State v. Hocevar

CourtUnited States State Supreme Court of Montana
Citation300 Mont. 167,7 P.3d 329,2000 MT 157
Docket NumberNo. 97-137.,97-137.
PartiesSTATE of Montana, Plaintiff and Respondent, v. Susan HOCEVAR, Defendant and Appellant.
Decision Date19 June 2000

7 P.3d 329
2000 MT 157
300 Mont. 167

STATE of Montana, Plaintiff and Respondent,
Susan HOCEVAR, Defendant and Appellant

No. 97-137.

Supreme Court of Montana.

Argued October 1, 1998.

Submitted November 19, 1998.

Decided June 19, 2000.

As Amended on Denial of Rehearing August 31, 2000.

7 P.3d 333
Jay F. Lansing (argued); Moses Law Firm, Billings, Montana, For Appellant

Hon. Joseph P. Mazurek, Attorney General; John Paulson (argued), Assistant Attorney General; Helena, Montana, Joseph E. Thaggard, Assistant Attorney General, Helena, Montana, Garry P. Bunke, Custer County Attorney, Miles City, Montana, For Respondent.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

s 1 Susan Hocevar (Susan) was convicted by a jury of criminal endangerment with regard to her son Wesley Hocevar's (Wesley) ingestion of an overdose of Benadryl. She appeals from the judgment of the Sixteenth Judicial District Court, Custer County, finding by a preponderance of the evidence that Susan exemplified Munchausen Syndrome By Proxy (MSBP) and smothered her sons Zachary and Mathew, Jr. (Mathew) and considering that conduct in sentencing Susan for the criminal endangerment conviction. The District Court further found that she was not entitled to be classified a first-time nonviolent

7 P.3d 334
offender for sentencing purposes. Susan appeals from the final judgment entered as to the criminal endangerment conviction and from the District Court's denial of Susan's motion to dismiss counts III, IV, and V of the Information upon double jeopardy grounds

s 2 We affirm in part and reverse and remand in part.


In reviewing the District Court's judgment we consider the following issues:

s 3 1. Whether the evidence was sufficient to support Susan's conviction of the felony offense of criminal endangerment under § 45-5-207(1), MCA.1

s 4 2. Whether the jury was properly instructed on the elements of criminal endangerment.

s 5 3. Whether Susan's motion for a new trial based on alleged juror misconduct was properly denied.

s 6 4. Whether the videotapes of interviews with Wesley Hocevar should have been admitted into evidence.

s 7 5. Whether the expert testimony on MSBP was properly admitted.

s 8 6. Whether Susan's motion to sever counts I and II and counts III, IV, and V for separate trials was properly denied.

s 9 7. Whether Dr. David Southall's testimony was properly admitted.

s 10 8. Whether evidence concerning Zachary Hocevar's death was properly admitted pursuant to Rule 404(b), M.R.Evid.

s 11 9. Whether considering the deaths of Mathew and Zachary Hocevar in determining Susan's sentence for criminal endangerment violated Susan's right to due process under Article II, Section 17 of the Montana Constitution.

s 12 10. Whether Susan should have been classified a first-time, nonviolent offender for sentencing purposes.

s 13 11. Whether Susan's renewed motion to dismiss counts III, IV, and V based on double jeopardy grounds was properly denied.

a. Whether Susan's motion to dismiss counts III, IV, and V for insufficiency of the evidence should have been granted, barring further prosecution pursuant to § 46-16-403, MCA.
b. Whether further prosecution of counts IV and V is barred by the hung jury on Count III.
c. Whether further prosecution of counts III, IV, and V is barred by § 46-11-503, MCA?


s 14 On the afternoon of May 21, 1992, Susan was baking cookies at the Hocevar family home in Miles City, Montana. Susan's then four-year-old son Wesley was not feeling well and complained that his head hurt, so Susan put two Children's Tylenol tablets or a dose of Tylenol elixir2 on the coffee table in the living room. At trial, Dr. Pezzarossi, who, with her partner Dr. Young, had been Wesley's and his deceased brother Mathew's pediatrician, testified that Susan later told her that there had been no water on the table. Pezzarossi also testified that Wesley was not able to swallow capsules without water. Susan testified at trial that Wesley had a cup of water. Also on the coffee table was a bottle of Benadryl capsules without a cap. Susan habitually removed the plastic wrappers from Benadryl capsules and put them in a bottle so that she would have quicker access to them at the onset of an allergy attack. When Susan set the Children's Tylenol on the coffee table for Wesley, about ten or twelve 25-milligram Benadryl capsules were remaining in the bottle. Susan told Wesley to take his medicine and resumed baking cookies in the kitchen.

s 15 When Susan asked Wesley if he had taken his medicine, he replied, "I took all my medicine." Susan continued baking cookies and a neighbor stopped by. Susan briefly

7 P.3d 335
visited with him in the living room and noticed, after the neighbor had left, that her Benadryl was gone. The Children's Tylenol was still sitting on the coffee table. Wesley confirmed that he had eaten the Benadryl capsules. Pezzarossi testified at trial that Susan later told her that she did not find pieces of the Benadryl on the floor, which might have indicated that Wesley had not taken all of the Benadryl. Susan testified that Wesley had tried to take other people's medicine on other occasions and that he had previously tried to take more vitamins than he was supposed to take. