This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A14-1371

State of Minnesota,

Respondent,

vs.

Jennifer Rae Flint,

Appellant

Filed July 20, 2015

Reversed

Rodenberg, Judge

Polk County District Court

File No. 60-CR-13-1843

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney, 

Crookston, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. Withall, Assistant Public 

Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Rodenberg, Judge; and 

Reyes, Judge. 
2

U N P U B L I S H E D O P I N I O N

RODENBERG, Judge

Appellant challenges her conviction for child neglect, arguing that there was 

insufficient evidence to demonstrate that harm to her two young children was more likely 

to occur than not when she left the children home alone. We reverse.

FACTS

On August 30, 2013, appellant Jennifer Flint’s neighbor called 911 to report that 

he suspected that appellant’s two minor children were home alone. Appellant’s older 

child, T.F., was seven years old and her younger child, E.M., was four years old. 

Responding Officer Alexander Scott Schilke of the East Grand Forks Police Department 

arrived at the apartment at 11:12 p.m. to do a welfare check. He knocked on appellant’s 

apartment door for two or three minutes. No one opened the door, but Officer Schilke 

could hear the sound of a television through the door. One of appellant’s neighbors came 

out of her apartment while Officer Schilke was knocking. She told Officer Schilke that 

appellant lived in the apartment, that appellant had two young sons, and that she thought 

appellant had gone to a nearby bowling alley. Officer Schilke then radioed his sergeant, 

Michael Anderson, asking him to go to the bowling alley to determine if appellant was 

there. 

Officer Schilke continued to knock on appellant’s apartment door for five to eight 

additional minutes. Because appellant’s apartment was on the ground floor, Officer 

Schilke then went outside and looked through the exterior sliding-glass door into 

appellant’s apartment. He observed that the television was turned off and that the 
3

bedroom lights that he had earlier observed to be off were now lit. He saw “a young boy 

peek through the blinds of the bedroom window and then turn the light off in the 

bedroom.” Officer Schilke returned to the interior hallway door to the apartment and 

stated “[T.F.], you’re not in trouble come talk to me.” T.F. then opened the apartment 

door. 

T.F and E.M. had been alone in the apartment. Officer Schilke asked T.F. some 

questions, including where T.F.’s mother went and whether she leaves him at home often. 

T.F. responded that his mother had left to get pizza and that she sometimes leaves to go 

tanning. 

During this same time, Sergeant Anderson went to the bowling alley as requested. 

There he found appellant seated at the bar with “an alcoholic beverage in front of her and 

a stack of pull tabs.” When Sergeant Anderson approached appellant and asked her if she 

had left her children at home, she nodded, became upset, and began crying. Sergeant

Anderson testified that appellant “appeared intoxicated.” He “ordered her to return home 

immediately.” He left in his squad car and appellant rode her bicycle home. Sergeant 

Anderson testified that he did not ask appellant why she was at the bowling alley or what 

she was doing there. When Sergeant Anderson reached appellant’s apartment, appellant 

had already arrived and was speaking to Officer Schilke. 

Sergeant Anderson then asked T.F. whether he knew what to do if there was a fire 

(T.F. stated that he did not), if there was anyone in the building to whom he could go if 

there was a problem (T.F. stated that he did not know anyone in the building), and if he 
4

knew how to call 911 (T.F. stated that he did, but said that the pre-paid phone in the 

apartment had no minutes on it). 

Appellant was neither arrested nor issued any charges on August 30. A child 

protection worker visited appellant’s home six days later. She identified no safety 

concerns and observed the apartment to be clean and without apparent health or safety 

hazards. On September 13, 2013, appellant was charged with two gross-misdemeanor 

counts of child endangerment in violation of Minn. Stat. § 609.378, subd. 1(a)(1) (2012),

for the incident on August 30, one count for each child. Appellant moved to dismiss for 

lack of probable cause, and the district court denied this motion. Appellant waived her 

right to a jury trial and the case was tried to the district court.

T.F. testified at trial that he was in charge of his younger brother on August 30 

when his mother left to get pizza. T.F. testified that he was scared when Officer Schilke 

was knocking on the door, but that he did not consider calling 911. He testified that 

appellant had “just gone out for a minute.”1 He testified that he told Officer Anderson 

that he did not know what to do if there was a fire, that he did not know anyone in the 

building, and that he knew how to call 911, but that the pre-paid phone did not have any 

minutes left. On cross-examination, T.F. testified that he did have friends in the building 

at the time of the incident, but he did not say that to the police because he was scared and 

nervous. He also testified that if there was a fire, or if his younger brother would have 

been injured, he would have called 911.

 

1 As with much of T.F.’s testimony, he responded affirmatively to a leading question.
5

The state elicited trial testimony concerning potential hazards in the area 

surrounding the apartment. Specifically, Officer Schilke testified that there was an 

outdoor pool on the apartment’s property, a highway nine blocks away (“the busiest road 

in East Grand Forks”), a “busier street” five blocks away, a hotel that places “numerous” 

calls to police for “drug charges, domestic charges” six or seven blocks away, and a 

trailer court that is “another high drug area of town” located “across the street.” 

