State v. Butterfield

• Decision Date: 11 May 1994
• Citation: 874 P.2d 1339,128 Or.App. 1
• Parties: STATE of Oregon, Respondent, v. Bruce Lincoln BUTTERFIELD, Appellant. C90-0869CR; CA A72432.
• Court: Oregon Court of Appeals

Page 1339

874 P.2d 1339

128 Or.App. 1

STATE of Oregon, Respondent, v. Bruce Lincoln BUTTERFIELD, Appellant.

C90-0869CR; CA A72432.

Court of Appeals of Oregon.

Argued and Submitted May 28, 1993.

Decided May 11, 1994.

David E. Groom, Deputy Public Defender, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.

Ann Kelley, Asst. Atty. Gen., argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Atty. Gen., Virginia L. Linder, Sol. [128 Or.App. 2-A] Gen., and Jonathan H. Fussner, Asst. Atty. Gen.

Before ROSSMAN, P.J., and De MUNIZ and LEESON, JJ.

ROSSMAN, Presiding Judge.

Defendant appeals his conviction and sentence for murder by abuse, ORS 163.115(1)(c), ¹ and his conviction for criminal nonsupport. ORS 163.555. We remand for resentencing on the murder by abuse conviction and otherwise affirm.

On appeal from a conviction, we review the facts in the light most favorable to the state. State v. King, 307 Or. 332, 339, 768 P.2d 391 (1989). The victim, a child, was born on December 29, 1987, to a cocaine dependent mother who released her for adoption. On March 11, 1988, she was placed in the foster care of Bev Basaraba. At first, the child was irritable and jittery, but in Basaraba's care she overcame those problems. She ate and slept well, grew at a normal rate, became developmentally advanced in several ways and normal in all others, and was very social. Basaraba introduced the child to defendant's wife, Sarita Gonzalez, who was a pediatric nurse. Thereafter, Gonzalez and defendant initiated adoption proceedings. They took custody of the child in October, 1989.

Later that month, Gonzalez told a friend that the child was depressed and had staring spells that would last up to ten minutes. The friend thought that the staring spells might be caused by petit mal seizures, and recommended that the child be seen by a physician. During November and December, the child reverted to using diapers and a baby bottle, which she had previously outgrown, and her personality ceased to be outgoing. Between December 14 and 31, several people observed the child with bruises and swelling on her face and head. Defendant and Gonzalez usually explained that the child had been having seizures that caused her to fall and hit her head.

On January 2, 1990, Gonzalez called Dr. Schunk, who made an appointment to see the child later that day. At that appointment, Gonzalez told Schunk that the child had suffered a three- to five-minute seizure immediately before she called him. She said that the child had suffered staring spells and, perhaps, petit mal seizures over the past several weeks. She also said that the bruises on the child's forehead were caused by an unwitnessed fall on December 30. The child weighed four pounds less than she had weighed three months earlier when she was placed in the care of defendant and Gonzalez. Schunk diagnosed a progressive seizure disorder, prescribed anti-seizure medication and ordered further tests, which revealed nothing of note.

On Sunday, January 7, defendant called Schunk to report that the child had suffered another seizure. Schunk told defendant to bring the child in the next day. On January 8, when he examined her, Schunk noted that the bruises around her eyes were improving. He considered whether the injuries were caused by child abuse, but ruled that out, in part because he knew Gonzalez was a pediatric nurse. He scheduled the child for a magnetic resonance imaging (MRI) test on January 12 to help diagnose her neurological problems. Schunk phoned defendant and Gonzalez on January 9 and 10, and they reported that the child was playing normally. On January 10, defendant expressed frustration to a friend about the child refusing to answer him when he asked her questions. Defendant also told the friend that he believed the child did things to annoy him, to "get [my] goat." In addition, he said that he felt frustrated about her toilet training problems. At trial, he admitted that on January 10 he had slapped the child's abdomen without "good explanation." Defendant was the primary disciplinarian and used spanking as one form of punishment.

During the early morning of January 11, defendant was up several times with the child. At 8 a.m., defendant called Gonzalez to the child's room, because he was not sure whether the child was breathing. Gonzalez tried to revive her. When Gonzalez could not restore the child's pulse and breathing, she called paramedics. They, too, tried unsuccessfully to revive her. Two of the paramedics observed that defendant was "very cold, very calm, and * * * basically unemotional" following the unsuccessful resuscitation attempts. The paramedics noticed a handprint on the child's abdomen.

