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In recognizing that "gross and culpable" negligence can render a defendant criminally liable, the negligence must be of a higher degree than is required to establish negligence upon a mere civil issue. An appellate court must examine the defendant's conduct to determine: (1) whether a substantial and unjustifiable risk existed at the time of the conduct or resulting from the conduct; (2) whether, using a subjective standard, the defendant failed at the time of the conduct to perceive the risk; and (3) whether that failure was a gross deviation from the standard of care of an ordinary person under the circumstances.
The child was riding on defendant's lap in the front passenger seat of a rental car and was killed when the passenger-side air bag deployed in a collision. Defendant was convicted of criminally negligent homicide. Defendant appealed, arguing that the evidence was insufficient to support the conviction because her conduct did not constitute a gross deviation from the standard of care.
Under the circumstances, was the evidence sufficient to support the defendant’s conviction?
The defendant’s conviction was reversed. According to the Court, although the State introduced a collection of newspaper articles to show that information about safely transporting children was available to the community, nothing indicated that defendant actually read that information. The articles entered into evidence illustrated how new the risk of air bags was in 1998. According to one of the articles, 1999 was the first year that all cars had passenger-side air bags. The fact that there was a need for a large-scale public information campaign aimed at educating parents about child car safety indicated how many people were not using child safety restraints at the time of the accident. Therefore, it would be difficult for a rational trier of fact to conclude that it was a gross deviation from the standard of care at the time of the accident for defendant to transport her child improperly.