State v. Buckley

• Citation: 792 N.W.2d 518,2010 ND 248
• Decision Date: 21 December 2010
• Docket Number: No. 20100033.,20100033.
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Stevie Regina BUCKLEY, Defendant and Appellant.
• Court: United States State Supreme Court of North Dakota

792 N.W.2d 518

2010 ND 248

STATE of North Dakota, Plaintiff and Appellee

v.Stevie Regina BUCKLEY, Defendant and Appellant.

No. 20100033.

Supreme Court of North Dakota.

Dec. 21, 2010.

Lloyd C. Suhr (argued) and Pamela A. Nesvig (on brief), Assistant State's Attorneys, Bismarck, ND, for plaintiff and appellee.

Kent M. Morrow (argued), Bismarck, ND, for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Stevie Regina Buckley appealed from a criminal judgment after a jury found her guilty of manslaughter, possession of drug paraphernalia, possession of marijuana, and minor in possession or consumption of alcohol. We conclude the evidence was sufficient to support the jury's guilty verdict for manslaughter, the trial court appropriately refused to instruct the jury on a civil instruction for proximate cause, and the trial court did not abuse its discretion by denying Buckley's motion in limine to exclude certain evidence. We affirm.

I

[¶ 2] Buckley was the eighteen-year-old mother of a six-month-old infant, K.D. On February 2, 2009, Buckley brought K.D. to the emergency room after noticing K.D. was not breathing properly. Buckley told a doctor in the emergency room, Dr. Robert Bathurst, that K.D. had been sick for one day and had diarrhea. Dr. Bathurst testified K.D. was the sickest child he had seen in thirty-eight years and "was a skeleton." K.D.'s physical condition and symptoms indicated to Dr. Bathurst that K.D. was dehydrated, malnourished, and possibly had pneumonia and sepsis. Dr. Bathurst contacted Dr. Patricio Fernandez, a pediatrician in the intensive care unit. Dr. Fernandez initially noted K.D. had diarrhea and a fever, was dehydrated, and had hypovolemic shock. Chemical test results suggested K.D. was moderately to severely malnourished. After treatment for various medical conditions, Dr. Fernandez testified K.D. suffered multi-organ failure secondary to septic shock, dehydration, and hypovolemic shock. K.D. died on February 4, 2009. An autopsy was conducted the day K.D. died, and the medical examiner, Dr. Robert Massello, opined K.D. died from conditions resulting from chronic starvation and dehydration.

[¶ 3] The Burleigh County Sheriff's Department was notified of possible child abuse and neglect of K.D. on February 2, 2009, the day K.D. was admitted to the hospital. A sheriff's deputy interviewed Buckley at the emergency room about her care of K.D. and history of alcohol and drug use. Buckley told the sheriff's deputy and a social worker she smoked marijuana every other day, including the day before bringing K.D. to the emergency room. Buckley was asked why K.D. had a flat spot on the back of her head, and Buckley replied she normally left K.D. lying down on the bed or couch while she did homework, cleaned, or when K.D. was fussy.

[¶ 4] Another sheriff's deputy conducted interviews of Buckley's acquaintances and friends and obtained search warrants for Buckley's residence while K.D. was inthe hospital. He testified he smelled a strong odor of marijuana immediately upon entering Buckley's residence. The sheriff's deputy found tobacco rolling papers, two plastic bottles converted into smoking devices with marijuana residue on them, and three burnt marijuana cigarettes. In Buckley's garbage can, the sheriff's deputy found an empty 1.75-liter bottle of vodka and an empty one-liter bottle of whiskey. In Buckley's kitchen drawers, the sheriff's deputy found a small, empty bottle of rum. Buckley told the sheriff's deputy the items found in her residence were her own. The day after K.D. died, the sheriff's deputy conducted another search of Buckley's apartment for evidence on child care. He found a nearly full box of baby cereal, several jars of apple juice, and seven cans of unopened baby formula. The sheriff's deputy noted there was no crib, high chair, or other furniture for a baby. The sheriff's deputy found no empty or open formula containers anywhere, including the garbage, and he testified it was clear the garbage cans had not been emptied in awhile.

[¶ 5] Buckley was arrested and ultimately charged with manslaughter in the death of K.D., possession of drug paraphernalia, possession of marijuana, and minor in possession or consumption. Buckley moved to exclude evidence of her marijuana use, evidence of her possession of drug paraphernalia, and medical or anecdotal evidence about the flat spot on the back of K.D.'s head. The trial court denied the motion in limine. Buckley proposed civil jury instructions on proximate cause for the manslaughter charge, which the trial court also denied. During a three-day trial, the jury heard testimony from Buckley, several friends and family of Buckley, three physicians who attended K.D., an expert witness who reviewed K.D.'s charts and testified for Buckley, employees from North Dakota and South Dakota's Women, Infants, and Children program ("WIC"), law enforcement officers and investigators, and day care workers who formerly cared for K.D. The jury found Buckley guilty on all counts. On appeal, Buckley argues there was insufficient evidence to sustain the guilty verdict for manslaughter, the trial court erred in denying her motion in limine, and the trial court erred in refusing to instruct the jury on proximate cause.

