State v. O'BANNONState v. O'BANNON
- Reporters:
- , , , ,
- Before:
- Christiansen
OPINION
T1 Defendant Cameron Clint O'Bannon appeals from his jury conviction of child abuse, a second degree felony. See
BACKGROUND 2
1. The Victim's Injuries
12 In the fall of 2005, a mother and her eleven-month-old son (the victim) moved into O'Bannon's home. A few weeks later, O'Bannon and the victim spent some time together without the mother present, after which the mother noticed that the victim was bruised under one of his eyes and on the bridge of his nose. She asked O'Bannon what had happened, and he explained that the victim hurt himself after falling over some lawn furniture.
13 On October 31, the mother left the house with her daughter to take O'Bannon's son to school and run some errands. Before they left, the mother's daughter put the victim in bed with O'Bannon, who was still asleep. After dropping off O'Bannon's son and eating breakfast, the mother noticed that she had missed two calls from O'Bannon to her cell phone. The mother called O'Bannon back immediately, and he asked her to rush home because something was wrong with the victim. O'Bannon explained to her that the victim was "barely conscious, and his breathing was shallow." The mother urged O'Ban-non to call an ambulance, but he resisted
T4 O'Bannon told the police officer who responded with the ambulance that he had gone upstairs to gather some clothing for the children while the victim was at the bottom of the stairway playing, when O'Bannon heard "repeated thud soundf[s]." O'Bannon stated that he went to the stairway and noticed the victim lying on his back at the bottom of the stairway. O'Bannon also testified that he attempted to revive the vietim by "rubbing his belly."
1 5 Dr. Bruce Herman, who is an emergency medicine physician, a general pediatrician, and a child abuse pediatrician, treated the victim that night after he was transported from the Payson hospital to Primary Children's Medical Center in Salt Lake City. Although there were few external signs of severe injury, consisting only of a "few bruises here and there" and "a small mark on the top of his head," a CT sean showed "intra-cranial bleeding" or sub-dural hemorrhages of two different ages, le., "acute and sub-acute injury." Dr. Herman opined that the acute bleeding was less than three days old and the sub-acute bleeding appeared to be three days to two weeks old. Dr. Herman testified that he thought the "sub-dural hemorrhages ... [werp] traumatic in origin.”
T6 Dr. Herman also reported that the victim "had extensive bilateral retinal hemorrhages with retinoschisis." +At trial, Dr. Herman described retinal hemorrhages as "bleeding at the back of the eye," and reti-noschisis as "an actual splitting of layers of the retina," essentially, "a blood blister at the back of the eye." Dr. Herman testified that the victim's "retinal hemorrhages are at the most extreme [elnd of severity, and have never been reported to have come from a non-fatal accidental cause."
T7 Dr. Herman concluded that the "constellation" of the victim's injuries-the retinal hemorrhages, the retinoschisis, and the sub-dural hemorrhages-were "quite consistent with inflicted trauma by shaking or shaking with impact." 3 Dr. Herman's conclusion that the victim had been shaken that morning was supported by the victim's immediate symptoms of severe brain injury while he was still with O'Bannon. Dr. Herman did not believe the victim likely sustained the sub-dural 'hemorrhage and acute bleeding from falling down the stairs. 4 Dr. Herman opined that while the victim experienced increased intra-cranial pressure due to the swelling of the sub-dural hemorrhage, this increased pressure did not likely cause the éxtensive retinal hemorrhages and retinosg-chisis.
T8 Dr. David Christopher Dries, a pedia-trie ophthalmologist, examined the victim's eyes the day after the vietim was admitted to Primary Children's Medical Center and diagnosed the victim with "bilateral diffuse intra-retinal hemorrhages and hemorrhages in all of the retina on both eyes" and "retinoschi-
II. O'Bannon's Defense
T9 At trial, O'Bannon presented a "re-bleed" defense supported by his expert witness, Dr. Robert Keith Rothfeder, formerly an emergency room physician and currently a physician in private practice with experience in treating traumatic injuries. As part of his current practice, Dr. Rothfeder consults in brain injury and child abuse cases. Dr. Rothfeder, who is also a lawyer, explained that the vietim had a sub-dural hema-toma with "old blood" and "fresh blood." The "old" sub-dural hematoma had a " 'membrane' ... like a scab" that formed after the old bleeding stopped. Dr. Rothfeder stated that "re-bleeding of an old sub-dural hemato-ma can occur with little force, and perhaps with no force[, but] from biological factors." Dr. Rothfeder testified "that a fall down [the] stairs is one of the things that could have caused a re-bleed of that old sub-dural hema-toma" even though the old and new bleeding occurred in two different areas of the brain. In Dr. Rothfeder's opinion, the victim's injury occurred on October 81, which caused re-bleeding of the victim's old sub-dural hemato-ma (the preexisting hematoma). This re-bleeding, he testified, would have "increase[{d the victim's] intra-cranial pressure over time." Dr. Rothfeder believed that the victim's retinal hemorrhages and retinoschisis were likely caused by the increasing pressure of the re-bleeding of the sub-dural hematoma rather than by a new, acute injury.
10 O'Bannon took the stand and testified that he "did [not] hurt [the vietim]," did not shake or strike the victim, and "would never hurt [the victim] in any way ...," stating, "[Hle was one of my own kids."
III. The Jury Instructions
{11 Several of the instructions given to the jury explained the elements of second degree felony child abuse, see
Intent, being a state of mind, is seldom susceptible of proof by direct and positive evidence and must ordinarily be inferred from acts, conduct, statements and cireum-stances. Thus, you would be justified in inferring that a person must have intended the natural and probable consequences of any act purposely done by him or her.
(Emphasis added.) Instruction No. 8 provided in part, "As the jury, you may infer a defendant's intent from a voluntary act which produces as its natural and probable consequence an unlawful result. You are instructed that cireumstantial evidence is competent to prove that the defendant had the specific intent required when he committed the acts charged." (Emphasis added.)
{13 The trial judge gave Instruction No. 9A over O'Bannon's objection, 5 stating, "I believe this principfle] is one that's fairly long-standing in the law, and we will allow this instruction to be given," contingent on the prosecutor's statement to the jury that the instruction would not apply if it found that the victim had fallen down the stairs. Ultimately, the jury found O'Bannon guilty of second degree felony child abuse. After trial, O'Bannon filed motions to arrest judgment and for a new trial on the ground, inter alia, that Instruction No. 9A was erroneous. The trial court denied O'Bannon's motions. O'Bannon appeals only the trial court's issuance of Instruction No. 9A.
ISSUE AND STANDARD OF REVIEW
T14 O'Bannon challenges Instruction No. 9A, asserting that it incorrectly stated the law and erroneously applied the "eggshell plaintiff doctrine," which originated in tort law, to a criminal matter. tends that Instruction No. 9A allowed the jury to find him criminally responsible, for second degree felony child abuse without a determination that he intentionally or knowingly caused the victim serious physical injury. See generally
115 "[We review jury instructions in their entirety to determine whether the instructions, taken as a whole, fairly instruct the jury on the applicable law." State v. Malaga,
ANALYSIS
1 16 In reviewing the jury instructions as a whole, we determine that the trial court did not "fairly instruct the jury on the applicable law," see Malaga,