The state asked Sergeant Anderson at trial whether, in the absence of adult 

supervision of these children, life-threatening injury was “likely to happen.” Sergeant 

Anderson responded “I don’t know if it’s likely. I think that’s the wrong word to use. It 

certainly can happen and I wouldn’t want to see that happen.”

The state also called as a witness at trial the neighbor who had called 911 on the 

night of the incident. He observed appellant entering the bowling alley and noticed that 

the truck owned by appellant’s younger son’s father was not parked in the apartment 

complex lot, as it usually is when appellant is not at the apartment. The neighbor testified 

that he was concerned because he saw “what happened with [his] ex-wife and other 

people [he] know[s] with young kids,” explaining that his ex-wife had left their children 

home alone and that he had called child protection concerning that incident. He also 

testified that he saw “random kids sit [outside in a trailer court] with no supervision and 

[did not] think it’s right that young kids are out there without supervision.” 

The child protection social worker who met with appellant following the incident

testified as a defense witness at trial. She testified that she visited appellant’s home on 

September 5, 2013, and that she did not see any safety concerns. She testified that the 
6

house was well maintained, that the floors were clean and free from clutter, and that she 

did not see “any health hazards, anything like that.” She also testified that she consults 

Minnesota guidelines for screening reports to assess whether children are old enough to 

be left home alone. She testified that when a child is seven years old or younger, she 

would “make a report on that,” but also testified that T.F., who was eight years old at 

trial, “would . . . [be] capable [of staying home alone now] with the maturity level [she 

saw], however if [T.F.] had done some safety planning with mom [she would] be more 

comfortable with that.” She also testified that Minnesota guidelines recommend that a 

child should be 11 years old to watch another child. 

The district court found appellant guilty on both counts. In its findings of fact and 

conclusions of law, the district court stated that appellant “willfully deprived [her 

children] of necessary supervision appropriate to each respective child’s age” and that 

“such neglect was more likely than not to cause substantial harm to both” children. The 

district court concluded that “whatever mishaps were to occur with her young fragile 

children would rapidly progress to substantially harmful mishaps.” The district court 

discussed the “hazards in the nearby neighborhood” and stated that, absent supervision,

“there was no guarantee these two boys would remain in the apartment.” It added:

The Court further finds that failure to [find appellant guilty]

would send a message from this district court that it is not 

necessary for any parent, guardian, relative or other caregiver 

to supervise children of this age under these circumstances 

and further, that children of this age may be left unattended; 

the Court is unwilling to convey that message to [appellant] 

and/or the public.
7

The district court sentenced appellant to two 60-day jail terms to be served 

consecutively, stayed for one year, and placed appellant on supervised probation. This 

appeal followed.

D E C I S I O N

When reviewing sufficiency of the evidence, we thoroughly review the record to 

determine whether the evidence establishes guilt beyond a reasonable doubt. See State v. 

Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010) (stating that the appellate court reviews 

the facts and the legitimate inferences drawn therefrom to decide whether the evidence 

supports the guilty verdict). We view facts in the light most favorable to the conviction

and assume the district court “believed the state’s witnesses and disbelieved any evidence 

to the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). A conviction may 

be reversed if we conclude that the fact-finder acted without due regard for the 

presumption of innocence and the necessity of overcoming that presumption by proof 

beyond a reasonable doubt.2State v. Combs, 292 Minn. 317, 320, 195 N.W.2d 176, 178 

(1972); see State v. Mytych, 292 Minn. 248, 251-52, 194 N.W.2d 276, 279 (1972) (“[We] 

 

2 We observe that the evidence presented at trial was direct evidence. Despite the parties’ 

briefing and arguments concerning the heightened circumstantial-evidence standard of 

review, we do not apply that standard. See State v. Hokanson, 821 N.W.2d 340, 353 n.1 

(Minn. 2012) (“Direct evidence is that which proves a fact without an inference or 

presumption and which in itself, if true, establishes that fact.” (Quotation omitted)); State 

v. Silvernail, 831 N.W.2d 594, 604 (Minn. 2013) (Stras, J., concurring in part) (defining 

circumstantial evidence as “evidence based on inference and not on personal knowledge 

or observation [and that b]y definition, the fact-finder must make an inference from . . . in 

order to find the ultimate fact . . . asserted by the proponent of the evidence” (quotation 

and citation omitted)). All five witnesses at trial testified to what they saw, heard, or 

experienced.
8

appl[y] the same standard to cases heard before the court . . . as to those heard by a 

jury.”). 

To convict appellant of child endangerment, the state must prove both that 

appellant willfully deprived her children of supervision and that the deprivation was 

“likely to substantially harm the child[ren]’s physical, mental, or emotional health.” 

Minn. Stat. § 609.378, subd. 1(a)(1). Appellant concedes that she deprived her children 

of supervision and challenges only the second element of the charged offense. She 

maintains that the evidence at trial failed to prove beyond reasonable doubt that T.F. and 

E.M. were likely to be substantially harmed due to the lack of supervision.

