William R. Kennedy, Hennepin County Public Defender, Renee J. Bergeron, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for Appellant)

Hubert H. Humphrey, III, Attorney General, 14th Floor NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Respondent)

Michael O. Freeman, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Hennepin County Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for Respondent)

Considered and decided by Harten, Presiding Judge, Toussaint, Chief Judge, and Crippen, Judge.

The juvenile court adjudicated J.S.C. delinquent for felony child endangerment. On appeal, J.S.C. asserts (1) that the juvenile court erroneously applied "recklessness" as set forth in the child endangerment statute, and (2) that the evidence is insufficient to support her delinquency adjudication. We affirm.

After J.S.C. turned off the water, seven to ten minutes elapsed before she placed T.C. in the tub. J.S.C. assumed that the water had sufficiently cooled because of the open window, no noticeable steam rising from the water, and her surmise that cold water had mixed with hot water. J.S.C. admits that she did not test the water before placing T.C. in the tub. After placing the infant in the tub, J.S.C. left the bathroom for approximately "39 seconds." Upon returning, J.S.C. removed the infant from the tub. T.C. had suffered second-and third-degree burns on her feet, legs, buttocks, and groin area. Later that day, a Minneapolis plumbing inspector determined that the cold water did not work and the temperature of the hot water in the bathtub was 167 degrees Fahrenheit.

By amended petition, J.S.C. was charged with felony child neglect and felony child endangerment.[2] Following a trial, the juvenile court concluded that J.S.C. had recklessly caused or permitted T.C. to be placed in a situation likely to substantially harm her physical health and that the endangerment resulted in substantial harm to T.C.'s physical health, in violation of the child endangerment statute, Minn. Stat. § 609.378, subd. 1(b)(1) (1996). The juvenile court dismissed an associated charge of child neglect but found J.S.C. delinquent on the child endangerment charge and ordered disposition. J.S.C. appeals.

A person acts "recklessly" when he consciously disregards a substantial and unjustifiable risk that the element of an offense exists or will result from his conduct; the risk must be of such a nature and degree that its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation. A person acts "negligently" when he should be aware of a substantial and unjustifiable risk that the element of an offense exists or will result from his conduct; the risk must be of such a nature and degree that his failure to perceive it involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation. The difference between the terms "recklessly" and "negligently," as thus defined, is one of kind rather than of degree. Each actor creates a risk of harm. The reckless actor is aware of the risk and disregards it; the negligent actor is not aware of the risk but should have been aware of it.

Id. at 733-34 (quoting 2 Charles E. Torcia, Wharton's Criminal Law § 168 at 272 (14th ed. 1979) (footnotes omitted)).

The jury instruction for child endangerment defines "reckless" as

conscious and intentional conduct which the defendant knows or should know creates an unreasonable risk of harm to another. The defendant need not have intended, however, to cause harm.

10 Minnesota Practice, CRIMJIG 13.34.02 (Supp. 1996). J.S.C. argues that, while she may have been guilty of negligent conduct, she did not consciously disregard a substantial and unjustifiable risk to the infant's health. She urges that the juvenile court erroneously applied a negligence standard to her actions.

The evidence shows that J.S.C. knew that the water was "messed up." She opened the bathroom window to cool the bath water. She let the water cool for seven to ten minutes before placing T.C. in the water. She thought that the water had sufficiently cooled because she saw no steam rising, and she assumed that there was cold water. J.S.C. admitted that she should have tested the water before placing the infant in the tub. J.S.C. was not unaware of the risk that the water was hot; she was aware of the risk and disregarded it. We conclude that the juvenile court did not erroneously apply the child endangerment statute to the facts.

2. To challenge successfully the sufficiency of the evidence supporting a delinquency adjudication, a juvenile must prove that the trier of fact could not reasonably find that he or she committed the charged acts. In re Welfare of T.M.V., 368 N.W.2d 421, 423 (Minn. App. 1985). We review the evidence in the light most favorable to the prosecution. In re Welfare of M.D.S., 345 N.W.2d 723, 727 n.1 (Minn. 1984).

J.S.C. argues that the evidence fails to establish her awareness of a substantial and unjustifiable risk and that she acted in conscious disregard of that risk. J.S.C. claims that she was unaware of the "degree of risk" posed by the hot bath water because she was unaware that the cold water pipe to the bathtub faucet was frozen. But the evidence shows that J.S.C. was always aware of the hot bath water risk. She knew that she should have tested the water, but simply assumed that the water had sufficiently cooled. Her awareness of the hot water risk, coupled with her failure to test the water, supports the finding that J.S.C. committed child endangerment. We conclude that the evidence was sufficient to support the delinquency adjudication.

Affirmed.

[ ]¹The investigating police officer testified that J.S.C. told him that vapor was coming from the water when she filled the bathtub. At trial, J.S.C. testified that she did not notice steam from the bath water later when she placed the child in the tub.

[ ]²We are troubled by the bringing of a delinquency petition against a 14-year-old child for felonious conduct under the stressful circumstances presented in which that child was placed in sole charge of four younger children. We recognize, however, that the prosecutorial function is the responsibility of the executive authority, not the judiciary, and the prosecutor may have knowledge of collateral considerations that are not of record.