequences which might ensue and indifference to the rights of others[.]’” Albrecht, 336 Md. at 500 , 649 A.2d at 348 (internal quotations omitted). In Mills, Judge Joseph Murphy, then Chief Judge of the Court of Special Appeals, further explained the requisite mens rea for gross negligence involuntary manslaughter: It is well settled in this State that where a charge of involuntary manslaughter is predicated on negligently doing some act lawful in itself, the negligence necessary to support a conviction must be gross or criminal, viz., such as manifests a wanton or reckless disregard of human life.

A causal connection between such gross negligence and death must exist to support a conviction, although it is not essential that the ultimate harm which resulted was foreseen or intended. 24 Maryland Criminal Pattern Jury Instruction 4:17.9 provides, in pertinent part: INVOLUNTARY MANSLAUGHTER--GROSSLY NEGLIGENT ACT The defendant is charged with the crime of involuntary manslaughter. In order to convict the defendant of involuntary manslaughter, the State must prove: (1) that the defendant acted in a grossly negligent manner; and (2) that this grossly negligent conduct caused the death of (name). “Grossly negligent” means that the defendant, while aware of the risk, acted in a manner that created a high degree of risk to, and showed a reckless disregard for, human life. [If defendant was unaware of the risk due to self-induced intoxication, that unawareness is not a defense.] 20 Mills, 13 Md. App. at 199–200, 282 A.2d at 149 (citations omitted) (emphasis added). In such cases, “[t]he act must manifest such a gross departure from what would be the conduct of an ordinarily careful and prudent person under the same circumstances so as to furnish evidence of indifference to the consequences.” Thomas, 464 Md. at 153 , 211 A.3d at 286 . Whether conduct rises to the level of gross negligence is fact-specific. “[T]here is no scientific test or quantifiable probability of death that converts ordinary negligence to criminal gross negligence.” Id. at 159 , 211 A.3d at 289 .

We have never addressed gross negligence within the context of an infant sleeping in the same bed with a parent. Until our most recent decision distinguishing criminal culpability, i.e., gross negligence, from ordinary negligence, State v. Thomas, Maryland case law had only addressed gross negligence involuntary manslaughter and the degree of negligence necessary to find a defendant criminally culpable, within the limited contexts of “automobiles, police officers, failure to perform a duty, and weapons.” 464 Md. at 154 , 211 A.2d at 286; see, e.g., Duren v. State, 203 Md. 584 , 102 A.2d 277 (1954) (finding sufficient evidence of gross negligence based on the environment in which the defendant was speeding); Johnson v. State, 213 Md. 527 , 132 A.2d 853 (1957) (finding insufficient evidence of gross negligence because the defendant was speeding in the wee hours of the morning, in a non-residential part of the city, when traffic was light); Albrecht, 336 Md. at 491–92, 649 A.2d at 343–44 (applying a “reasonable officer standard,” this Court found sufficient evidence of gross negligence in officer-involved shooting, based on expert testimony that the officer failed to follow departmental protocol and that the victim did not pose a threat when the officer leveled a shot gun at the victim); State v. Pagotto, 361 Md. 528, 533 , 762 A.2d 97, 110 (2000) 21 (finding insufficient evidence of gross negligence in officer-involved shooting because the conduct was not likely at any moment to cause death or serious physical injury); Mills, 13 Md. App. at 202 , 282 A.2d at 150 (finding that a combination of factors, including use of alcohol and inexperience with weapons, elevated the conduct from mere negligence to gross negligence). The Thomas decision expanded the circumstances in which we discussed this type of involuntary manslaughter to include the distribution of heroin, holding that there was sufficient evidence to convict the defendant of involuntary manslaughter in connection with the sale of heroin and subsequent overdose of a customer. Id. at 172, 211 A.3d at 297 .