I. The Eggshell Jury Instruction Inaccurately Stated the Law.
A. Elements for a Conviction Under Utah Code
[17 We begin our analysis of the validity of Instruction No. 9A with a discussion about the mental state element of second degree felony child abuse. O'Bannon and the State fundamentally disagree about the mental
118 According to O'Bannon, the required mental state under Utah Code section 76-2-108(1)-(2) depends on whether the crime charged is a "conduct-based crime" or a "result-based crime." See generally
119 O'Bannon illustrates his position with an example of a person who intended to firmly hug a child or infant and did not intend the hugging to result in injury, but who nevertheless caused serious physical injury upon the child or infant. O'Bannon argues that the person's conduct of hugging would be criminalized because the person intended to engage in the hug. O'Bannon asserts that the legislature did not intend for the person's conduct in such cireumstances to be criminalized where he or she did not intend to cause harm, especially not the serious physical injury required for a second degree felony conviction. O'Bannon thus argues that the child abuse statute clearly provides that in order for him to be found guilty of second degree felony child abuse, "the State must prove [beyond a reasonable doubt] that he either intended to cause [the victim] serious physical injury or knew that his conduct was reasonably certain to cause [the victim] serious physical injury."
120 By contrast, the State argues that O'Bannon was correctly convicted of second degree felony child abuse even if the State proved only that "the nature of [O'Bannon's] conduct" was intentional, see
T21 According to the State, O'Bannon could be convicted of second degree felony child abuse if he intended "the nature of his conduct" that "inflict{ed the] serious physical injury" on the victim regardless of whether he intended to actually cause the child a serious physical injury. See id. § 76-2-108(1);
1 22 Thus, the parties' coritrary interpretations of
123 We agree with O'Bannon's interpretation of the statute and determine that, for the jury to find him guilty of second degree felony child abuse, the State had the burden at trial of proving that O'Bannon intended his conduct to cause the victim serious physical injury or of proving that O'Ban-non knew that his conduct was reasonably certain to cause the victim serious physical injury.
When interpreting statutes, we first look to the plain language of the statute and give effect to that language unless it is ambiguous. Thus, a statutory provision should be read literally, unless it would result in an unreasonable or inoperable result. When examining the statutory language we assume the legislature used each term advisedly and in accordance with its ordinary meaning.
Our duty to give effect to the plain meaning of a statute, however, should give way if doing so would work a result so absurd that the legislature could not have intended it. Where a statute's plain language creates an absurd, unreasonable, or inoperable result, we assume the legislature did not intend that result. To avoid an absurd result, we endeavor to discover the underlying legislative intent and interpret the statute accordingly.
State v. Jeffries,
24 Utah Code
Any person who inflicts upon a child serious physical injury or, having the care or custody of such child, causes or permits another to inflict serious physical injury upon a child is guilty of, an offense as follows: (a) if done intentionally or know-. ingly, the offense is a felony of the second degree.... >
A person engages in conduct: (1) Intentionally, or with intent or willfully with respect to the nature of his conduct or to a result of his conduct, when it is his conscious objective or desire to engage in the conduct or cause the result. (2) Knowingly, or with knowledge, with respect to his conduct or to cireumstances surrounding his conduct when he is aware of the nature of his conduct or the existing cireum-stances. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
125 Interpreted literally,
126 Interpreting
T 27 By way of example, literally interpret, ing
28 In our hypothetical example, however accidental it was, the person still inflicted the child's serious physical injury. If inflict meant only a non-accidental action against a person, it would preclude the criminalization of a reckless or criminally negligent action, something that is contrary to our statutes. Inflicting serious physical injury upon a child applies not only to intentional and knowing (second degree felony) child abuse, but also to reckless child abuse, see
129 Furthermore, were we to literally interpret the statute as requiring the State to prove only that one intended to engage in the conduct surrounding the injury to a child, then the general public might not know when conduct could possibly be criminalized in an. instance where a person intended to engage in certain conduct even though they did not intend the serious physical injury that resulted. Instead of that absurd result, it is far likelier that the legislature intended the public to understand that if a person intentionally or knowingly causes serious physical injury to a child, he or she commits a second degree felony regardless of how he or she causes the injury.
1380 We also observe the following directive:
The rule that a penal statute is to be strictly construed shall not apply to [the criminal] code, any of its provisions, or any offense defined by the laws of this state. All provisions of [the criminal] code and offenses defined by the laws of this state shall be construed according to the fair import of their terms to promote justice and to effect the objects of the law and general purposes of Section 76-1-104.
