State v. Hays

• Decision Date: 15 July 1998
• Citation: 155 Or.App. 41,964 P.2d 1042
• Parties: STATE of Oregon, Respondent--Cross-Appellant, v. Loyd Edgar HAYS, Appellant--Cross-Respondent. 95030713A; CA A93814 (Control), A93844.
• Court: Oregon Court of Appeals

Page 1042

964 P.2d 1042

155 Or.App. 41

STATE of Oregon, Respondent--Cross-Appellant, v. Loyd Edgar HAYS, Appellant--Cross-Respondent.

95030713A; CA A93814 (Control), A93844.

Court of Appeals of Oregon.

Argued and Submitted May 29, 1998.

Decided July 15, 1998.

Peter Gartlan, Deputy Public Defender, argued the cause for Appellant--Cross-Respondent. With him on the briefs was Sally L. Avera, Public Defender.

Richard D. Wasserman, Assistant Attorney General, argued the cause for Respondent--Cross-Appellant. With him on the brief were Hardy Myers, Attorney General, and Virginia L. Linder, Solicitor General.

Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.

WARREN, Presiding Judge.

Defendant appeals his conviction for criminally negligent homicide, based on his failure to seek medical treatment for his son, who died of acute leukemia. In accordance with his religious faith, defendant treated his son solely by prayer and the laying on of hands. The court sentenced him to five years probation, with special conditions that he report to his probation officer if any child in his custody suffers from a life-threatening disease or other physical condition and that he then permit examination of the child and removal for medical treatment. The state cross-appeals the sentence, asserting that the trial court improperly made a downward departure from the guidelines sentence of 16 to 18 months incarceration. We affirm on the appeal and the cross-appeal.

Defendant is a member of the Church of the First Born, a small Pentecostal denomination that has approximately 12,000 to 15,000 members throughout the country. An essential tenet of the denomination is that God is operational in the life of each believer, including when he or she is sick. According to church doctrine, if members pray for one who is ill, God will honor those prayers and restore the member to health. The church permits the use of purely corrective devices, such as eyeglasses or crutches, and it allows its members to undergo medical examinations when required. It does not, however, allow medical treatment.

Defendant is a long-time member of the church and is one of the three elders of the congregation in Brownsville, where he lives. He has never in his life taken a pill or received an injection, although at times he has suffered excruciating pain. At one point the pain so interfered with his work as a roofer that the Vocational Rehabilitation Department referred him to a physician for an examination. The physician diagnosed kidney stones and a number of related problems, including that defendant has only one functioning kidney, and advised him that failure to allow medical treatment could lead to kidney failure and death. Despite that warning, defendant did not seek treatment.

Defendant's eight year old son, Anthony, became ill in October 1994, while he was returning with the family from an outing to Oklahoma. As a result of the sickness, they returned to Oregon sooner than they originally intended. After a temporary improvement in his condition on his return, Anthony's condition became considerably worse. At the child's request, defendant and the other elders of the church prayed over him. By the end of October, defendant suspected, based on his reading of medical literature, that Anthony was suffering from leukemia. The evening of November 3, a deputy sheriff came to check on a report that Anthony might be sick. Defendant told the sheriff that Anthony was sick but refused to allow him to see the child. The next morning the elders again prayed over Anthony, who died in defendant's arms soon afterwards. According to the record, leukemia in children is readily treatable, with a 98 percent chance of remission after a month of treatment and a 70 to 85 percent chance of survival for at least a significant number of years. There is no chance of survival for untreated leukemia; death from the disease involves severe pain.

Defendant and his wife were subsequently indicted for manslaughter in the first degree, manslaughter in the second degree, and criminally negligent homicide. The jury acquitted defendant of manslaughter but convicted him of criminally negligent homicide; it acquitted his wife of all counts. The issue that underlies all of defendant's arguments on appeal is the relationship between his religious faith and the requirements of the applicable statutes.

Defendant first argues that the statutory definition of criminally negligent homicide is unconstitutionally vague. See State v. Cornell/Pinnell, 304 Or. 27, 29-30, 741 P.2d 501 (1987). ORS 163.145 provides that a person commits criminally negligent homicide when the person causes the death of another person "with criminal negligence." ORS 161.085(10) defines "criminal negligence" to mean that

"a person fails to be aware of a substantial and unjustifiable risk that the result will occur or that the circumstances exists. The risk must be of such nature and degree that the failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation."