In the Thomas case,25 the Court concluded that the evidence was sufficient to prove that Thomas exhibited a wanton and reckless disregard of a high degree of risk to human life. Id. at 160–61, 211 A.3d at 289–90. We reached this conclusion by combining “the inherent dangerousness of the act engaged in, as judged by a reasonable person … with environmental risk factors, which, together, make the particular activity more or less ‘likely at any moment to bring about harm to another.’” Id. at 159 , 211 A.3d at 289 . We reasoned that (1) the sale of heroin involved inherent safety risks because of its “propensity to harm physically, if not kill, [those] . . . ingesting it[,]” Id. at 167 , 211 A.3d at 294 , and (2) the record reflected environmental risk factors, such as the high number of heroin and other opioid related deaths in the Worcester County area, the victim’s particular vulnerability, 25 In Thomas, a twenty-three-year-old heroin addict, Colton Matrey (“Colton”), purchased four bags of heroin from his dealer, Patrick J. Thomas (“Thomas”).

Thomas, 434 Md. at 147, 211 A.3d at 282 . He later died from an overdose. Id. 22 and the dealer’s significant experience as a user and distributor of heroin. Id. at 169 , 211 A.3d at 295–96.

The analysis of environmental risk factors was supported by an expert opinion that Worcester County was “consumed with heroin overdoses, some resulting in deaths, and that these overdoses [] resulted in an acute awareness of the dangers of heroin.” Id. at 168 , 211 A.3d at 294 . Weighing the inherent dangerousness of the conduct and the environmental risk factors, this particular sale of heroin posed a “high degree of risk to human life” sufficient for a finding of gross negligence. Id. at 161 , 211 A.3d at 290 (citing Dishman v. State, 352 Md. 279, 299 , 721 A.2d 699, 708 (1998) (internal citations omitted)). We did not limit the gross negligence inquiry to inherent dangerousness and environmental factors.

In addition, “the defendant, or an ordinarily prudent person under similar circumstances, should be conscious of [the] risk [to others].” Id. at 167, 211 A.3d at 294 (citing Albrecht, 336 Md. at 500 , 649 A.2d at 336 ). We concluded that Thomas, who was a seasoned drug dealer, should have appreciated the “increased risk of the transaction.”26 Id. at 169, 211 A.3d at 295 . The facts supported the conclusion that a reasonable person under like or similar circumstances would have thought it substantially risky to sell heroin to Colton on that particular occasion, given his vulnerability and desperation for the drug. Id. at 169–70, 211 A. 3d at 295 .

Accordingly, this Court reversed 26 The night of the overdose, Colton called Thomas twenty-seven or twenty-eight times in just twenty-two minutes in an attempt to purchase the heroin. Id. He also sent several frantic text messages asking Thomas to call him before Thomas returned the call. Id.

Thomas also noted that it was “unusual” for him to meet Colton late at night, stating that previous transactions had occurred earlier in the day. Id. Additionally, Thomas was aware that Colton was a “young boy.” Id. at 163–64, 211 A.3d at 291 . 23 the Court of Special Appeals and held that there was in fact sufficient evidence of gross negligence. Id. at 180 , 211 A.3d at 302 .

In applying the formulation of involuntary manslaughter articulated in Thomas, the State argues that Ms. Morrison was grossly negligent, because of a combination of environmental risk factors and the inherent dangerousness of sharing a bed with an infant after imbibing “a lot of alcohol in a short period of time.” We disagree. The conduct at issue did not amount to a “wanton and reckless disregard for human life,” because the conduct did not exhibit a gross departure from that of an ordinary person. The conduct was not a gross departure because it was not a substantial deviation from that of an objectively reasonable person. Additionally, there was no evidence of inherent dangerousness combined with attendant environmental risk factors that would justify the conviction.

There are no facts supporting the idea that Ms. Morrison—or a reasonable person under similar circumstances—should have appreciated risks associated with co- sleeping after consuming beer. We explain. 2. The State did not demonstrate that Ms. Morrison acted with wanton and reckless disregard for human life. As stated above, the State must demonstrate a wanton and reckless disregard for human life, which rests on whether the defendant’s conduct exhibited a “gross departure” from that of an ordinary prudent person, so as to constitute an indifference to the risk to and rights of others.

