State v. Bortner
| Decision Date | 02 February 2004 |
| Docket Number | No. 2003–069.,2003–069. |
| Citation | 150 N.H. 504,841 A.2d 80 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Amanda BORTNER. |
Peter W. Heed, attorney general (David W. Ruoff, assistant attorney general, on the brief and orally), for the State.
Philip D. Cross, of Portsmouth, by brief and orally, for the defendant.
The defendant, Amanda Bortner, appeals her convictions in Superior Court (T. Nadeau , J.) on two class A misdemeanor counts of endangering the welfare of a child. See RSA 639:3, I (1996). We affirm.
The jury could have found the following facts. The defendant began dating Chad Evans in the summer of 2000. In September 2000, she and her nineteen-month-old daughter, Kassidy, moved in with Evans and his son, Kyle.
Shortly thereafter, bruises began appearing on Kassidy and she had difficulty walking. The defendant later told police that these bruises were caused by Evans. According to the defendant, Evans banged Kassidy's head into a closet door three times a week, grabbed Kassidy's face hard enough to leave bruises and held her head under running water to stop her from crying. Evans picked Kassidy up by her face or arm and threw her into a corner hard enough so that she hit her head. He also used his fingers to push down on her trachea until she gagged.
During the time that Evans was abusing Kassidy, the defendant concocted numerous stories to explain Kassidy's bruises. She told her friends and family that Kassidy bruised easily and that she hit her head on a coffee table. The defendant told another friend that Kassidy hit her head on a wall as Evans carried her down the stairs on his shoulders. To explain a particularly noticeable bruise on Kassidy's face, the defendant told several people that Evans grabbed Kassidy by the face in order to keep her from falling off a trampoline. The defendant also explained that a mark on Kassidy's leg was the result of a mishap with a curling iron.
Between September and November 2000, the defendant became concerned that people who observed the bruises on Kassidy would think she was being abused. For this reason, the defendant did not take Kassidy to a doctor and sent her to a babysitter when Evans' parents visited. The defendant did not bring Kassidy to visit the defendant's mother when Kassidy had bruises on her face and did not put her into formal daycare. Instead, the defendant asked her sister, Jennifer Bortner, and her sister's boyfriend, Jeffrey Marshall, to watch Kassidy while she worked.
On November 8, 2000, the defendant dropped Kassidy off at her sister's and Marshall's home at around 2:00 p.m. Marshall watched Kassidy for about two hours and observed her acting normally. At around 5:00 p.m., Evans picked up Kassidy at Marshall's home. Approximately fifteen minutes after he left Marshall's home, however, Evans called Marshall and reported that Kassidy was acting "weird," explaining that Kassidy's eyes were rolling into the back of her head.
Marshall received two more phone calls from Evans that evening. The second time he called, Evans told Marshall that Kassidy fell "flat on her face" after she got out of his car. In his third call, Evans told Marshall that his son hit Kassidy in the face with a baseball. Again, Evans told Marshall that Kassidy's eyes were rolling into the back of her head but then said that she was "fine."
Marshall called Jennifer Bortner at work and described the phone calls he had received from Evans. Later that evening, the defendant visited Jennifer at her place of work. Jennifer told the defendant about the phone calls Marshall had received from Evans. The defendant called Evans, who told her that Kassidy's tongue was out of her mouth and her eyes were glazed over. When the defendant suggested bringing Kassidy to the doctor, Evans told her that they should wait until Kassidy's bruises healed. After speaking with Evans, the defendant told her sister that she was "sick of [her] f–––ing kid constantly getting bruises at his house."
The next morning, the defendant noticed that Kassidy was very still and appeared to be having trouble staying awake. The defendant also observed that Kassidy had a mark under her right eye, redness and swelling around her left eye and some faded bruising around her mouth and chin.
Later that morning, the defendant dropped Kassidy off at her sister's and Marshall's home before going to work. As she brought Kassidy into the bedroom, the defendant commented, Jennifer and Marshall both testified that Kassidy's face was covered with bruises. The defendant and Jennifer left for work shortly thereafter.
