Knowledge, Recklessness & Mistake - State v. Nations

Missouri Court of Appeals

State v. Nations

676 S.W.2d 282

No. 45349

1984-08-28

SATZ, Judge.

Defendant, Sandra Nations, owns and operates the Main Street Disco, in which police officers found a scantily clad sixteen year old girl “dancing” for “tips”. Consequently, defendant was charged with endangering the welfare of a child “less than seventeen years old,” § 568.050 RSMo 1978.¹ Defendant was convicted and fined $1,000.00. Defendant appeals. We reverse. . .

Specifically, defendant argues the state failed to show she knew the child was under seventeen and, therefore, failed to show she had the requisite intent to endanger the welfare of a child “less than seventeen years old.” We agree.

The pertinent part of § 568.050 provides:

“1. A person commits the crime of endangering the welfare of a child if:

(2) He knowingly encourages, aids or causes a child less than seventeen years old to engage in any conduct which causes or tends to cause the child to come within the provisions of subdivision (l)(c) .. of section 211.031, RSMo ....”

• 568.050 requires the state to prove the defendant “knowingly” encouraged a child “less than seventeen years old” to engage in conduct tending to injure the child’s welfare, and “knowing” the child to be less than seventeen is a material element of the crime. See § 562.021.

“Knowingly” is a term of art, whose meaning is limited to the definition given to it by our present Criminal Code. Literally read, the Code defines “knowingly” as actual knowledge — “A person ‘acts knowingly’, or with knowledge, (1) with respect ... to attendant circumstances when he is aware ... that those circumstances exist _” (Emphasis original). § 562.016.3.⁴ So read, this definition of “knowingly” or “knowledge” excludes those cases in which “the fact [in issue] would have been known had not the person wilfully ‘shut his eyes’ in order to avoid knowing.” Perkins, Criminal Law 942 (2d ed. 1969). The Model Penal Code, the source of our Criminal Code, does not ex-elude these cases from its definition of “knowingly”. Instead, the Model Penal Code proposes that “[w]hen knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence_” (Emphasis added). Model Penal Code § 2.02(7) (Proposed Official Draft 1962). This definition sounds more like a restatement of the definition of “recklessly” than “knowingly”.⁵ The similarity is intentional. The Model Penal Code simply proposes that wilful blindness to a fact “be viewed as one of acting knowingly when what is involved is a matter of existing fact, but not when what is involved is the result of the defendant’s conduct, necessarily a matter of the future at the time of acting.” ⁶ Thus, as noted, the Model Penal Code proposes that “[w]hen knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence Model Penal Code § 2.02(7) (Proposed Official Draft 1962).

Our legislature, however, did not enact this proposed definition of “knowingly”. Although the definitions of “knowingly” and “recklessly” in our Criminal Code are almost identical to the primary definitions of these terms as proposed in the Model Penal Code, see Model Penal Code § 2.02(2)(b)-(c) (Proposed Official Draft 1962), the Model Penal Code’s proposed expanded definition of “knowingly”, encompassing wilful blindness of a fact, is absent from our Criminal Code. The sensible, if not compelling, inference is that our legislature rejected the expansion of the definition of “knowingly” to include wilful blindness of a fact and chose to limit the definition of “knowingly” to actual knowledge of the fact.⁷ Thus, in the instant case, the state’s burden was to show defendant actually was aware the child was under seventeen, a heavier burden than showing there was a “high probability” that defendant was aware the child was under seventeen. In short, the state’s burden was to prove defendant acted “knowingly”, not just “recklessly”. The state proved, however, that defendant acted “recklessly”, not “knowingly”. This we conclude from our review of the record. . .

The record shows that, at the time of the incident, the child was sixteen years old. When the police arrived, the child was “dancing” on stage for “tips” with another female. The police watched her dance for some five to seven minutes before approaching defendant in the service area of the bar. Believing that one of the girls appeared to be “young,” the police questioned defendant about the child’s age. Defendant told them that both girls were of legal age and that she had checked the girls’ identification when she hired them. When the police questioned the child, she initially stated that she was eighteen but later admitted that she was only sixteen. She had no identification. . .

These facts simply show defendant was untruthful. Defendant could not have checked the child’s identification, because the child had no identification with her that day, the first day defendant “hired” the child. This does not prove that defendant knew the child was less than seventeen years old. At best, it proves defendant did not know or refused to learn the✎ child’s age. The latter is the best case for the state. But defendant’s refusal to learn the age of this “young” child who was “dancing” “scantily clad” in her disco bar simply proves that defendant was “aware of a high probability” that the child was under seventeen, or, stated otherwise, in the definitional language of our Criminal Code, proves that defendant was conscious of “a substantial and unjustifiable risk” that the child was under seventeen and that defendant’s disregard of the risk was a “gross deviation” from the norm. See § 562.016.-4. This, however, is not “knowledge” under our Criminal Code. It is “recklessness”, nothing more. Having failed to prove defendant knew the child’s age was less than seventeen, the state failed to make a submissible case.⁹

Judgment reversed.

✎

Footnotes . . .:

 Admittedly, a person in defendant’s shoes can easily avoid conviction of a crime under § 568.-050 by simply refusing to check the age of “dancers". This result is to be rectified, however, by the legislature, not by judicial redefinition of already precisely defined statutory language or by improper inferences from operative facts. . .

Other states protect their minor children by the simple device of removing the requirement of "knowledge” of the child’s age as an element of the offense. Thus, the New York Penal Code provides:

"Notwithstanding the use of the term ‘knowingly’ in any provision of this chapter defining an offense in which the age of a child is an element thereof, knowledge by the defendant of the age of such child is not an element of any such offense and it is not, unless expressly so provided, a defense to a prosecution therefor that the defendant did not know the age of the child or believed such age to be the same as or greater than that specified in the statute.” N.Y.Penal Law, § 15.20.3 (McKinney 1975).