State of New Hampshire v. Mary Ellen Burritt

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0077, State of New Hampshire v. Mary
Ellen Burritt, the court on January 27, 2017, issued the
following order:

Having considered the briefs and record submitted on appeal, we conclude
that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). We affirm.

The defendant, Mary Ellen Burritt, appeals her conviction, following a jury
trial in Superior Court (Bornstein, J.), on a charge of reckless conduct, see RSA
631:3 (2016). She contends that the trial court erred by: (1) not dismissing the
charging document on the basis that it was insufficiently definite; (2) declining to
set aside the verdict due to insufficient evidence; and (3) admitting evidence of
the death of a child in her care.

We first address whether the charging document was sufficiently definite.
A complaint or indictment is constitutionally sufficient if it informs a defendant of
the charge with enough specificity to allow the defendant to prepare for trial and
be protected against double jeopardy. State v. Therrien, 129 N.H. 765, 770
(1987). These twin standards are satisfied by a written charge that alleges all the
elements of an offense that is identified by pleaded facts. Id. Thus, the
requirement to identify a specific offense determines the State’s obligation to
plead specific acts and facts, and once a specific offense is identified, there is no
further and independent requirement to identify all acts by which a defendant
may have committed that offense, or to limit proof of guilt to the acts specifically
pleaded. Id. The sufficiency of a charge is determined not by inquiring whether
the charge could be more certain and comprehensive, but whether it contains the
elements of the offense and enough facts to warn the accused of the specific
charges against him or her. State v. MacElman, 154 N.H. 304, 313 (2006).

In this case, the defendant was charged by an information identifying all
the statutory elements of reckless conduct and specifically averring that she
allowed “four children under the age of five to be outside, in an unfenced area,
with no child care personnel present.” The defendant contends that the
information did not warn her that she “wasn’t present because she wasn’t
outside” and that she was surprised when the State argued this in its opening.
She further argues that the information “failed to inform [her] of the substantial
and unjustifiable risks of harm [she] should have been aware of when four
children were allowed to go outside in an unfenced area.”
 However, the basic facts were not in dispute. The State and the defendant
knew that she was inside the house while the children were outside playing in
the snow. No one asserted that the defendant was off-site. We conclude that the
allegation that she was not “present” when the children were outside adequately
described the specific offense and that the State was not required to identify
additional facts supporting the alleged offense. See Therrien, 129 N.H. at 770.

The defendant asserts that, in preparing a defense, “she was clearly and
properly focused on [the child’s] death.” She argues that “[i]f this case was about
more than [the child’s] death then prior notice should have been given.”
However, the defendant also acknowledges that “[s]he was not charged with
causing [the child’s] death.”

To the extent that the defendant argues that the State was “obligated to
make [its] theory [of the case] clear to [her],” she does not cite, nor are we aware
of, any authority establishing this requirement. We note that nothing prevented
the defendant from seeking a bill of particulars. We conclude that the trial court
did not err in denying the defendant’s motion to dismiss on the basis that the
information was insufficiently definite. See id.

We next address whether the evidence was sufficient to support the jury’s
verdict. A challenge to the sufficiency of the evidence raises a claim of legal error;
therefore, our standard of review is de novo. State v. Boutin, 168 N.H. 623, 627
(2016). In reviewing a sufficiency of the evidence claim, we view the evidence
presented at trial, and all reasonable inferences drawn therefrom, in the light
most favorable to the State and uphold the jury’s verdict unless no rational trier
of fact could have found guilt beyond a reasonable doubt. Id.

Under RSA 631:3, I, “[a] person is guilty of reckless conduct if he [or she]
recklessly engages in conduct which places or may place another in danger of
serious bodily injury.” To prove that the defendant acted in a reckless manner,
the State had to show that she was aware of, but consciously disregarded, a
substantial, unjustifiable risk that serious bodily injury would result from her
conduct. State v. Hull, 149 N.H. 706, 713 (2003); RSA 626:2, II(c) (2016). In
addition, the State had to show that the defendant’s disregard for the risk of
injury to another was a gross deviation from the regard that would be given by a
law-abiding citizen. Hull, 149 N.H. at 713; RSA 626:2, II(c). Whether the
defendant acted recklessly does not depend upon whether she anticipated the
precise risk or injury that resulted. Hull, 149 N.H. at 713.