Utah Code Ann. $ 76-1-106 (2008). The general purposes of the criminal code, as described in section 76-1-104, include "[Flor-bidding] and prevent{ing] the commission of offenses" and "[dlefinling]l adequately the conduct and mental state which constitute each offense and safeguard conduct that is without fault from condemnation as erimi-nal." Id. § 76-1-104(1)-(@2). In the context of second degree felony child abuse, applying the conduct portion of the intentional defini
31 Consequently, we agree with O'Ban-non that, to convict him of second degree felony child abuse, the State was required to prove that O'Bannon intended to cause the victim serious physical injury or that O'Ban-non was aware that his actions were reasonably certain to cause serious physical injury to the victim. It follows that it is insufficient for a second degree felony child abuse conviction for the State to prove only that O'Bannon intended to be, or knew that he was, engaged in certain conduct without the requisite intent or knowledge that a serious physical injury would likely result from his commission of that conduct.
B. The Eggshell Plaintiff Doctrine
132 Based upon our determination that the State was required to prove that O'Bannon intended to cause the victim serious physical injury or that he was aware that his actions were reasonably certain to cause the victim serious physical injury, we agree with O'Bannon that Instruction No. 9A improperly applied the eggshell plaintiff doctrine in his criminal case. The "common law tort principle commonly referred to as the 'thin skull or 'eggshell skull doctrine [is that] one who injures another takes the injured as she finds him." Ryan v. Gold Cross Servs., Inc.,
"[ 33 The State modeled Instruction No. 9A on Brackett v. Peters,
134 A critical distinction between Brackett and this case is that Brackett involved felony murder. See id. To obtain a conviction for felony murder, the prosecution was not required to prove that the defendant had the specific intent to kill, only that the defendant had the intent to engage in certain pro-seribed conduct that resulted in the death of another. See id. Thus, the intent requirement for a felony murder conviction is different than that required for second degree felony child abuse, which, as explained above, requires the State to prove intent to cause serious physical injury or that the defendant acted with knowledge of the reasonably certain consequences of his conduct. Compare id., with
85 Instruction No. 9A incorporated the tort law concept of the eggshell plaintiff doctrine: "In criminal law the injurer takes his victim as he finds him," and "[when injury ensues from deliberate wrongdoing, even if it is not an intended consequence, the injurer is responsible at law without the law concerning itself with the precise amount of harm inflicted." These statements distort the mental state requirement that must be proven to sustain a conviction for second degree felony child abuse. As we explained above, a second degree felony child abuse conviction requires a finding that the defendant intended to cause the child serious physical injury or that the defendant knew that by engaging in certain conduct, "he or she was reasonably certain to cause" the child serious physical injury. See
1 36 The State asserts that the Utah appellate courts have applied the eggshell plaintiff doctrine in the criminal law context in State v. Hamblin,
"The state, in a criminal case, is not required to prove beyond a reasonable doubt that the defendant's negligence was the sole proximate cause of the death. When a defendant negligently creates a risk of death to another person, the fact that the person actually died as a result of the combination of that negligence plus some other contributing factor does not serve to exculpate."
Id. at 879 (emphasis in original) (quoting Wren v. State,
37 In Gonzales, this court held that the trial court properly instructed the jury on causation in that it could correctly convict the defendant of manslaughter even if there was another significant contributing factor to the victim's death, such as the victim's intoxication. See
1 38 Gonzales and Hamblin do not support the application of the eggshell plaintiff doe-trine in a criminal case. We agree that Gonzales and Hamblin are instructive in that these cases recognize a basis under Utah law for holding a defendant culpable for causing death even when other factors contributed to the victim's death. See generally Hamblin,
139 Finally, after reviewing the jury instructions in their entirety, we cannot say that, "taken as a whole," they "fairly instruct[ed] the jury on the applicable law." See State v. Malaga,
II; The Erroneous Jury Instruction Constitutes Reversible Error Because O'Bannon Was
+ Prejudiced by Instruction No. 9A.