II

[¶ 6] Buckley argues the evidence was insufficient to support the guilty verdict on manslaughter because the State failed to prove she acted recklessly with a conscious disregard of risk to K.D., the State's theory of the case improperly rested on omission, and the State did not prove the conditions leading to K.D.'s death occurred within the sixteen days alleged in the criminal information.

[¶ 7] The standard for reviewing a defendant's challenge to the sufficiency of the evidence is well-established:

Appellate review of the sufficiency of the evidence for a jury verdict is very limited. When the sufficiency of evidence to support a criminal conviction is challenged, this Court merely reviews the record to determine if there is competent evidence allowing the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction. The defendant bears the burden of showing the evidence reveals no reasonable inference of guilt when viewed in the light most favorable to the verdict. When considering insufficiency of the evidence, we will not reweigh conflicting evidence or judge the credibility of witnesses.... A jury may find a defendant guilty even though evidence existswhich, if believed, could lead to a verdict of not guilty.

State v. Wanner, 2010 ND 121, ¶ 9, 784 N.W.2d 143 (quoting State v. Dahl, 2009 ND 204, ¶ 6, 776 N.W.2d 37; State v. Demarais, 2009 ND 143, ¶ 7, 770 N.W.2d 246).

A

[¶ 8] Buckley argues there was insufficient evidence she recklessly caused K.D.'s death. Buckley contends she was not aware of K.D.'s condition, did not consciously disregard K.D.'s condition, and did not intentionally withhold nutrition from K.D. The State argues the evidence of Buckley's lifestyle and availability of resources to care for K.D. "strongly supported a finding that Buckley knew how to meet and could meet K.D.'s nutritional needs, but disregarded her duties as a parent in lieu of a more carefree lifestyle."

[¶ 9] "A person is guilty of manslaughter ... if he recklessly causes the death of another human being." N.D.C.C. § 12.1-16-02. A person acts recklessly "if he engages in the conduct in conscious and clearly unjustifiable disregard of a substantial likelihood of the existence of the relevant facts or risks, such disregard involving a gross deviation from acceptable standards of conduct...." N.D.C.C. § 12.1-02-02(1)(c). The definition of "recklessly" suggests "a high degree of risk of which the actor is actually aware." State v. Trieb, 315 N.W.2d 649, 657 (N.D.1982) (quoting ALI Model Penal Code and Commentaries, Part II, § 210.3(1)(a), Comment on Manslaughter at 49 (1980)). States of mind including "knowingly," "intentionally," or "negligently," are not included in the definition of the crime of manslaughter. State v. Granrud, 301 N.W.2d 398, 403 (N.D.1981). The term "conscious" in the definition of manslaughter does not imply "knowingly" or "intentionally." Id.

[¶ 10] The State's evidence demonstrated Buckley knew the level of care K.D. required and was aware K.D. would be at risk if she did not receive that level of care. The State presented evidence on the education and assistance Buckley received from the supplemental food program WIC. The jury heard from a registered nurse, a nutrition educator, a nutritionist, and the WIC coordinator from United Tribes Technical College, all of whom provided Buckley with instruction and literature on feeding and caring for an infant. Buckley received vouchers from WIC to buy formula and baby food and was informed K.D. might require more food than WIC provided in a month. Buckley was aware K.D. could be at risk if she lost weight. A WIC employee, a registered nurse, testified she weighed K.D. at the age of three weeks, and K.D. had lost a significant amount of weight from her birth weight. The employee referred K.D. to a doctor. Buckley did not take K.D. to a doctor after the first WIC visit, but another WIC employee a month later weighed K.D. and found she was at a normal weight. Buckley admitted on cross-examination she knew K.D.'s weight was a concern, because of K.D.'s first visit to WIC when she had lost a significant amount of weight. In addition to testimony on the assistance Buckley received from WIC, the jury heard testimony about the resources available for Buckley as a parent enrolled as a student at United Tribes Technical College. The evidence allowed the jury to find Buckley was aware of the risks of K.D. not receiving adequate care, and resources were made available to Buckley to provide the adequate level of care.

[¶ 11] The jury heard evidence Buckley consciously disregarded the risk of K.D. not receiving an adequate level of care. Buckley told investigators she laid K.D....