State v. O’BannonState v. O’Bannon
- Reporters:
- , , , ,
- Before:
- Michele M. Christiansen, Gregory K. Orme, Stephen L. Roth
Attorneys:
Mark L. Shurtleff and Ryan D. Tenney, Salt Lake City, for Appellee
Before Judges Orme, Roth, and Christiansen.
OPINION
CHRISTIANSEN, Judge:
¶1 Defendant Cameron Clint O‘Bannon appeals from his jury conviction of child abuse, a second degree felony. See
BACKGROUND2
I. The Victim‘s Injuries
¶2 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.
¶3 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‘Bannon to call an ambulance, but he resisted
¶4 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 sound[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 victim by “rubbing his belly.”
¶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 scan showed “intra-cranial bleeding” or sub-dural hemorrhages of two different ages, i.e., “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 . . . [were] traumatic in origin.”
¶6 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 retinoschisis 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 [e]nd of severity, and have never been reported to have come from a non-fatal accidental cause.”
¶7 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 extensive retinal hemorrhages and retinoschisis.
¶8 Dr. David Christopher Dries, a pediatric ophthalmologist, examined the victim‘s eyes the day after the victim 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 “retinoschisis.”
II. O‘Bannon‘s Defense
¶9 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 victim had a sub-dural hematoma 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 hematoma 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 hematoma” 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 31, which caused re-bleeding of the victim‘s old sub-dural hematoma (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 victim],” did not shake or strike the victim, and “would never hurt [the victim] in any way. . . ,” stating, “[H]e 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 circumstances. 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 circumstantial 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 princip[le] 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
¶14 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. O‘Bannon contends 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
¶15 “[W]e 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, 2006 UT App 103, ¶ 18, 132 P.3d 703 (alteration in original) (internal quotation marks omitted). “Whether a jury instruction correctly states the law presents a question of law which we review for correctness.” State v. Houskeeper, 2002 UT 118, ¶ 11, 62 P.3d 444. If “a jury instruction is erroneous, we will reverse only if the defendant shows a reasonable probability the error affected the outcome of his case.” State v. Perez, 2002 UT App 211, ¶ 22, 52 P.3d 451 (internal quotation marks omitted); accord State v. Davis, 2007 UT App 13, ¶ 6, 155 P.3d 909.
ANALYSIS
¶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, 2006 UT App 103, ¶ 18 (internal quotation marks omitted). We agree with O‘Bannon that Instruction No. 9A confused the mental state required for a second degree felony child abuse conviction by stating that the jury could find O‘Bannon guilty of second degree felony child abuse without determining that he intended to cause or knowingly caused the victim serious physical injury. We also agree with O‘Bannon that he was prejudiced as a result of the erroneous jury instruction.
I. The Eggshell Jury Instruction Inaccurately Stated the Law.
A. Elements for a Conviction Under Utah Code Section 76-5-109(2)(a)
¶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
¶18 According to O‘Bannon, the required mental state under
¶19 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 circumstances 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.”
¶20 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
¶21 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
¶22 Thus, the parties’ contrary interpretations of
¶23 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‘Bannon 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, 2009 UT 57, ¶¶ 7-8, 217 P.3d 265 (citations and internal quotation marks omitted).
¶24
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 knowingly, 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 circumstances surrounding his conduct when he is aware of the nature of his conduct or the existing circumstances. 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.
¶25 Interpreted literally,
¶26 Interpreting
¶27 By way of example, literally interpreting
¶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
¶29 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.
¶30 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.
¶31 Consequently, we agree with O‘Bannon 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 to the victim or that O‘Bannon 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
¶32 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., 903 P.2d 423, 428 (Utah 1995). We determine that Instruction No. 9A was misleading because it confuses the mental state required for a second degree felony child abuse conviction. The instruction incorrectly allowed the jury to find O‘Bannon guilty of second degree felony child abuse when it determined that he intentionally or knowingly shook the victim, rather than requiring the State to prove that O‘Bannon intended to cause the victim serious physical injury or that O‘Bannon knew that his actions were reasonably certain to cause the victim serious physical injury.
¶33 The State modeled Instruction No. 9A on Brackett v. Peters, 11 F.3d 78 (7th Cir. 1993), cert. denied, 511 U.S. 1072 (1994), in which the Seventh Circuit affirmed the murder conviction of a defendant who had raped and assaulted an eighty-five-year-old woman. See id. at 82. The victim‘s death was partially caused by the injuries she suffered during the defendant‘s attack. See id. at 79-80. The Brackett court concluded that it was sufficient that the injuries the defendant inflicted on the victim constituted some of the myriad causes of the victim‘s death and thus stated that “when injury or death ensues from deliberate wrongdoing, even if . . . [death] is not an intended consequence, the criminal law comes down heavily on the defendant without worrying overmuch about the precise amount of harm inflicted.” Id. at 82.