[ 40 O'Bannon argues, and we agree, that Instruction No. 9A improperly instructed the jury that it could find O'Bannon guilty of second degree felony child abuse without determining that O'Bannon actually intended to cause or knowingly caused the victim serious physical injury. The prosecutor highlighted Instruction No. 9A in closing argument, stating,
In criminal law, the injurer takes the vie-tim as he finds him. That means that if there was [al sub-acute hemorrhage in this [victim's] head, if he causes injury and shakes this child to cause not only the new injury, but a re-bleed of the old, he is responsible for all of the damage that may be because of the re-injury to an old injury.
In closing argument the prosecutor also stated, "All the State is required to show is that [O'Bannon] intended to do the shaking."
$41 Instruction No. 9A, combined with the State's closing argument, instructed the jury that it could find O'Bannon guilty of second degree felony child abuse without determining that he had the requisite intent or knowledge to cause the vietim serious physical injury. Therefore, we agree with O'Ban-non that the court erred by so instructing the jury. However, an error is reversible only if the defendant persuades us that there was "a reasonable probability the error affected the outcome of his case."" State v. Pores,
142 The State contends, even if we determine as we have, that O'Bannon could be convicted of second degree felony child abuse only if he intended to cause serious physical injury or acted knowing that his
143 Proof of a culpable mental state comes by way of circumstantial evidence, and proof of intent or knowledge is an inference that may be drawn by the factfin-der both from direct and from cireumstantial evidence. See James,
A 44 The error in giving Instruction No. 9A was prejudicial because " 'we cannot be sure' that the jury based its" determination on the State's argument that the victim did not fall down the stairs and that O'Bannon violently shook the victim, rather than on the State's closing argument that O'Bannon shook the victim only enough to cause a re-bleed of an older injury. CF State v. Davis,
1 45 Thus, the jury instructions, specifically Instruction No. 9A, did not fairly instruct the jury on the mental state requirement for second degree felony child abuse, and we determine that there is a reasonable likelihood that the trial court's error in giving Instruction No. 9A affected the outcome of the trial. See Perez,
CONCLUSION
146 The trial court erred by giving Instruction No. 9A, which misled the jury as to the mental state required, and which improperly applied the tort concept known as the eggshell plaintiff doctrine to the child abuse statute. Because the error was prejudicial, we reverse O'Bannon's conviction and remand for a new trial.
T 47 WE CONCUR: Gregory K. Orme and Stephen L. Roth, Judges.
Notes
. Because the relevant portions of the Utah Code have not been substantively amended, we cite the current code throughout this opinion for the reader's convenience. See
. "When reviewing a jury verdict, we recite the facts in the light most favorable to that verdict." State v. Carreno,
. Dr. Herman explained that it was not the existence of any one of the victim's specific injuries that led to his conclusion that the victim had been intentionally harmed; rather, it was the combination of the severe injuries. Dr. Herman stated, "[When we look at a child, we do [not] look at one finding in isolation. We have to look at all the findings and create a differential diagnosis for those-the constellation of findings."
. Dr. Herman stated that a fall down the stairs sounds bad, because you hear a thump, and then you hear [a] series of more thumps, but what the literature would suggest is that these are a series of small falls.... A fall from-say we have stairs from the top of this counter onto the floor. A child who just keels over from the top of this counter onto the floor I would say has a much bigger chance of being injured as opposed to going down the steps from here to the floor, because each step sort of is another small fall. So stairway falls can be thought of as a series of small falls.
When asked about what type of injury he would expect to see in a child falling down five to eight carpeted steps, Dr. Herman testified that he would not expect to see very, severe injuries in such a situation, specifically stating, "[A] child who is carried by [his or her] caretaker and falls 'down the steps is more likely to be injured than someone who's just crawling or walking and falling down the steps."
. With the exception of Instruction No. 9A, O'Bannon does not challenge any of the jury instructions on appeal.
. Our interpretation of