Albrecht, 336 Md. at 500 , 649 A.2d at 348 ; Duren, 203 Md. at 590 , 102 A.2d at 280 . “[A] wrongdoer is guilty of gross negligence or acts wantonly and willfully only when he inflicts injury intentionally or is so utterly indifferent to the rights 24 of others that he acts as if such rights did not exist.” Barbre, 402 Md. at 187 , 935 A.2d at 717 . The wanton and reckless disregard inquiry also includes an “assessment of whether the activity is more or less ‘likely at any moment to bring harm to another.’” Thomas, 464 Md. at 159 , 211 A.3d at 289 (internal citations omitted). This is determined by “weighing the inherent dangerousness of the act and environmental risk factors,” which “must amount to a high degree of risk to human life.” Id. The defendant, or a reasonably prudent person, must also be aware of the risk and subsequently disregard it.

Ms. Morrison did not engage in conduct that was “inherently dangerous.” Id. at 169 , 211 A.3d 274 at 295 (quoting Commonwealth v. Catalina, 407 Mass. 779 , 556 N.E.2d 973 (Mass. 1990) (internal citations omitted)). In Thomas, and the cases relied upon in that decision, the underlying conduct involved was “inherently dangerous.” See id. (the sale of heroin is inherently dangerous); Duren, 203 Md. at 592 , 102 A.2d at 281 (speeding in a residential and business district was likely at any moment to bring harm to another); Albrecht, 336 Md. at 502–03, 649 A.2d at 349 (conduct during officer-involved shooting was grossly negligent); Mills, 13 Md. App. at 198 , 282 A.2d at 148 (pointing a loaded gun at another was gross negligence under the circumstances). An activity is inherently dangerous when it creates a substantial or high degree of risk to human life, such that it is “likely at any moment to bring harm to another.” Thomas, 464 Md. at 167 , 211 A.3d 293 (internal citations omitted).

To determine whether a risk is substantial, this Court considers “both the likelihood that the harm will occur and the magnitude of potential harm. . . .” Thomas, 464 Md. at 167 , 211 A.3d at 294 (citing People v. Hall, 999 P.2d 207, 218 (Colo. 25 2000)). The defendant in Thomas was an experienced drug dealer engaged in the sale of heroin. Inherent in this practice was the likelihood that the conduct could bring about death or physical harm to another. However, co-sleeping with a four-month old after consuming beer does not necessarily pose such an inherent risk of death or serious physical harm.

Although the State introduced evidence that the safest way for a baby to sleep is alone in a crib or bassinet, the State did not introduce evidence that Ms. Morrison was aware of the risks of co-sleeping, or that a reasonable person under the circumstances would have appreciated those risks. The hospital’s postpartum discharge paperwork signed by Ms. Morrison reflected the following: Make sure your baby has a safe sleep environment. This means you[r] baby should be in an approved crib or bassinet on his/her back (not the side) without any positioning devices, pillows or stuffed animals. You should also keep the crib or bassinet in your room.

These instructions do not expressly address dangers associated with the practice of co- sleeping. It is not uncommon for parents to sleep in the same bed with their infant, nor is it uncommon for a four-month-old to sleep in his or her own nursery. The “Education Record” included with the discharge paperwork also reflects that “back to sleep and SIDS prevention” and “crib safety” were discussed, but do not explicitly reference associated risks. The fact that Ms. Morrison received this information does not sustain a finding of gross negligence because it does not prove that Ms. Morrison knew of the risks and disregarded them.

