State v. Bordeaux

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: Armstrong
• Citation: State v. Bordeaux, 185 P.3d 524, 220 Or. App. 165 (Or. App. 2008)
• Decision Date: 21 May 2008
• Docket Number: 030432183; A125123.
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Felix Antonio P. BORDEAUX, Defendant-Appellant.

185 P.3d 524

220 Or. App. 165

STATE of Oregon, Plaintiff-Respondent, v. Felix Antonio P. BORDEAUX, Defendant-Appellant.

030432183; A125123.

Court of Appeals of Oregon.

Argued and Submitted July 31, 2007.

Decided May 21, 2008.

Eric R. Johansen, Senior Deputy Public Defender, argued the cause for appellant.

With him on the briefs were Peter A. Ozanne, Executive Director, Office of Public Defense Services, and Peter Gartlan, Chief Defender, Legal Services Division.

Laura S. Anderson, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before HASELTON, Presiding Judge, and ARMSTRONG and ROSENBLUM, Judges.

ARMSTRONG, J.

Defendant appeals a judgment of conviction for criminal mistreatment in the first degree, ORS 163.205(1)(a),¹ assigning error to the trial court's denial of his motion for a judgment of acquittal. The issue presented is whether defendant's conduct in lying to emergency room personnel about the cause of his son's injuries—namely, that they had been inflicted by defendant—constitutes withholding necessary and adequate medical attention within the meaning of the criminal mistreatment statute. We conclude that it does not and reverse. Because of that disposition, it is unnecessary for us to reach defendant's other assignments of error related to his sentencing.

The material facts are not disputed. D, defendant's six-month-old son, suffered second-degree burns to the side of his face one evening while defendant was home alone caring for him. Blades, D's mother and defendant's girlfriend, was at work at the time. At some point during the evening, defendant called D's grandmother, telling her that he had placed D's head under the tub spout to rinse his hair after he had defecated on himself during a bath, and that his skin was peeling. The grandmother told him to call Blades at work, which he did. He told Blades that he had put D under the shower to rinse him off and that, while drying him off afterwards, he noticed that D's skin had started peeling. He said that he did not think that he had burned D, but was not sure. Blades got a ride home from work and called 9-1-1. The 9-1-1 operator told her to take D to the hospital as soon as possible. Blades asked a neighbor for a ride and Blades, the neighbor, and defendant then took D to the hospital.

At the emergency room, defendant told Bubb, the triage nurse who first saw D, that he had been holding D in the shower and noticed his face peeling afterwards. Bubb immediately had a "very high suspicion" that D's injury arose from abuse. Defendant told Murray, the emergency room doctor who treated D, that he had taken D into the shower but did not notice any burns until he saw that the skin was sloughing off of D's face. He said that D did not cry. Defendant did not tell anyone at the hospital that the injury was nonaccidental. However, because defendant's story did not match the burn that Murray saw on D's face and the injuries appeared suspicious for child abuse, the police were contacted.² D was treated for second-degree burns on his face and transferred to another hospital for "protective admission."

Based on that incident, defendant eventually was charged with two counts of criminal mistreatment in the first degree, one (Count 2) alleging that he had "unlawfully and knowingly cause[d] physical injury to [D] by burning him with a hot liquid," ORS 163.205(1)(b); and the other (Count 3) alleging that he "did unlawfully and knowingly withhold necessary and adequate medical attention from [D] by lying to medical personnel about the cause of [D's] facial burn[.]"³ ORS 163.205(1)(a).

At trial, the state elicited testimony from Murray, the emergency room doctor, as to the implications of giving false information when seeking medical care:

"Q. Would you tell the jury if you get a false history, how can that impact treatment?

"A. Well, obviously the story is the most important thing when you're seeing a patient because the story is what tells you about what has happened to the patient, gives an idea about what the illness could be or what are the causes, what are the things you need to do to help that person's health.

"Q. Is child abuse a recognized medical diagnosis?

"A. Yes, it is.

"Q. If a parent presents to the emergency room and lies about child abuse, about trauma that the child has suffered, how can that impact the child's long[-]term health?

"A. Well, the biggest thing about child abuse is trying to prevent the child from being injured again. If there is not a story that the injuries that were inflicted were done by someone else or intentionally, then you don't—you are deprived of that opportunity to protect that child from being injured again.

"* * * * *

"Q. What if you don't get the chance to diagnose child abuse?

"A. Biggest thing there might be a risk the child would be injured again by another event which might be anything."

Heskett, a CARES pediatrician who examined D the day after his injury, testified similarly. She explained that child physical abuse is a recognized medical diagnosis and that the danger in providing a false medical history to conceal child abuse is that "[t]he child could conceivably[,] if left in the care of that individual, end up with further injuries." She stated that "part of the treatment is to make sure we ensure the safety of the child."

At the close of the state's evidence, defendant moved for a judgment of acquittal with respect to Count 3, arguing that there was no evidence to indicate that defendant prevented any adequate or necessary medical care from being administered to D as contemplated by the statute. The state countered that, by lying about what had happened, defendant withheld from D's medical providers a complete and accurate history, thereby creating a risk that child abuse would not have been diagnosed and treated. According to the state, "[t]he fact that [defendant's] lies didn't work does not mean that he then did obtain adequate medical care." The state did not contend that defendant withheld medical attention for D's burns by his failure to provide an accurate history, only that he withheld medical attention for child abuse. The trial court denied defendant's motion, and the jury returned a guilty verdict on both counts.

On appeal, defendant argues that the trial court erred in denying his motion for a judgment of acquittal on Count 3.⁴ Defendant concedes that the evidence at trial sufficiently established that he lied about the cause of D's injuries, but he contends that lying to medical personnel in the emergency room of a hospital about the cause of the injuries does not, as a matter of statutory interpretation, constitute "withholding" necessary and adequate medical attention from that person for purposes of ORS 163.205(1)(a). According to defendant, all that is required under the statute is that he took D to the hospital for treatment.⁵ The state's position, on the other hand, is that, by withholding information that bore on whether D had been subjected to abuse (that is, that D's injury was not accidental), defendant impeded the ability of medical personnel to diagnose child abuse and therefore to treat D by protecting him from a risk of future injury, thus constituting withholding necessary and adequate medical attention within the meaning of ORS 163.205(1)(a).

Where, as here, the dispositive issue turns on the meaning of a statute, we review the trial court's denial of a motion for a judgment of acquittal for legal error, following the interpretative methodology outlined in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). State v. Stamper, 197 Or.App. 413, 416, 106 P.3d 172, rev. den., 339 Or. 230, 119 P.3d 790 (2005); State v. Rodarte, 178 Or.App. 173, 176, 35 P.3d 1116 (2001).

Our starting point for determining the legislature's intent under the PGE methodology is to examine the text of the statute in context, giving undefined words of common usage their plain meaning. PGE, 317 Or. at 610-11, 859 P.2d 1143. If the legislature's intent is clear from that exercise, our inquiry ends; if it is not, we examine the legislative history of the provision, and, if necessary, maxims of statutory construction. Id. at 611-12, 859 P.2d 1143.

As noted, ORS 163.205(1)(a) provides that a person commits the crime of first-degree criminal mistreatment if the person,

"in violation of a legal duty to provide care for another person, or having assumed the permanent or temporary care, custody or responsibility for the supervision of another person, intentionally or knowingly withholds necessary and adequate food, physical care or medical attention from that other person[.]"

The key, for purposes of this case, is the meaning of the phrase "withholds necessary and adequate * * * medical attention."⁶ Defendant contends that the issue is resolved at the first PGE level by reference to the word "withhold." Because the term is undefined in the statute, we apply its ordinary meaning. State v. Murray, 340 Or. 599, 604, 136 P.3d 10 (2006) ("Absent a special definition, we ordinarily would resort to dictionary definitions, assuming that the legislature meant to use a word of common usage in its ordinary sense.") "Withhold" is defined in pertinent part to mean, "1: hold back: keep from action: CHECK, RESTRAIN * * * 2: to desist or refrain from granting, giving or allowing: keep in one's possession or control: keep back * * *." Webster's Third New Int'l Dictionary 2627 (unabridged ed. 2002). According to defendant, because, "after causing the injuries, defendant did everything he could do to provide medical attention to [D]," including contacting the grandmother for advice and taking D to the emergency room for treatment for his injuries, he did not "withhold" medical attention within the meaning of that word. The flaw in defendant's argument is that it...