LEIGHA N. DEVILLE APPELLANT
COMMONWEALTH OF KENTUCKY APPELLEE
DISCRETIONARY REVIEW FROM MCCRACKEN CIRCUIT COURT HONORABLE
TIMOTHY J. KALTENBACH, JUDGE ACTION NO. 15-XX-00005
FOR APPELLANT: Kathleen K. Schmidt Assistant Public Advocate
FOR APPELLEE: Andy Beshear Attorney General of Kentucky James
C. Mills Special Assistant Attorney General Paducah,
BEFORE: JONES, J. LAMBERT, AND MAZE, JUDGES.
LAMBERT, J., JUDGE.
N. Deville was convicted of Wanton Endangerment in the Second
Degree in McCracken District Court. Her conviction was
affirmed on direct appeal to the McCracken Circuit Court. We
granted Deville's motion for discretionary review. We
reverse the McCracken Circuit Court's order affirming and
remand the matter to the McCracken District Court for an
entry of a judgment of acquittal.
facts leading to Deville's arrest are as follows: On the
morning of March 25, 2015, Deville's neighbor called
police dispatch to report the presence of an unattended young
child playing in the backyard. Sergeant David Shepherd, a
deputy sheriff, arrived at the scene within fifteen minutes
of the call. He found whom he later learned was Deville's
two-year-old son playing in the neighbor's sand pile. The
young child possessed limited communication skills and was
thus unable to answer any of Sergeant Shepherd's
questions about his identity and place of residence. Shepherd
ultimately determined where the child lived. Shepherd had to
knock and announce repeatedly before Deville came to the door
and acknowledged that the child was her son.
Shepherd's calculation the child was unsupervised for a
minimum of forty-five minutes. Shepherd called social
services for assistance while he was in the process of
locating the child's residence. Susan Carneal,
investigator for the Cabinet for Health and Family Services,
arrived at the scene and conducted her own examination of the
circumstances. Deville allowed Carneal access to the home,
and it was at that time that Carneal discovered the presence
of another adult on the premises.
questioned about the morning's events, Deville explained
that she had arisen in time to take her six-year-old daughter
to school, leaving her sleeping sons (she also has a
four-year-old) with the other adult in the home. After
arriving back at the house after the school run, Deville
checked on the two boys and found that they were still
asleep. Deville opted to return to bed herself, having worked
the late shift the night before. Her youngest child escaped
while Deville was still asleep.
questioning Deville, Shepherd and Carneal both expressed
concern that Deville was not taking the matter seriously,
that the gravity of the situation "just wasn't
sinking in." Carneal requested that Deville submit to a
drug screen, but she refused. A later court order for drug
testing went ignored by Deville. Shepherd made the decision
to arrest Deville for Wanton Endangerment. The children were
temporarily removed from her custody; they continued to live
in foster care at the time of their mother's trial.
was tried in McCracken District Court on September 11, 2015.
The jury found her guilty of Wanton Endangerment in the
Second Degree and recommended a sentence of forty-five
days' incarceration and a $200.00 fine. Deville's
direct appeal to McCracken Circuit Court was unsuccessful,
and she sought and was granted discretionary review in this
Court. We vacate the judgment against Deville.
first argument, and the grounds upon which we are basing this
decision, is that a directed verdict of acquittal should have
been granted at the conclusion of the Commonwealth's case
Revised Statute (KRS) 508.070(1) lists the elements required
for a conviction of Wanton Endangerment in the Second Degree:
A person is guilty of wanton endangerment in the second
degree when he wantonly engages in conduct which creates a
substantial danger of ...