Marshall put Kassidy in bed and turned on the television. At around noon, he checked on her and noticed that she was having trouble breathing. Marshall tried to administer CPR and called 911. A detective who arrived at the scene noted extensive bruising on Kassidy's face, chin and abdomen, as well as a cut on her index finger.
Kassidy was pronounced dead upon arrival at York County Hospital in York, Maine. The medical examiner later determined that Kassidy died from multiple blunt force injuries. In addition, the medical examiner found that several of Kassidy's bones were fractured and in various stages of the healing process. Specifically, the medical examiner documented fractures to Kassidy's left leg, both arms and her right hand.
Following Kassidy's death, the defendant was interviewed on four separate occasions by Detective Angela Blodgett of the Maine State Police. During the interviews, the defendant told Detective Blodgett that Evans threw Kassidy into a corner, banged her head on the closet door, pinched her face hard enough to leave bruises and called her a "bitch." The defendant admitted that she did not bring Kassidy to the doctor on the day before her death because she and Evans agreed to wait until Kassidy's bruises went away.
On December 19, 2000, the defendant was interviewed by New Hampshire State Police Sergeant James White. At this interview, the defendant described her observations of Kassidy on the day before her death and the day of her death. In addition, she described Evans as "out of control" when he was disciplining Kassidy. The information she provided to Sergeant White was, for the most part, consistent with the information she previously provided to Detective Blodgett.
On October 23, 2001, after Evans had been arrested for the murder of Kassidy, the State extended an offer of immunity to the defendant. In a letter sent to defense counsel, the State agreed not to prosecute the defendant for "any crimes" related to the death of Kassidy in exchange for Bortner's "cooperation" during the prosecution of Evans. The defendant reviewed the cooperation agreement with her counsel, signed it, and met with the State on November 5, 2001. After meeting with the defendant, however, the State refused to sign the cooperation agreement and charged her with two misdemeanor counts of endangering the welfare of a child. See RSA 639:3, I.
Evans was tried and convicted of reckless second-degree murder for the death of Kassidy. See State v. Evans, 150 N.H. 416, 839 A.2d 8 (2003). At Evans' trial, the defendant testified for the State. She later filed a motion to dismiss the charges against her, arguing that because she complied with the terms of the cooperation agreement, the State could not prosecute her for any crimes related to Kassidy's death. The trial court found that the State reasonably determined that the defendant had breached the terms of the agreement and denied her motion to dismiss.
In November 2002, the defendant was convicted on both counts of endangering the welfare of a child. She was sentenced to two one-year consecutive terms in the house of corrections.
On appeal, she argues that: (1) the trial court should have enforced the cooperation agreement; (2) RSA 639:3, I, is unconstitutionally vague; and (3) the trial court's instructions to the jury were erroneous. We address each argument in turn.
The defendant first argues that the trial court should have enforced the cooperation agreement and dismissed the charges against her. Specifically, she argues that she did not breach the cooperation agreement because her minimizations and inconsistent statements were not material. Moreover, she contends that the trial court's finding that she gave inconsistent statements and minimized Evans' abuse of Kassidy was "irreconcilable with the court's previous determination in Evans' trial" that the testimony she gave before the jury was "primarily consistent" with the information she provided in prior interviews. We reject the defendant's arguments.
While we have not previously addressed the enforceability of an immunity agreement, both the State and the defendant agree that we should apply the principles developed in cases in which we were asked to determine the effect of a prosecutor's alleged breach of a plea bargain. See State v. Little, 138 N.H. 657, 645 A.2d 665 (1994) ; State v. O'Leary, 128 N.H. 661, 517 A.2d 1174 (1986). In that context, we stated:
"When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Little, 138 N.H. at 660, 645 A.2d 665 (quotation and brackets omitted) (citing Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) ). Furthermore, we recognized that "the most meticulous standards of both promise and performance must be met by prosecutors engaging in plea bargaining." Id. at 661, 645 A.2d 665 (quotation omitted). To determine whether the State violated the cooperation agreement in the present case, we "consider whether there was an agreement and, if so, its specific terms as [the defendant] reasonably understood them." Id. at 660, 645 A.2d 665.
Here, the cooperation agreement stated: "In consideration for [the defendant's] complete and...
To continue reading
Request your trial