This deviation from best sleeping practices does not lend itself to a finding that Ms. Morrison was grossly negligent when she shared a bed with her infant, or that Ms. Morrison acted unreasonably under the circumstances. 26 The State concedes that co-sleeping is a common practice. See Centers for Disease Control and Prevention, About 3,500 babies in the US are lost to sleep-related deaths each year, https://www.cdc.gov/media/releases/2018/p0109-sleep-related-deaths.html (citing a 2015 study of mothers conducted by the CDC, in which more than sixty percent (61.4%) of respondents reported bed-sharing with their infant) (last visited July 17, 2020), archived at https://perma.cc/6P78-3HF7. Nothing about the discharge paperwork suggests that Ms. Morrison, or any other reasonable person under similar circumstances, would have appreciated or been conscious of any risks associated with sleeping in the same bed with an infant. In fact, that co-sleeping is such a common practice among mothers, who likely received the same or similar information regarding safe sleeping practices, when discharged from the hospital, negates the argument that that Ms. Morrison, or a reasonable parent in her situation, should have appreciated the risks of co-sleeping.

The State now argues that the co-sleeping was not the primary issue. Rather, the conduct of sleeping in the same bed with her children while “intoxicated” posed a substantial risk of death or serious physical harm to I.M. The State contends that the consumption of alcohol before sleeping with her daughters was “inherently dangerous conduct” that posed a “substantial risk of injury or death.” The State directs us to Maryland cases that have “recognized that intoxication, combined with other conduct, creates a substantial risk to others” sufficient for a finding of gross negligence. However, none of those cases involve co-sleeping or other child rearing activities while “intoxicated.” For example, in Blackwell v. State, the Court of Special Appeals held that evidence of extreme intoxication before operating a motor vehicle and subsequent erratic driving 27 were sufficient to sustain a conviction for involuntary manslaughter because the defendant operated a known dangerous instrumentality while intoxicated. 34 Md. App. 547 , 369 A.2d 153 (1977). There, the State introduced evidence that the defendant had traveled to several separate locations, between 5 p.m. and 10 p.m., where he consumed five rum and Coke drinks.

Id. at 564 , 369 A.2d at 164 . Before the accident, he was seen in the parking lot stumbling and attempting to enter another vehicle before entering his own and driving off. Id. at 557 , 369 A.2d at 160 . As he drove off, he was observed swerving “back and forth” across the road.

Id. at 558 , 369 A.2d at 160–61. The defendant later struck and killed a bicyclist. Id. at 548 , 369 A.2d at 155–56. The court reversed the trial court, which found that the evidence was legally insufficient to support a conviction for manslaughter.

Id. at 570 , 369 A.2d at 167 . The court reasoned that the evidence the State presented “gave rise to an inference of insobriety[]” and the level of intoxication coupled with driving an automobile—a known “dangerous instrumentality[]”—on a public highway made his conduct criminally culpable, i.e., grossly negligent. Id. at 565 ; 557, 369 A.2d at 160 ; 164. Unlike in Blackwell, there was no indicia of extreme or serious impairment.

Id. at 557 , 369 A.2d at 160 . Co-sleeping is not an inherently dangerous activity. Even if the co- sleeping occurred subsequent to the consumption of alcohol, a substantial risk of death or bodily harm does not necessarily follow. The State asserts that “it is common knowledge that consuming enough alcohol to cause a person to pass out is inherently dangerous conduct,” but evidence of any degree of impairment was not reflected at trial.

Even in the light most favorable to the State, the evidence does not demonstrate that Ms. Morrison “drank to the point of passing out” and “her subsequent conduct of getting into bed with 28 her infant” would not have led a reasonable juror to find that this conduct amounted to a “wanton or reckless disregard for human life.” Mills, 13 Md. App. at 200 , 282 A.2d at 149 . Ms. Morrison testified that she was an infrequent drinker and had consumed four cups of beer over a period of two and a half to four hours. After consuming her last cup of beer, she waited outside for a while. Then, she took the trash out, locked the doors, changed I.M.’s diaper, “pumped,” turned off the movie her four-year-old had fallen asleep watching, changed the channel to PBS, and went to sleep.