¶34 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 proscribed 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
¶35 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 “[w]hen 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
¶36 The State asserts that the Utah appellate courts have applied the eggshell plaintiff doctrine in the criminal law context in State v. Hamblin, 676 P.2d 376 (Utah 1983), and State v. Gonzales, 2002 UT App 256, 56 P.3d 969. In Hamblin, although the supreme court did not refer to the eggshell plaintiff doctrine, it affirmed the trial court‘s decision not to instruct the jury that it was required to find the defendant, who had been speeding and had a blood alcohol content of .12 percent, the “‘sole proximate cause‘” of the death of the victim, who had been driving with a blood alcohol content of .10%, in order to find the defendant guilty of automobile homicide. See Hamblin, 676 P.2d at 377-79. The supreme court quoted an Alaska Supreme Court case to explain the following:
“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 379 (emphasis in original) (quoting Wren v. State, 577 P.2d 235, 240 (Alaska 1978)).
¶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 56 P.3d 969, ¶¶ 20-21 (“A defendant‘s acts may be found to be the proximate cause of the victim‘s death even if the victim ‘actually died as a result of the combination of [the defendant‘s acts] plus some other contributing factor.‘” (alteration in original) (quoting Hamblin, 676 P.2d at 379)).
¶38 Gonzales and Hamblin do not support the application of the eggshell plaintiff doctrine 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, 676 P.2d at 379; Gonzales, 2002 UT App 256, ¶¶ 20-21. In this case, however, Instruction No. 9A is not comparable to
¶39 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 Malaga, 2006 UT App 103, ¶ 18 (internal quotation marks omitted); see also State v. Harper, 2006 UT App 178, ¶ 14, 136 P.3d 1261 (“If taken as a whole [the instructions] fairly instruct the jury on the law applicable to the case, the fact that one of the instructions, standing alone, is not as accurate as it might have been is not reversible error.” (internal quotation marks omitted)). We acknowledge that the jury was instructed that it was “justified in inferring that a person must have intended the natural and probable consequences of any act purposely done by him or her,” and that it could infer intent from circumstantial evidence such as “a voluntary act which produces as its natural and probable consequence an unlawful result.” Although these instructions are consistent with Utah law, see, e.g., State v. James, 819 P.2d 781, 789-90 (Utah 1991) (stating that “[an] inference is made that the natural consequences of that act were intended to occur” and that “intent is of necessity proven by circumstantial evidence“); State v. Sisneros, 631 P.2d 856, 859 (Utah 1981) (“[A] person is presumed to intend the natural and probable consequences of his acts.” (internal quotation marks omitted)); State v. Robertson, 2005 UT App 419, ¶ 15, 122 P.3d 895 (“[T]he intent to commit [a crime] is a state of mind, which is rarely susceptible of direct proof, it can be inferred from conduct and attendant circumstances in the light of human behavior and experience.” (internal quotation marks omitted)), they do not compensate for Instruction No. 9A, which confuses the mental state element for a second degree felony child abuse conviction.
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 victim as he finds him. That means that if there was [a] 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 victim serious physical injury. Therefore, we agree with O‘Bannon 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. Perez, 2002 UT App 211, ¶ 22, 52 P.3d 451. “An error is prejudicial if it tends to mislead the jury to the prejudice of the complaining party or insufficiently or erroneously advise[s] the jury on the law.” State v. Penn, 2004 UT App 212, ¶ 28, 94 P.3d 308 (alteration in original) (internal quotation marks omitted).
¶42 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
¶43 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 factfinder both from direct and from circumstantial evidence. See James, 819 P.2d at 789-90. A jury can infer intent or knowledge from the defendant‘s acts, conduct, and remarks as well as from the circumstances surrounding the alleged crime. In this case, the State sought to prove O‘Bannon‘s mental state through circumstantial evidence. No direct evidence was presented to prove O‘Bannon‘s intent to cause the victim‘s serious physical injury or to prove O‘Bannon‘s knowledge that serious physical injury was reasonably likely to result from his conduct. While the State‘s witnesses testified and common sense indicates that violent shaking of a child provides for a substantial and unjustifiable risk of serious physical injury to that child, the fact that the victim had a prior injury and may have been especially vulnerable to further bleeding in his brain demonstrates that O‘Bannon could have caused the victim serious physical injury without the requisite intent to do so. Though O‘Bannon did not present evidence that he unintentionally caused the victim‘s serious physical injuries, (i.e., shook the victim just a little bit), the State suggested that very defense by arguing that the jury could find O‘Bannon guilty of second degree felony child abuse if it found that he shook the victim only enough to cause a re-bleed of the old injury in the victim‘s brain.
¶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, 2007 UT App 13, ¶ 13, 155 P.3d 909 (reversing a conviction and stating, “‘we cannot be sure’ that the jury based its drug-free zone determination on the public parking lot instruction and not on the erroneous bicycle path instruction” (quoting State v. Dunn, 850 P.2d 1201, 1209 (Utah 1993))).
¶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, 2002 UT App 211, ¶ 22.
CONCLUSION
¶46 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.
Michele M. Christiansen, Judge
¶47 WE CONCUR:
Gregory K. Orme, Judge
Stephen L. Roth, Judge
Notes
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.”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.