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"The evidence simply isn't strong enough" against women who drove into flooded washes with children

Pima County Attorney's Office dismissed child abuse charges against two women

CREATED Oct. 24, 2012

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  • Law enforcement said the two moms endangered their children, driving into flooded washes last month. 9 On Your Side returned to the Pima County Attorney’s Office for answers. Video by kgun9.com

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  • The case of child endangerment against 29-year-old mother Edna Encinas (left) was dismissed because the evidence collected by law enforcement was not enough. The Pima County Attorney's Office also said it and the sheriff’s department would continue to review the case against 18-year-old Tiffany Sherman (right).

  • The two women drove their children into flooded washes, leading them to be charged with child endangerment. But prosecutors have since dismissed those initial charges.

Reporter: Kevin Keen
 
TUCSON (KGUN9-TV) - After two women drove into flooded washes with their children in tow, why did county prosecutors dismiss initial charges of child endangerment against them? 9 On Your Side returned to the county attorney’s office for answers to our questions and yours.
 
The Pima County Attorney’s Office confirmed Tuesday the case against 29-year-old mother Edna Encinas was dismissed because the evidence collected by law enforcement was not enough. The office also said it and the sheriff’s department would continue to review the case against 18-year-old Tiffany Sherman.
 
County chief criminal deputy Kellie Johnson told 9 On Your Side Wednesday she cannot discuss specific reasons for the dismissals.
 
Johnson did explain this about any crime: “If we as prosecutors do not believe the evidence is sufficient to prove guilt beyond a reasonable doubt, we can't go forward. Sometimes, the evidence simply isn't strong enough for us to proceed.”
 
Johnson added that child abuse charges require "a whole host of things the state has to prove beyond a reasonable doubt."
 
“So it's not simply, perhaps, evidence of endangerment or simply evidence that she went into the wash,” Johnson explained. “There's the element of criminal intent and the nature of potential injury to the child.”
 
Johnson said criminal intent is generally something proving any crime requires.
 
“It is that criminal intent that differentiates unwise behavior from criminal behavior,” she said. “There are lots of things that people do that maybe aren't the wisest decisions, but it doesn't make them necessarily a crime.”
 
“Law enforcement makes the best decision that they can out there when things are actually happening,” Johnson further explained. “But, ultimately, the standard for law enforcement to make an arrest is different than the standard the prosecutor must apply in determining whether a case can go forward for prosecution. While law enforcement looks to see if they have probable cause, we look to see whether the evidence as it stands presents us with a reasonable likelihood of conviction beyond a reasonable doubt.”
 
9 On Your Side reporter Kevin Keen asked Johnson, “Can you consider other offenses? If not child abuse, (then) reckless driving, endangerment. Were those considered?" Johnson said yes, prosecutors considered charges for other crimes, but haven't pursued them at this point.
 
9 On Your Side also shared with the attorney's office questions from viewers.
 
On the 9 On Your Side Facebook page, Owen Thomas wrote: "If a father had done the same thing, they would have thrown the book at him. It is gender bias, pure and simple..."
 
“Is there any gender basis, as Owen suspects?” Keen asked Johnson.
 
“No, the law is the law,” she replied. “It applies equally to the men, women, mothers, fathers, brothers, sisters.”
 
On Facebook, Jeff Steinkamp asked about the two cases: "How much more proof do you need?"
 
“We need proof that we feel would stand up to proof beyond a reasonable doubt,” Johnson said. “That eight, 12 jurors sitting in a box at a felony trial would be able to determine beyond a reasonable doubt that all elements of the charges were met.”
 
Rita Howard commented on Facebook: "Now they are not going to be held accountable for (their) actions?"
 
“Will they be held accountable?” Keen asked Johnson.
 
“Well, not criminally, no,” Johnson said, if things stay as they are. “However, in Miss Encinas' case, for example, she was arrested and taken to jail. That's a pretty big wake up call.”
 
The Pima County Sheriff's Department, which arrested the women last month for child abuse and other charges, said with the dismissing of those charges, it will consider revisiting the cases. A spokesman said that could possibly lead to recommendations of misdemeanor charges for a traffic offense, like a violation of the state stupid motorist law.
 
Prosecutors can still also press charges in the future. In Sherman's case, the attorney's office is still reviewing evidence for possible charges. In Encinas' case, if there's new evidence or changes, charges are possible, the attorney's office reported.