State v. Allen

• Decision Date: 12 May 2021
• Docket Number: A166187
• Citation: 311 Or.App. 271,489 P.3d 555
• Court: Oregon Court of Appeals
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Thomas John Robert ALLEN, Defendant-Appellant.

311 Or.App. 271

489 P.3d 555

STATE of Oregon, Plaintiff-Respondent,

v.Thomas John Robert ALLEN, Defendant-Appellant.

A166187

Court of Appeals of Oregon.

Argued and submitted September 23, 2019

May 12, 2021

Marc D. Brown, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Jordan R. Silk, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Janis C. Puracal filed the brief amicus curiae for Forensic Justice Project.

Before Ortega, Presiding Judge, and Shorr, Judge, and James, Judge.

ORTEGA, P. J.

Defendant appeals from a judgment of conviction for first-degree assault and first-degree criminal mistreatment of his girlfriend's three-year-old child. The charges stem from an incident in which defendant called 9-1-1 after he was unable to wake the child, who had to undergo life-saving brain surgery

to treat a subdural hemorrhage and brain swelling. On appeal, defendant primarily challenges the trial court's denial of his pretrial motion to exclude expert testimony that the child was diagnosed with abusive head trauma. We conclude that the trial court did not err in concluding that the evidence was admissible scientific evidence. We also conclude that the trial court did not err in denying defendant's motions for judgment of acquittal and in refusing to give defendant's requested special jury instructions, because defendant's arguments regarding the applicable mental state for the injury element of his charges are foreclosed by State v. Barnes , 329 Or. 327, 986 P.2d 1160 (1999). We reject the remaining assignments of error raised in defendant's opening brief without discussion.

In a supplemental brief, defendant argues that the trial court erred when it instructed the jury that it could reach a nonunanimous verdict and that that error constitutes structural error, requiring reversal. Defendant preserved his objection to the instruction, but the jury returned unanimous verdicts as confirmed through a jury poll. We reject defendant's structural error arguments as foreclosed by State v. Flores Ramos , 367 Or. 292, 478 P.3d 515 (2020), and conclude that any error in giving the erroneous nonunanimous jury instruction was harmless beyond a reasonable doubt based on the unanimous verdicts, as explained in State v. Ciraulo , 367 Or. 350, 354, 478 P.3d 502 (2020).

Accordingly, we affirm.

FACTUAL BACKGROUND

We recount the evidence introduced at trial that is necessary to provide context for the issues we address on appeal. We include the procedural facts and any additional evidentiary context in our analysis of the issues.

At the time of the conduct at issue here, defendant lived with his girlfriend and her two children—her five-year-old daughter and her son, R, who was almost three. Defendant would look after the children while their mother was at work. One morning while he was watching the children, defendant called 9-1-1 and reported that, when he went to wake R, he found the child was not breathing. He further reported that he tried CPR and put R into a cold bath. He also reported that R had recently had pneumonia

and that, at the time of the call, he was breathing, but was not awake, and defendant was unable to wake him. Upon confirming that defendant had called 20 minutes after finding R, the 9-1-1 dispatcher asked why defendant did not call sooner. He responded that it was because he rushed R into a cold bath and performed CPR and "was freaking out."

During the call, defendant also reported that R "was run over by the dogs." Two days before the call, R went over to the family's two Labrador dogs while they were eating, and they knocked him down under their raised dog dishes, pressing his ear to the heater vent. Defendant reported that the dogs had "stomped" on R "really hard." Defendant did not seek medical assistance at the time, and R said that he was okay. R's mother was at work during the incident with the dogs, but defendant and R told her about it that day and she observed that R's ear "looked like it was pinched" and that he had a half-dollar-sized bruise on his back. Defendant later reported that R had also fallen and bumped his forehead on a concrete step a few days before, which gave R a "knot" on his head.

When first responders arrived following defendant's 9-1-1 call, they found R unconscious, pale, and without a detectable pulse. After they performed CPR, R's color improved, and they transported him by ambulance to the hospital. R was diagnosed with an "acute left convexity subdural hemorrhage

," which means that he had subdural bleeding along the left side of his head. R's initial CT scan showed brain swelling and a hemorrhage on the left side of his brain, with indications that both old and new blood was present.