These activities were consistent with their nightly routine. The social worker and officers who interacted with Ms. Morrison also testified that Ms. Morrison did not appear intoxicated, noting that she was not staggering or slurring her speech, and she did not smell of alcohol. The State maintains that Ms. Morrison admitted to being “drunk,” but this evidence does not “give rise to an inference of insobriety” or impairment. Blackwell, 34 Md. App. at 557 , 369 A.2d at 160 .

Assuming, arguendo, that Ms. Morrison drank enough beer to “pass out,” there were no facts reflecting that Ms. Morrison knew that socially drinking at her own residence would create a substantial risk of harm to her children. None of the cases cited by the State compel us to reach such a conclusion. Not all activity which is likely to bring about harm is sufficient to support a finding of gross negligence. See Thomas, 464 Md. at 169 , 211 A.3d at 295 (“distribution [of heroin] alone[] does not always amount to gross negligence”).

Thomas instructs that we consider attendant environmental factors—the surrounding circumstances—in a given case to determine whether the conduct amounts to a wanton and reckless disregard for human life. There, the Court relied on the proffered expert testimony of a controlled dangerous 29 substance (“CDS”) investigator to differentiate between the sale of heroin generally and the sale in Thomas. Id. at 168 , 211 A.3d at 294 . Had the case proceeded to trial,27 the CDS expert would have testified that Worcester County had been “consumed” by heroin overdoses and that, given prevalence of heroin-related deaths, “everyone kn[ew]” “the dangers of heroin.” Id. at 147 , 211 A.3d at 282 .

The Court also examined Maryland- specific data reflecting that the number of heroin overdoses and deaths rose significantly between 2011 and 2015—the year Colton overdosed. See id. at 168 , 211 A.3d at 294 (“[The] proffered testimony [of the expert] [was] consistent with data collected by the State of Maryland’s Department of Health and Mental Hygiene regarding fatal overdoes from heroin and other opioids.”). The Court considered those attendant factors to elevate the conduct from ordinary to gross negligence. In Mills, the Court of Special Appeals similarly assessed the surrounding circumstances or environmental factors.

In that case, a sixteen-year-old brought his father’s gun to a school dance, where he jokingly aimed the gun at the friend. Mills, 13 Md. App. at 198 , 282 A.2d at 148 . The friend slapped the gun from his hand and it discharged, striking and killing another boy. Id. at 198–99, 282 A.2d at 148 .

The “additional facts that the individual had little experience with weapons, was drinking, and pointed it jokingly at another surmount the gross negligence bar.” Thomas, 464 Md. at 27 The parties submitted an agreed upon statement of facts. Accordingly, “there was no ‘trial’. . . in the traditional sense. . . . So, like the trial court, [this Court] accept[ed] the parties’ agreed ‘ultimate facts’ and ‘simply appl[ied] the law to the facts agreed upon[.]’” Thomas, 464 Md. at 151–52, 211 A.3d at 284–85 (internal citations omitted). 30 159, 211 A.3d at 289 . Unlike Mills and Thomas, the surrounding circumstances do not raise the conduct to gross negligence.

The State did not introduce expert testimony regarding the frequency of co-sleeping deaths, or that the risk of rolling over on an infant while co-sleeping is elevated when a caregiver engages in social drinking before co- sleeping. Additionally, the evidence reflects that Ms. Morrison was the mother of seven children—who routinely shared a bed with her small children. Under the standard articulated in Thomas, the evidence did not support a finding of gross negligence. We now turn to cases from other jurisdictions where gross negligence was addressed within the context of sleep-related child deaths.

The State relies on Cornell v. State, a Florida Supreme Court case, which held that the evidence of intoxication was sufficient to support a manslaughter conviction, in support of the argument that a reasonable person would have appreciated that sleeping with an infant after consuming a lot of alcohol in a short period would create a substantial risk of death or serious physical injury to her children. Cornell, 159 Fla. at 691 , 32 So.2d at 612 . The State’s reliance on Cornell is misplaced. In Cornell, the evidence demonstrated that Emily Cornell took her two-and-a-half-month-old grandchild to a bar where she became “so intoxicated that she did not remember leaving the bar, arriving [home], or going to bed with the infant child beside her.” Id. at 690 , 32 So.2d at 612 .

