State v. Hilding

• Decision Date: 29 June 2022
• Docket Number: A169256
• Citation: 320 Or.App. 487,514 P.3d 79
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Brandon Michael HILDING, Defendant-Appellant.
• Court: Oregon Court of Appeals

320 Or.App. 487

514 P.3d 79

STATE of Oregon, Plaintiff-Respondent,

v.Brandon Michael HILDING, Defendant-Appellant.

A169256

Court of Appeals of Oregon.

Argued and submitted October 28, 2020.

June 29, 2022

George W. Kelly, Eugene, argued the cause and filed the briefs for appellant.

Christopher A. Perdue, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.

ORTEGA, P. J.

Defendant appeals from a judgment of conviction for two counts of first-degree assault (Counts 1 and 2), one count of third-degree assault (Count 3), and nine counts of first-degree criminal mistreatment (Counts 4 to 7 and Counts 10 to 14). Those charges stem from injuries that the state alleged defendant caused his son, C, when C was between the ages of two and five months old. Defendant raises four assignments of error on appeal and one supplemental assignment of error.

In his first two assignments, defendant challenges the trial court's denial of his motions for judgment of acquittal on Count 2 and on Counts 11 to 14. With respect to Count 2, first-degree assault, the state adduced sufficient evidence of a serious physical injury and thus the court did not err in denying defendant's motion. However, with respect to Counts 11 to 14, first-degree criminal mistreatment, the trial court erred in denying defendant's motion, because the legal theory on which the court relied is not legally cognizable under the Supreme Court's construction of ORS 163.205(1)(a) articulated in State v. Baker-Krofft , 348 Or. 655, 662, 239 P.3d 226 (2010). We thus reverse those counts.

In his third assignment of error, defendant challenges the trial court's refusal to give his requested jury instruction for first-degree assault, which included a criminal negligence mental state for the result element. Based on State v. Owen , 369 Or. 288, 505 P.3d 953 (2022), we agree with defendant that the trial court erred, and we further conclude that, under the circumstances of this case, that error was not harmless. We thus reverse and remand Counts 1 and 2.

In his fourth assignment of error, defendant challenges the court's limitation on the testimony of his expert, Dr. Hyman. Specifically, the court excluded Hyman's diagnosis that C had "temporary bone fragility" and determined that Hyman was not qualified to render a child-abuse diagnosis. We conclude that the trial court did not err.

Finally, in his supplemental assignment of error, defendant argues that the trial court plainly erred in giving a nonunanimous jury instruction and that all of his convictions should be reversed as a result. The state concedes that defendant is entitled to reversal on the nonunanimous counts, Counts 2 and 7, under Ramos v. Louisiana , 590 U.S. ––––, 140 S. Ct. 1390, 206 L.Ed.2d 583 (2020), and State v. Ulery , 366 Or. 500, 504, 464 P.3d 1123 (2020). We agree and accept the state's concession. As for the remaining convictions by unanimous verdict, we conclude that any error in giving the nonunanimous jury instruction was harmless. State v. Flores Ramos , 367 Or. 292, 478 P.3d 515 (2020).

In sum, we reverse and remand defendant's convictions on Counts 1, 2, and 7, reverse his convictions on Counts 11 through 14, remand for resentencing, and otherwise affirm.

For purposes of reviewing the trial court's denial of defendant's motions for judgment of acquittal, "we view the evidence in the light most favorable to the state." State v. Nickles , 299 Or.App. 561, 562, 451 P.3d 624 (2019). We provide the following background facts with that standard in mind. To the extent we must consider other facts, or with a different standard in mind, to address defendant's other assignments of error, we do so in the analysis of those other assignments.

Defendant is C's father. C was born prematurely at 33 weeks in November 2017. His birth was uncomplicated, and he showed no signs of injury from the birth process; he did not show any signs of pain or weakness in his extremities or any sign of a skull fracture

or a subdural hematoma. Dr. Lam, who treated C while he was in the hospital after his premature birth, testified that the injuries that C suffered between the ages of two and five months would not have been caused by his birth. While C was in the hospital following his birth, both defendant and C's mother received education on how to calm a crying baby, the consequences of shaking a baby, fall risks to a baby, and safe sleep for a baby.