In this case, the evidence at trial established that the defendant, an
experienced daycare provider, allowed four children, ages two, three, and four, to
play outside in three feet of snow and approximately 20 degree temperatures at a
distance of 85 to 91 feet from a house in which she was feeding an infant and
cooking. The defendant argues that she was adequately supervising the children
from inside the house by watching them through a large open window. An officer

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testified, however, that shortly after the child’s accident, the defendant stated, “I
don’t have very good long distance vision. I had only put my one contact in
today.” The officer further testified that the defendant “indicated that she would
look out about every two minutes, at the children.”

The defendant told the officer that she had directed the children to move to
a different part of the yard because “the UPS guy” might not see them. Upon
being asked whether a certain rocky part of the yard was dangerous, the
defendant testified that the children were not allowed to play in that area.

The chief of the New Hampshire Department of Health and Human
Services (HHS) Child Care Licensing Unit testified that: (1) all daycare facilities
with three or more children are required to be licensed; (2) the defendant’s
daycare had been licensed, but the defendant had allowed her license to expire;
(3) when the defendant’s daycare was licensed, she would have received a copy of
the department’s regulations; and (4) those regulations are available to the public
on-line. She further testified that those regulations require childcare personnel
to be outside when children under the age of six are outside.

The defendant argues that she “was unaware of any risks connected with
the children playing outside.” She contends that she “had many rules in order to
mitigate against perceived risks.” However, a reasonable jury could have found
that, as an experienced daycare provider, who had previously been provided with
the regulations governing licensed childcare facilities, she was aware of the risks
associated with young children playing outside in snow and cold weather without
an adult outside with them. To the extent that the defendant argues that the
State was required to provide expert testimony regarding the existence of an
unjustifiable risk, she does not identify where she raised this in the trial court,
see Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004), and her argument
is undeveloped, see State v. Blackmer, 149 N.H. 47, 49 (2003).

The defendant argues that she “was properly supervising the children
because she could see and/or hear the children at all times and was able to
respond to them immediately if there were any issues that arose from the
children being outside” and that she was properly supervising the children, albeit
from within the house. However, a reasonable jury could have found that: (1)
she could not adequately supervise the children from inside the house because
she looked out the window only every two minutes and the child was fatally
injured after “a matter of minutes,” according to the medical examiner; (2) she
could not see the children well, given her poor vision and their distance from the
house; and (3) she could not respond “immediately” because she had to secure
the infant she was feeding, put on her boots and coat, and make her way 85 or
more feet from the house to the children.

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 The defendant argues that her actions met the definition of “supervising” in
the HHS regulations and, thus, that she was “present.” However, the jury was
not compelled to reach this conclusion.

The defendant argues that the child exhibited no signs of distress and,
thus, that she was not at fault for failing to notice the child’s injury sooner.
However, this was not part of the State’s burden. See Hull, 149 N.H. at 713. The
defendant argues that the risk of the precise injury that the child sustained “was
negligible if there was any risk at all.” However, whether the defendant acted
recklessly does not depend upon whether she anticipated the precise risk or
injury that resulted. See id.

The defendant distinguishes her situation from that in State v. Botelho, 165 N.H. 751 (2013), in which the mother did not watch the two young children
she left unattended in a bathtub for an extended period of time. See Botelho,
165 N.H. at 758. However, nothing in that case limits the application of RSA
631:3 to the facts of that case. We note that in Botelho, in addition to reckless
conduct, the mother was also convicted of manslaughter, see RSA 630:2, I(b)
(2016), and negligent homicide, see RSA 630:3, I (2016), see Botelho, 165 N.H. at
752, charges that were not brought against the defendant here.

Accordingly, we conclude that, viewing the facts in the light most favorable
to the State, a rational fact-finder could have found the defendant guilty of
reckless conduct beyond a reasonable doubt. See Boutin, 168 N.H. at 627.

Finally, we address whether the trial court erred in admitting evidence that
the child died and the cause of the child’s death. The defendant devotes a single
paragraph in her brief to this argument and does not include a single citation to
the record or to legal authority. Accordingly, we conclude that this argument is
not sufficiently developed. See Blackmer, 149 N.H. at 49.

To the extent that the defendant’s brief raises additional arguments, they
are either not sufficiently developed, see id., or otherwise do not warrant further
discussion, see Vogel v. Vogel, 137 N.H. 321, 322 (1993).

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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