State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1445

State of Minnesota,
Respondent,

vs.

Rosalee Ann Grace Pickett,
Appellant.

Filed June 24, 2019
Reversed
Reilly, Judge

Wadena County District Court
File No. 80-CR-17-431

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Kyra L. Ladd, Wadena County Attorney, Michelle D. Mahlen, Assistant County Attorney,
Wadena, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appella te Public Defender, Suzann e M. Senecal -Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Johnson, Judge; and Reilly,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Because there is insufficient evidence to support appellant’s child-endangerment
conviction, we reverse.

2
FACTS
Appellant Rosalee Pickett is a single mother of four children. I n the summer of
2017, three of her children lived with her in Sebeka: fourteen-year-old AB, eleven-year-
old CD, and two-year-old EF.1 On June 14, 2017, AB, CD, and EF were home without an
adult present after Pickett left for her 6:00 p .m. to 11:30 p.m. shift at work. Because the
Sebeka Police D epartment received an anonymous tip that there was a child being held
captive in a bedroom at Pickett’s home, a Sebeka police officer conducted a welfare check
around 9:45 p.m. Pickett’s two older sons, AB and CD, let the officer in and gave him a
tour. Behind a locked door, the officer found EF lying on the floor wrapped in a blanket.
EF’s room did not contain a bed or any other furniture. The officer saw clutter, dirty
diapers on the floor, and feces smeared on the walls. There was a broken fan, with a cord,
within EF’s reach. The officer called for assistance and a county sheriff’s officer arrived
at the home.
AB and CD told the officers that they were babysitting EF because Pickett was at
work. Pickett directed AB and CD to put EF to bed around 9:30 p.m. and to lock the door
to EF’s bedroom once they put him to bed. According to AB and CD , it was a normal
occurrence to leave EF in his room overnight and let him out of his room the next morning.
Later that night, t he officers interviewed Pickett. During the recorded interview,
Pickett stated that EF has a sensory -development issue, which results in his continually

1 The children were assigned alias initials in the complaint filed with the district court. The
district court used these initials to identify the children during trial, and we therefore
continue to use the initials to identify the children in this appeal.

3
taking off his diapers and rubbing his feces on things, including his toys, his bed, and the
walls. Pickett had been dealing with the issue for almost a year, including having
professionals come to her home to work with her and EF. Normally, Pickett’s 25-year-old
nephew babysat the children, but because he was unavailable Pickett left EF in the care of
AB and CD that night. Pickett stated th at it was normal to lock EF in his room during
bedtime and nap times because the stairs outside his bedroom door were dangerous.
The state charged Pickett with three counts of child neglect in violation of Minn.
Stat. § 609.378, subd. 1(a)(1) (2016) , regarding AB, CD, and EF, and one count of child
endangerment in violation of Minn. Stat. § 6 09.378, subd. 1 (b) (2016), regarding EF .
During the two-day jury trial, the responding officers, AB, CD , and Pickett testified. At
the conclusion of the evidentiary portion of the trial , the district court granted Pickett’s
motion for a directed verdict on the two child neglect counts regarding AB and CD. The
remaining two counts regarding EF were submitted to the jury. The jury found Pickett
guilty of child endangerment and not guilty of child neglect.
Pickett appeals, arguing that the evidence is insufficient to support her child -
endangerment conviction.
D E C I S I O N
I. Standard of Review
When reviewing the sufficiency of the evidence, this court undertakes “a
painstaking analysis of the record to determine whether the evidence, when viewed in the
light most favorable to the conviction, was sufficient” to support the conviction. State v.
Ortega, 813 N.W.2d 86, 100 (Minn. 2012) (quotation omitted). We must assume that the

4
fact-finder “believed the state’s witnesses and disbelieved any evidence to t he contrary.”
State v. Caldwell, 803 N.W.2d 373, 384 (Minn. 2011) (quotation omitted). We will “not
disturb the verdict if the jury, acting with due regard for the presumption of innocence and
the requirement of proof beyond a reasonable doubt, could rea sonably conclude that the
defendant was guilty of the charged offense.” Ortega, 813 N.W.2d at 100.
II. The evidence presented at trial was insufficient to support Pickett’s
conviction for child endangerment.

Under Minn. Stat. § 609.378, subd. 1(b), the state was required to prove that Pickett
intentionally or recklessly caused or permitted EF to be placed in a situation likely to
substantially harm his physical, mental or emotional health or cause his death. “The word
‘likely,’ as it is used in the statutory definition s of child neglect and child endangerment,
means ‘more likely than not.’” State v. Tice, 686 N.W.2d 351, 351-52 (Minn. App. 2004),
review denied (Minn. Nov. 16, 2004). The child-endangerment statute requires “more than
ordinary civil negligence” and “more than a simple deviation from the standard of care.”
Id. at 355 (emphasis omitted).
a. Physical Harm
Because the standard jury instructions provide that “[t]here is no pr ecise definition
for the term ‘substantially harms the child’s physical, mental, or emotional health,’” Pickett
argues that this court should look to the definition of “substantial bodily injury.” 2 See 10

2 Generally, Minnesota Statutes define “substantial bodily harm” as “bodily injury which
involves a temporary but substantial loss or impairment of the function of any bodily
member or organ, or which causes a fracture of any bodily members” Minn. Stat.
§ 609.02, subd. 7a (2018).