C and his parents lived with friends for about six weeks after his birth. During that time, defendant saw bruises on C's arm, and he showed C's mother. C's mother testified that C did not have the bruise when she left C with defendant. Also during this time, C's mother, in a follow-up medical appointment after C experienced jaundice

, asked about bleeding that she saw in C's mouth, but the nursing assistant did not find a source of trauma.

C and his parents next lived with C's maternal grandparents for about a month. C's grandmother testified that C cried a lot, was anxious and hard to soothe, that defendant would wear headphones at night and not attend to C when he cried, and that, at some point, she saw bruising on C's arm, leg, and on his head over his eyebrow. C also suffered bruising to his mouth when defendant forcefully held a pacifier in C's mouth when he would not stop crying. C's grandfather also saw bruises on C's arm and leg like "somebody had grabbed him too hard." C's grandmother also thought that defendant was a little too rough with C and that he swaddled C too tight.

On January 22, 2018, C's mother took him to the emergency room because he was sick and having difficulty breathing. C was diagnosed with bronchiolitis

, or an inflammation of the lungs, and required treatment in the hospital. C's mother reported that he had been sick for several days, was coughing, and had not been feeding well. Defendant expressed a concern that C had cracked ribs from coughing because he could feel some crackling in his torso. The treating doctor, Dr. Dourgarian, found defendant's question strange and troubling, because it would not be normal for a baby to have crackling over their ribs or to have a rib injury from coughing. When asked, C's parents did not report that C had fallen or had an injury. Dourgarian testified that rib fractures in infants are very abnormal because their ribs are mostly cartilage and difficult to break and "it takes quite a bit of force to break an infant's ribs." Dourgarian followed up with a regular x-ray, mostly because of C's breathing difficulty. On the first report, the radiologist could not rule out rib fractures. A second x-ray was taken, and the second radiologist did not see signs of rib fractures. C's mother again took C to the ER a week later on January 30, because of a cough, congestion, and difficulty breathing. The hospital again took chest x-rays of C.

Also around the end of January, C's parents moved out of C's grandparents’ house and began living with a friend, Ray, where they stayed until April. While they lived there, C's mother worked, but defendant did not and would watch C, unless C's mother found someone else to babysit. Ray testified that defendant would swaddle C too tight and would be forceful with holding the bottle to C's mouth when C refused the bottle. Ray also saw bruises on C's forehead and arm while he was living there. During that time period, C's mother also twice noticed bruises on C; once he had bruises "all over his head," which defendant attributed to C "head butting" his head into defendant's chest, and he attributed another bruise to C flipping himself out of defendant's lap.

On February 18, while Ray was home with defendant and C, C stopped breathing. Ray called 9-1-1. On recommendation of the 9-1-1 operator, defendant performed CPR on C for about 20 seconds. When the ambulance arrived, C was crying, breathing normally, and his color was good. C did not have swelling or bruising to his chest from the CPR, and he was not showing signs of pain. C's mother arrived before the ambulance left, and she rode with C to the hospital. At the hospital, the treating doctor could not find a medical reason for the event. He testified that those types of episodes are called a "brief resolved unexplained event" or BRUE. During that hospital stay, C again had x-rays of his torso.

On February 20, C's mother called his primary doctor, Dr. Wherry, because C was vomiting, not eating well, and had some cough

and congestion. Wherry reported that C was irritable and screaming but otherwise "looked very well." On March 8, C's mother called again, concerned that C continued to be sick. A different doctor treated C, and she noted that C's soft spot felt a little more full, and C had a small bruise on his forehead. Defendant told the doctor that C had rolled onto the floor from a mattress that was sitting on the floor.

In April, C's parents moved in with Hernandez. During that time, C's mother worked two jobs and defendant primarily watched C. Hernandez was also often home with her own child at the same time and observed that defendant was rough with C and that C would cry a lot and defendant would ignore C's cries. She testified that once defendant came home drunk, picked up C, who was crying, and took him into the bedroom for a nap, while talking aggressively to C. When C got up from the nap, he had a bruise on his face

from the bottom of his eye to his cheek. C's mother also related the same incident and that defendant could not explain the bruise. Hernandez also saw C with a lip injury and with a bruise on his ear about the size of a quarter.

On April 3, C's mother called Wherry, concerned that C was vomiting and not able to keep any food down. On advice from Wherry's office, she took C to the emergency room. The hospital believed the cause was a viral infection and gave C a...