Cornell and the child’s mother arrived at the Grand Oregon Bar around eleven or twelve o’clock at night. Before entering the bar, they drank from a whiskey bottle. Id. at 688 , 32 So. 2d at 611 . “There was testimony that approximately three hours prior to [their arrival at the bar], each of the parties [had] been seen taking at least one drink, but it was not shown that they had 31 become intoxicated as a result.” Id. While at the bar, Cornell consumed two to three more drinks.

Her daughter left the infant in Cornell’s care around 2 or 2:30 a.m., while she continued to celebrate with friends. Id. Roughly sixteen hours later, the mother returned to her trailer to find the deceased infant in the bed next to Cornell. Id. at 688–99, 32 So.2d at 611 .

Several neighbors testified that they heard the child screaming loudly around 6:30 a.m. and that the loud screams continued until 9:30 or 10 a.m. before subsiding. Id. at 689 , 32 So.2d at 611 . One witness described the cries: “He cried like he was losing his breath, then he would start again; just like they put their hand over his mouth.” Id. The jury convicted Cornell and her daughter of manslaughter.

Id. at 689 , 32 So.2d at 611 . The Florida Supreme Court upheld Cornell’s manslaughter conviction but reversed her daughter’s conviction. Id. at 691 , 32 So.2d at 612 . It reasoned that Cornell “recklessly and willfully [] [drank] herself into such a drunken stupor that not only did she render herself totally incapable of looking after the infant but actually became wholly oblivious to the fact that she had [the infant] in her possession at all.” Id. at 690 , 32 So.2d at 612 .

The court further reasoned that the evidence reflected that Cornell returned to her mobile home and climbed into bed with the infant in tow. Id. at 690 , 32 So.2d at 612 . She then “covered the body and face of the child with bed covers,” and as a result the child suffocated to death. Id. at 688 , 32 So.2d at 611 .

The child screamed for at least three consecutive hours, during which time Cornell was sound asleep. Id. at 689 , 32 So.2d at 611 . Tellingly, the infant shrieked so loud that her screams were heard by neighbors. Id.

The court determined that it would have been reasonable for a jury to conclude that her conduct rose to the level of gross negligence. Id. at 690–91, 32 So.2d at 612 . 32 This case is distinguishable from Cornell. There was no indicia of intoxication or impairment that would lead a rational trier of fact to believe that Ms. Morrison drank in excess on the night I.M. died. The four-year old, who was the only witness to Ms. Morrison rolling over on I.M., testified that she “threw stuff” at her mother and yelled for her to wake up.

However, this alone does not support a finding of intoxication or impairment. A blood sample taken from Ms. Morrison was never tested. There was no testimony that Ms. Morrison exhibited the signs of impairment, such as slurred speech, watery, dilated pupils, or the odor of alcohol on her breath or person.28 There was also no testimony that Ms. Morrison could not remember when or how she got into bed with her children. She admitted that she shared a bed with her infant and four-year-old, as she had done in the past with her five older children when they were young.

Ms. Morrison also engaged in normal, routine behavior before actively going to bed. The record reflects that Ms. Morrison prepared her children for bed and went to sleep with them. When interviewed by the detective, Ms. Morrison remembered preparing for bed and going to sleep. In contrast, the defendant in Cornell was so intoxicated that she had no memory of leaving the bar and no memory of getting into bed with the infant.

Id. at 690 , 32 So.2d at 612 . In addition, she slept through the infant’s incessant screams, which were heard by neighbors for hours. Id. at 689 , 32 So.2d at 611 . There was no evidence in 28 Although Sgt.

Wilson testified that Ms. Morrison responded initially that “she got drunk and killed [her] baby[,]” he also did not recall any behavior or conduct on the part of Ms. Morrison that was consistent with someone who was