Interpreting statutory language presents a question of law that we review de novo. 

State v. Perry, 725 N.W.2d 761, 764 (Minn. App. 2007), review denied (Minn. Mar. 20, 

2007). In State v. Tice, 686 N.W.2d 351, 352, 355 (Minn. App. 2004), review denied

(Minn. Nov. 16, 2004), we adopted the district court’s conclusion that the childendangerment statute’s requirement that the neglect or endangerment be “likely to 

substantially harm” a child requires proof that “harm would more likely than not result 

from the conduct.” 

In Tice, the state appealed the district court’s grant of respondents’ motion to 

dismiss for lack of probable cause. 686 N.W.2d at 352. Respondents, parents of three 

children (two of them six, and the other eight months), locked their three children in a 

parked vehicle in a retail-store parking lot in March when it was seven degrees outside. 

Id. The parents went into a retail store. Id. The parents left the vehicle’s engine running 

and the heater on, and the children were “appropriately dressed for the weather and they 
9

did not appear upset” when approached by police. Id. The parents left the vehicle for 

approximately 40 minutes, stating they left the children in the vehicle “because the 

youngest child was sleeping, and [the parents] anticipated being in the store for only a 

brief time . . . [and they] had admonished the children to stay in the car and not to let 

anyone into the car.” Id. 

We affirmed the district court’s dismissal of the endangerment charges in Tice, 

concluding that “likely to substantially harm” under Minn. Stat. § 609.378, subd. 1(a)(1),

must be construed in the context of the potential consequences that may result from a 

defendant’s “acts or omissions.” Id. at 354. In recognizing that we strictly construe 

statutes, we concluded that the statute criminalizes negligence. Id. at 354-55. Because 

ordinary negligence is presumed insufficient to constitute a crime, “likely” must require 

“more than a simple deviation from the standard of care.” Id. at 355. We explained that 

“[t]he risk of harm must be greater than being merely within the realm of any conceivable 

possibility.” Id. (quotation omitted); see also State v. Grover, 437 N.W.2d 60, 63 (Minn. 

1989) (stating that “absent a clear legislative declaration . . . we will interpret any 

criminal negligence statute as requiring a showing that the actor’s conduct involved a 

gross deviation from the standard of care that a reasonable person would observe in the 

actor’s situation” (quotation omitted)). We concluded that “while respondents’ conduct 

may have been ill-advised, a clear legislative intent appears to criminalize only conduct 

that is more than ordinary civil negligence.” Tice, 686 N.W.2d at 355.

We review the district court’s guilty verdicts in the light most favorable to the 

verdicts. See Webb, 440 N.W.2d at 430. The facts are not materially disputed on appeal. 
10

The state did not prove that there were poisons, cleaners, candles, matches, or other 

potentially hazardous materials found in the home the night of the incident. The social 

worker also observed no such hazards when she visited appellant’s home six days after 

the incident. Correspondingly, appellant does not dispute that there was a swimming 

pool on the apartment’s property, that there were busy streets and highways nearby, and 

that there were other risks to the children being left alone at night. She also makes no 

claim on appeal that the district court clearly erred finding that “there was no guarantee 

that these two boys would remain in the apartment.”

But Tice requires that a conviction for child endangerment must be supported by 

evidence demonstrating that substantial harm to the children would more likely than not 

result from the parental failure, not merely that substantial harm could occur. Stated 

differently, the state must prove at least a 51% chance that substantial harm would occur 

to sufficiently support guilty verdicts. See Dickhoff by Dickhoff v. Green, 836 N.W.2d 

321, 333 (Minn. 2013) (explaining that, as a matter of law, an action against a doctor can 

stand only if “the alleged faulty diagnosis [was] more likely than not . . . the cause of the 

patient’s injury” and that this could be proved only if the patient’s odds of survival before 

the diagnosis was higher than 50 percent). 

Sergeant Anderson, who observed the situation and spoke with T.F., testified that 

“likely” was the wrong word to use to describe the probability of harm to these children, 

instead replying that substantial harm “certainly can happen.” But proof that harm to 

children “can happen” does not meet the legal standard required to establish criminal 

child neglect and endangerment.
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We think it important to observe that law enforcement and child protection 

performed exemplary work here. Law enforcement officers investigated and 

appropriately handled the citizen report. They properly focused their attention on the 

safety of these children, referred the incident to child protection social workers, and

determined that the children did not need to be removed from their home and that 

appellant need not be arrested. The responding social worker properly assessed the home 

and found it clean and safe. In concluding that the evidence here is insufficient to sustain 

the district court’s verdicts of guilty, we express no disapproval of the actions taken by 

law enforcement or child protection involved in this case. These professionals did their 

jobs and did them well.

Because Tice requires that a conviction for child neglect or endangerment be 

supported by evidence demonstrating that substantial harm is more likely to occur than 

not, and the evidence proved at trial does not meet this threshold, we reverse the district 

court’s determination and conclude that the evidence at trial failed to prove that 

appellant’s lack of supervision of her children was likely to cause substantial harm to 

them.

Reversed.