State v. O'Bannon

• Decision Date: 15 March 2012
• Docket Number: No. 20090241–CA.,20090241–CA.
• Citation: 2012 UT App 71,274 P.3d 992,704 Utah Adv. Rep. 32
• Parties: STATE of Utah, Plaintiff and Appellee, v. Cameron Clint O'BANNON, Defendant and Appellant.
• Court: Utah Court of Appeals

2012 UT App 71

274 P.3d 992

704 Utah Adv. Rep. 32

STATE of Utah, Plaintiff and Appellee,

v.Cameron Clint O'BANNON, Defendant and Appellant.

No. 20090241–CA.

Court of Appeals of Utah.

March 15, 2012.

Margaret P. Lindsay and Douglas J. Thompson, Provo, for Appellant.

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 Utah Code Ann. § 76–5–109(2)(a) (Supp.2011).¹ O'Bannon asserts that the trial court erred in instructing the jury on the eggshell plaintiff doctrine because the instruction incorrectly explained the mental state the State was required to prove to obtain a conviction for second degree felony child abuse. We reverse and remand for a new trial.

BACKGROUND ²

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 doing so, instead insisting that she “hurry and get home.” When the mother arrived at the house, an ambulance had arrived, apparently because O'Bannon had changed his mind and called for help. The paramedics described the victim as “extremely limp and unresponsive” and having “occasional jerking motions,” which are symptoms that are “indicative of some head trauma or possible head injury.”

¶ 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 .” At trial, Dr. Dries testified that “bilateral diffuse retinal hemorrhages with retinoschisis ... is a pattern that is seen in non-accidental trauma.” Dr. Dries testified that the “pattern” of retinal hemorrhages and retinoschisis that he recognized in the victim was consistent with non-accidental trauma, such as shaking or shaking with impact. Dr. Dries also did “not know of any study or case report or child from [his] personal experience that had this pattern of retinal hemorrhages from a fall down six stairs or seven stairs. It takes far greater force for accidental trauma, far greater.” Finally, Dr. Dries did not believe that increased intra-cranial pressure caused the victim's retinal hemorrhages.

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 Utah Code Ann. § 76–5–109(2)(a) (Supp.2011). O'Bannon's stipulation that the victim had suffered a serious physical injury resulted in Instruction No. 9, which instructed the jury to “find [that] this element of the [charged] offense has been prove[n] beyond a reasonable doubt.” See generally id. § 76–5–109(1)(f) (defining “serious physical injury”); id. § 76–5–109(2)(a). Instruction No. 4 tracked the language of second degree felony child abuse, see id. § 76–5–109(2)(a) (“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....”). And Instruction No. 6 defined what it means to be “engag[ing] in conduct” either “intentionally” or “knowingly.” See id. § 76–2–103(1)–(2) (2008). The jury was also provided additional explanations regarding intent in Instructions Nos. 7 and 8. Instruction No. 7 stated, in part,

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.)

¶ 12 After O'Bannon presented his re-bleed defense, the State proposed Instruction No. 9A because it was concerned that O'Bannon's re-bleed theory would confuse the jury about the cause of the victim's severe injuries. In particular, the State wanted the jury to be instructed that it could find O'Bannon criminally responsible for inflicting serious physical injury on the child even if O'Bannon's shaking of the victim caused only re-bleeding of an older injury. Instruction No. 9A stated, “In criminal law the injurer...