Riley, J.
Appellant-Defendant, Chasity Becklehimer (Becklehimer), appeals her conviction and sentence for neglect of a dependent, a Level 6 felony, Ind. Code § 35-46-1-4(a)(1).
We reverse.
Becklehimer presents five issues on appeal, one of which we find dispositive, and which we restate as follows: Whether the State presented sufficient evidence beyond a reasonable doubt to support her conviction for neglect of a dependent.
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Becklehimer contends that the evidence is insufficient to sustain her conviction for neglect of a dependent, a Level 6 felony.
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Becklehimer does not dispute that J.K. was a dependent in her care. She contends that she did not knowingly place J.K. in a situation that endangered his life or health by leaving him home alone for the weekend.
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Becklehimer argues that the State did not prove beyond a reasonable doubt that she was subjectively aware of a high probability that she placed J.K. in a dangerous situation by leaving him alone for the weekend. In support of her claim, Becklehimer cites to two cases: Scruggs and Thames v. State, 653 N.E.2d 512, 517 (Ind. Ct. App. 1995).
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In Scruggs, Scruggs left her seven-year-old son, M.H., at home while she ran an errand. Scruggs, 883 N.E.2d at 190. When she returned approximately three hours later, M.H. was missing. Id. M.H. was later found safe at Scruggs’ boyfriend’s uncle’s home, but Scruggs was charged and subsequently convicted of neglect of a dependent. Id. On appeal, this court concluded that the evidence was insufficient to establish Scruggs had a “subjective awareness of a ‘high probability’ that M.H. was placed in a dangerous situation when she left him home alone.” Id. at 191. Even though M.H. was seven years old, Scruggs testified M.H. knew “not to mess with the stove or open the door or anything,” and the State failed to present any evidence contradicting Scruggs’ evidence that suggested M.H. was responsible enough to be home alone. Id. Because the only evidence presented suggested M.H. was responsible enough to be left at home, we concluded there was insufficient evidence that Scruggs was subjectively aware of a high probability that M.H. was placed in a dangerous situation. Id.
In Thames we held that sufficient evidence was presented to support Thames’ conviction of neglect of a dependent after Thames left his girlfriend’s five-year-old daughter alone and the child wandered out of her home and was eventually taken to the police department. Thames, 653 N.E.2d at 517. Although Thames was only a few houses away from the child, he was gone for several hours, and the child was found wandering the street. Id. We concluded Thames “was experienced at watching children and thus should have been subjectively aware of a high probability that he placed [the child] in a dangerous situation by leaving her at home.” Id.
Becklehimer argues that the circumstances surrounding her decision to leave her child alone is more similar to the mother’s decision in Scruggs than the babysitter’s decision to do so in Thames. She claims that besides being older and more mature than the five-year-old girl in Thames, “[J.K.] knew his mother was leaving and he agreed to stay home. [] He did not wake up to discover her gone unexpectedly.” (Appellant’s Br. p. 23). She contends that the State failed to present evidence that she had actual knowledge that she left J.K. in a dangerous situation, and adds that the State also failed to contradict her “characterization that [J.K.] was responsible” enough to be left alone like the child in Scruggs. (Appellant’s Br. p. 23). She adds that if we uphold her conviction, it “would be tantamount to creating a per se rule that leaving a 13-year-old alone overnight constitutes neglect of a dependent, which is explicitly rejected in Scruggs.”
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In Scruggs, we rejected a per se rule that leaving a seven-year-old child home alone for any period of time constitutes neglect of a dependent and reasoned that “Scruggs may have demonstrated bad judgment, but, again, the State has not proved beyond a reasonable doubt that she had a subjective awareness of a high probability that she had placed M.H. in a dangerous situation.” Scruggs, 883 N.E.2d at 191. Like the holding in Scruggs, we likewise conclude that the State did not introduce evidence that Becklehimer was subjectively aware that she placed J.K. in a dangerous situation by leaving him alone for the weekend. Like in Scruggs, Becklehimer presented evidence that suggested thirteen-year-old J.K. was responsible enough to be left home alone, and the State did not introduce contradictory evidence. It is undisputed that thirteen-year-old J.K. was more mature than the seven-year-old in Scruggs who “knew not to mess with the stove or open the door.” Scruggs, 883 N.E.2d at 191. J.K. stated that he knew how to bathe himself and prepare his own meals using the microwave. J.K. testified that Becklehimer had left him with a cellphone, $25, and a refrigerator stocked with food. While he was free to go to the neighborhood pool on his own, there were certain things he was not allowed to do. J.K. was required to follow house rules, which dictated that no friends were allowed to visit when he was home alone. J.K. testified that when he was at the neighborhood pool with B.D., he informed B.D. that he was alone, but did not invite him to his house which would have been against house rules. J.K. stated that he did not know why B.D. was tapping on his window but stated that B.D. was probably “horsing around.” (Tr. Conf. Vol. II, p. 94). J.K. was also responsible enough to contact the police when he perceived a danger.
Ultimately, the burden rested with the State to prove that Becklehimer was subjectively aware of a high probability that she placed J.K. in a situation involving an actual and appreciable danger.
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As we stated in Gross, 817 N.E.2d at 311, “[t]here is admittedly a fine line between properly exercising the police power to protect dependents and improperly subjecting every mistake a parent may make in raising his or her child to prosecutorial scrutiny.” While Grandfather stated that Becklehimer had failed to inform him that she would be away that weekend, the record shows that Becklehimer’s omission was an isolated occurrence since she typically alerted Grandfather whenever she left J.K. home alone. Further, even though Becklehimer was in Pennsylvania for the weekend, and contrary to the State’s assertion that Becklehimer had abandoned J.K. for an indefinite period, Becklehimer returned on Monday, and during her time away, she remained in contact with J.K. This is supported by the fact that Becklehimer had talked to J.K. shortly before B.D. started tapping on J.K.’s window and she was subjectively unaware of B.D.’s actions. J.K. testified that it was B.D.’s actions that caused him to be afraid and it was not because he had been left home alone. J.K. also had a cell phone which he was required to use in case of an emergency. When an emergency arose, which it did in this instance, J.K. immediately contacted the police. Although J.K. knew to call Grandparents when he needed anything, Grandfather testified that J.K. informed him that he was frightened by B.D.’s actions and J.K. figured that “the best thing to do” in that scenario “was to call someone that might get there quicker . . . so he called the police.” (Tr. Conf. Vol. II, p. 110). When the police arrived and met B.D., they ordered him to go home, and they did not contact his parents to report his actions. Officer Hunter observed that J.K. appeared frightened by B.D.’s action, but unharmed. Even though the police were unable to contact Becklehimer at that point, they contacted Grandparents who arrived moments later, and J.K. was released into their care.
Looking at all the surrounding circumstances of this case, we agree with Becklehimer that the State failed to develop testimony from any of the witnesses it called to establish that by leaving J.K. alone for the weekend she was subjectively aware of a high probability that she would be exposing J.K. to a dangerous situation that would endanger his life or health. We therefore agree with Becklehimer that the State failed to prove the mens rea element of the crime. See Martin v. Ohio, 480 U.S. 228, 238 (1987). Accordingly, we reverse Becklehimer’s conviction for Level 6 felony neglect of a dependent.
Based on the foregoing, we conclude that there was insufficient evidence to sustain Becklehimer’s conviction for Level 6 felony neglect of a dependent.
Reversed.
Robb, J. and Molter, J. concur