The indictment charged that defendant committed the offense by withholding necessary medical care from Anthony when, as his parent, defendant had a duty to provide that care for him.

Defendant points out that the criminal mistreatment statutes also penalize failing to provide or withholding necessary medical attention when there is a legal duty to provide it, but that they provide a defense for treatment by spiritual means. Under ORS 163.200(1)(a), it is criminal mistreatment in the second degree to withhold medical treatment with criminal negligence; under ORS 163.205(1)(a) it is criminal mistreatment in the first degree to do so intentionally or knowingly. The basis of defendant's argument is that the defense for treatment by spiritual means does not apply to ORS 163.145. As a result, defendant asserts, a person cannot know when conduct that the criminal mistreatment statutes permit has crossed over into conduct that the criminally negligent homicide statute forbids.

ORS 163.206(4) provides that ORS 163.200 and ORS 163.205 do not apply:

"To a person who provides [a] * * * dependent person with spiritual treatment through prayer from a duly accredited practitioner of spiritual treatment as provided in ORS 124.095, in lieu of medical treatment, in accordance with the tenets of a recognized church or religious denomination of which the * * * parent or guardian of the dependent person is a member or an adherent[.]"

A person who treats a dependent child through prayer, thus, has a defense to a charge of criminal mistreatment, a defense that does not apply to a charge of criminally negligent homicide. ¹ Thus, so long as the child does not die, the parent has a defense to a criminal charge; once the child dies, the defense is gone. As a result, it is impossible, defendant argues, to tell at any particular moment whether his conduct was permissible or criminal. He asks whether his failure to provide medical care for Anthony was criminal

"when the family traveled to Oklahoma? in Oklahoma? on the return from Oklahoma? while the victim was still alive in Oregon? ten minutes before the victim's death? or only at the time the victim died? How can a person of average intelligence possibly know when the exact conduct, which appears ostensibly privileged by statute, becomes criminal? How can different juries make that determination on a consistent basis?"

Defendant relies on Minnesota v. McKown, 475 N.W.2d 63 (Minn.1991), and Hermanson v. Florida, 604 So.2d 775 (Fla.1992), to support his position. In McKown, the Minnesota Supreme Court first held that a statutory defense similar to ORS 163.206(4) did not apply to a charge of manslaughter. It then determined that that failure violated the Due Process Clause of the Fourteenth Amendment because it failed to give adequate notice of when the protected conduct became criminal and because it first informed citizens that certain conduct was permissible and then prosecuted them for engaging in that very conduct. In Hermanson, the Florida Supreme Court adopted similar reasoning. ²

We cannot agree with the Minnesota and Florida courts. We have previously held that "criminal negligence," when used to define a culpable mental state for the purposes of the child neglect statutes, is not unconstitutionally vague. State v. Mills, 52 Or.App. 777, 629 P.2d 861, rev. den 291 Or. 662, 639 P.2d 1280 (1981). We recognize that it may be impossible to define in advance all of the ways in which a person's actions can be a gross deviation from the standard of care of a reasonable person. That difficulty does not mean, however, that the legislature may not penalize such a gross deviation. Rather, the legislature responded to the inability to give an exhaustive list of impermissible conduct by adopting an objective standard-what a reasonable person would do-for evaluating what a person in fact did. 52 Or.App. at 781-84, 629 P.2d 861. Defendant was not required to guess what someone in the future might think would have been a better thing for him to do. He was held to a standard that derives from the community of which he was a part. The statute in itself gave sufficient guidance to defendant in determining what the law required, to a court in determining whether the evidence would permit a jury to find that he violated those requirements, and to a jury in making that finding.

Defendant's argument, however, goes one step further than we needed to go in Mills. He insists that the defense that ORS 163.206(4) provides to a charge of criminal mistreatment makes it impossible for him to tell when his permissible actions have crossed the line into the impermissible. The defense permits him to do things that would otherwise constitute criminal mistreatment, but it does not permit him to do things that would constitute criminally negligent homicide. Defendant's argument...