R underwent emergency surgery to decrease the pressure on his brain and remove the blood. His neurosurgeon, Dr. Grewe, also noted that R had bruising on his left ear. The surgery, which involved removing a portion of R's skull, revealed that the hemorrhage consisted of all new blood and no old blood, which indicated an acute, or recent, injury. An acute injury would be one occurring within two days; it would not be a week-old injury. Two doctors who became involved in R's care after his surgery, Dr. Leonhardt and Dr. Lang, testified that, because the CT scan

of R's brain suggested the presence of both old and new blood, it was likely that R had suffered a hyperacute injury—an injury that was hours old rather than days old; that would explain the impression of both older and newer blood on the CT scan, despite there being no "old" blood present, as observed during surgery.

After surgery, the ICU doctor was concerned that R would not survive the night and, because of the nature of his injuries, called Leonhardt for an immediate consult. Leonhardt is a pediatrician at Child Abuse Response and Evaluation Services (CARES) and specializes in treating abuse. Leonhardt observed that R did not appear to have a skull fracture

or lumps on his head, which would indicate a contact injury. Leonhardt took photographs of bruises he observed on R, which included bruising on both the inside and outside of his left and right ear, on his back, and on his elbow, and included petechia—small broken blood vessels—on his lower neck near the collarbone. Leonhardt testified that the ear bruising was particularly concerning, because it was not in an area commonly injured by accident. He recommended additional medical evaluations and referred the case to Lang, another pediatrician who specializes in treating abuse with CARES.

R's bloodwork did not reveal a bleeding disorder, X-rays showed that R had no additional injuries, an MRI of R's brain confirmed the subdural hemorrhage

and indicated a "shear injury" to R's brain itself, and an eye examination found in both R's eyes a few, scattered retinal hemorrhages, or bleeding in the eye. The shear injury to R's brain indicated "that the brain had gone through some acceleration and deceleration." The retinal hemorrhages were less conclusive. Lang explained that, in the case of abusive head trauma

, children can have "very significant" retinal hemorrhages, as in too many hemorrhages to count. R's results showed "more than what we would expect in an accident," but he "certainly [did not] have the retinal hemorrhages

that are too many to count or that would be clearly almost diagnostic of abusive head trauma."

Grewe, R's neurosurgeon, testified that a shear injury is produced by trauma and that the type of injury to R implied that he suffered an acceleration and sudden deceleration. He also testified that he did not believe that R's fall on the concrete step or the incident with the dogs could have resulted in R's injury, because R did not experience loss of consciousness, scalp swelling, or skull fracture

from those incidents and because "it takes a big trauma to produce what he had."

Leonhardt opined that all the results, including the absence of a contact injury, suggested that R's injury was an "acceleration/deceleration injury," which could occur if a child is violently shaken or thrown down onto a soft surface. Leonhardt testified,

"So my opinion or diagnosis at that time was that [R's] clinical presentation, so what brought him to the hospital and the findings that we had seen so far—the bruising, the subdural hemorrhage—were the result—were not the result of an accidental fall that I had been told about two days old—ago—earlier. That they were more consistent with child abuse or that—abusive head trauma

, specifically, for his head injury and then child physical abuse for the bruises."

Lang testified that bruising on R's torso, back, ears, and neck are "significantly associated with abuse." Lang also testified that the bruising and swelling on R's elbow "was outside the range of normal." In looking at R's case, Lang ruled out other causes for R's injury. Ultimately, taking into account the bruising and lack of a contact injury, Lang concluded that his brain injury

"was most consistent with abusive head trauma and child physical abuse." Lang testified that, based on the severity of the injury, R would have become immediately symptomatic, indicating that his injury had to be caused within a few hours before R's first CT scan, which indicated a hyperacute injury. Lang also opined that R suffered "some sort of violent acceleration/deceleration injury" that could not have been caused by R just falling on his own.

The jury found defendant guilty of first-degree assault and first-degree criminal mistreatment by unanimous verdicts. This appeal followed.

EXPERT TESTIMONY

Before trial, defendant moved to exclude, as inadmissible scientific evidence, the introduction of expert testimony regarding "evidence of diagnosis of ‘shaken baby syndrome

’ (SBS) or ‘abusive head...