5
Minnesota Practice CRIMJIG 13.92 (2016). The state concedes that the definition could
have been relevant to the jury at the time of tria l, but argues that because the district court
omitted the definition for “substantial physical harm” in its jury instructions, and no
objection was made at trial, the definition is not relevant on review.3
We need not reach th e argument regarding the relevance of the definition of
“substantial bodily harm” because the facts presented by the state do not indicate that EF
was either physically harmed or was likely to sustain substantial physical injury. This court
has affirmed a district court’s dismissal of child-endangerment charges where the children
were unlikely to sustain substantial physical injury. Tice, 686 N.W.2d at 355. In Tice, the
children were left alone in a locked vehicle for a short amount of time while their parents
were inside a store. Id. at 352. This court determined that the child-endangerment statute
requires “more than a simple devi ation from the standard of care ” and that the conduct
must be “more likely than not” to result in harm. Id. at 355. Consistent with Tice, here,
the state did not present any evidence of actual physical harm to EF . Instead, the
responding officer testified that EF did not display any sign of physical trauma.
Additionally, u pon review of the record, t he only conditions that could be
considered potentially dangerous to EF’s physical health are the fan’s cord and the closed
window on a “muggy” summer night .4 Though these items could conceivably cause
physical harm, we conclude that it is not “likely” that substantial physical harm would

3 Pickett does not raise an argument regarding the jury instructions on appeal.
4 The state elicited testimony at trial that if the window had been open it would have been
a safety hazard for EF.

6
result. Cf. State v. Hatfield , 627 N.W.2d 715, 720 (Minn. App. 2001), (affirming the
sufficiency of the evidence of the child -endangerment conviction and determining that
physical harm was likely to result where father stored anhydrous ammonia in an altered
propane tank in his home , in the proximity of his children , and officers suffered from
burning sensation in eyes and difficult breathing upon enteri ng the home ) aff’d, 639
N.W.2d 372 (Minn. 2002) ; State v. Huffman , No. A15 -0917, 2016 WL 1724163, at *4
(Minn. App. May 2, 2016) (affirming conviction for child endangerment where appellant
drove under the influence of controlled substances with child seat ed on floor of car with
three stacked tires overhead). Accordingly, we determine that no reasonable jury could
convict Pickett for child endangerment based upon actual or likely physical harm to EF.
b. Emotional and Mental Harm
Pickett argues that the state failed to meet its burden of proof because the state did
not offer evidence that Pickett permitted EF to be placed in a situation that was more likely
than not to cause substantial mental or emotional harm.
We must review the evidence presented in the ligh t most favorable to the guilty
verdict. Here, the state’s evidence showed that EF was locked in a room from the outside
from approximately 9:30 p.m. until responding officers arrived at approximately 9:45 p.m.
Pickett relied on her two other children, AB and CD, to put EF to bed by locking him in
his room. EF had no bed to sleep on , because Pickett had previously removed EF’s bed
from his room in order to clean feces from it, and there was no other furniture in his room.
The evidence shows that EF was l eft alone long enough to defecate in his diaper, remove
his diaper, smear the feces on the wall, and fall asleep on the floor. It was a normal

7
occurrence to lock EF in his room duri ng nap times and bedtime hours because the stairs
outside his bedroom were dangerous.
In State v. Peterso n, this court determined that there was insufficient evidence to
support a conv iction for child endangerment . No. A06 -1226, 2007 WL 4168266, at *3
(Minn. App. Nov. 27, 2007). In Peterson, the state presented evidence that the children’s
mother spent the night with two men in a room separated by only a plywood and fabric
partition from the area where her children slept. Id. In the area in which the mother slept,
there was a glass pipe, butane torch, and cotton balls on a coffee table. Id. The room was
messy, and the children slept on a bean bag chair and bedding on the floor rather than beds.
Id. This court determined:
As much as we might disapprove of appellant’ s sleeping
arrangements or of the presence of what was apparently drug
paraphernalia, there is no evidence that the children were
actually exposed to any drug or sexual activity . . . . Placing
one’s children in this setting and having them sleep in
makeshift quarters in a messy basement may be child neglect.
However, even in the light most favorable to conviction . . . the
record is not adequate to support a finding that the children
were in a situation likely to cause substantial harm to their
physical, mental, or emotional health.

Id. at *4. Although Peterson is unpublished and therefore not precedential, we find it s
reasoning persuasive. Like Peterson, here EF did not have a bed to sleep on and his room
was messy. We might disapprove of EF’s sleepi ng arrangements, but the record is not
adequate to support a finding that EF was in a situation likely to cause substantial harm to
his mental or emotional health.

8
Nor, o n this record, can we link EF’s feces -smearing behavior with Pickett’s
decision to sequester him in his room at bedtime. Instead, the record suggests that EF’s
behavior was an on-going issue; Pickett had to clean feces off the walls often. And Pickett
had worked with a professional to address EF’s sensory-development issues.
Though an expert is not required , expert testimony can be helpful to establish the
“link” between the traumatic event and “the resultant emotional harm.” State v. Williams,
451 N.W.2d 886, 882 (Minn. 1990). Here, the state offered no expert evidence regarding
mental or emotional harm to EF. Instead, the responding o fficer testified that when she
saw EF he was not displaying any signs of emotional trauma. Moreover, Pickett’s decision
to lock EF in his bedroom throughout the night while she is working to support her family
is distinguishable from the conduct in other child endangerment cases considered “likely”
to cause substantial mental or emotional harm. See State v. Meredith, No. A06-2234, 2008
WL 942616, at *6 (Minn. App. Apr. 8, 2008) (affirming child -endangerment conviction
where appellant invaded his daughter’ s privacy by peering on her while she was in the
bathroom, groping her, pulling her clothes off, and exposing himself to her on numerous
occasions). Accordingly, we determine that , on this record , no reasonable jury could
conclude that Pickett was guilty of child endangerment.
Reversed.