Later that day, Dr. Wilson performed an autopsy that revealed two subdural hemorrhages, ² a "patterned injury" to the child's abdomen, an injury to her buttocks, and numerous subgaleal hemorrhages. ³ Although he could not pinpoint the exact number of subgaleal hemorrhages the child had sustained, he estimated that she was "hit many times over * * * time," possibly numbering in the hundreds. Dr. Brady, defendant's expert, testified that the child's head injuries resulted from "quite a number" of blows that had been inflicted at different times. After viewing the autopsy photographs of the child, Deborah Dyer, the charge nurse at the Pediatric Ambulatory Care Outpatient Clinic at the Oregon Health Sciences Center, concluded that the child had sustained "several" injuries that were inflicted at separate and distinct times.

Defendant was indicted for murder by abuse and for criminal nonsupport. The indictment for murder by abuse alleged that defendant

"did unlawfully and recklessly under circumstances manifesting extreme indifference to the value of human life, cause the death of [the child], a child under 14 years of age, by hitting and striking and restraining the said child on the head, abdomen and buttocks; said [defendant] having previously engaged in a pattern and practice of assault and torture of [the child]."

Defendant demurred to that indictment on the ground that the murder by abuse statute is vague in several particulars. The trial court overruled the demurrer.

At trial, Wilson testified that one of the subdural hemorrhages was caused by an injury that occurred within hours of the child's death, and that the other was caused by an injury that occurred one or two weeks before. He testified that those injuries were caused by moderate to severe forces, and that an ordinary household fall could not cause them. He explained that the subdural hemorrhages could have caused the child's seizures, but that the seizures could not have caused the subdural hemorrhages. He also noted that the "patterned injury" to child's abdomen was caused by a moderate to severe force, and that he saw that sort of injury only on an abused child. He estimated that that injury occurred between four and eight hours before the child's death and that the injury to her buttocks occurred about two hours before her death. The degree of force necessary to cause the injury to the buttocks was more than a normal spanking. Wilson opined that the subgaleal hemorrhages were caused by hair pulling and that the subdural hemorrhages were caused by battering. His final diagnosis was that the child had died as the result of traumatic head injuries.

Dr. Bays, a pediatrician specializing in the diagnosis and treatment of child physical and sexual abuse, testified that the wounds to the child's buttocks and abdomen were caused by a significant degree of force. She further stated that child's subdural hemorrhages were caused by "multiple episodes of impact to her head" and that accidental falls did not adequately explain the severity of the injuries. She noted that one research study

"looked at 246 children under the age of five who fell off beds or off of changing tables onto uncarpeted floors. None of them had bleeds into their brain. None of them had any neurologic problems at all."

Bays also pointed to another study that had evaluated 94 children who had sustained subdural hemorrhages and had found that "all [of the subdural bleeds] were due to child abuse[,] except one which was due to an unrestrained motor vehicle accident." All of the medical experts, including defendant's expert, Brady, agreed that the child had been physically abused numerous times over a period of weeks. The jury found defendant guilty of both murder by abuse and criminal nonsupport, and judgment was entered on the verdicts. ⁴

Defendant first contends that the trial court erred in denying his demurrer to the indictment for murder by abuse. He argues that "reckless," as used in the phrase "recklessly under circumstances manifesting extreme indifference to the value of human life," and the phrase "pattern or practice of assault or torture" are vague on their face ⁵ and that, consequently, ORS 163.115(1)(c) is "void for vagueness" under Article I, sections 20 and 21, of the Oregon Constitution, and the Fourteenth Amendment to the United States Constitution. By asserting only a facial challenge to the statute, defendant has improperly advanced his vagueness argument on this appeal. It is well settled, under both the state and federal constitutions, that, unless the exercise of First Amendment liberties is impaired, vagueness challenges are reviewed solely to determine whether application of the contested statute to the defendant's conduct violates the "void for vagueness" doctrine. In Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 1858, 100 L.Ed.2d 372 (1988), the United States Supreme Court said:

"Vagueness challenges to statutes not threatening First Amendment interests are examined in light of the facts of the case at hand; the statute is judged on an as-applied basis. United States v. Powell, 423 U.S. 87, 92-93, 96 S.Ct. 316, 319-20, 46 L.Ed.2d 228 (1975); ...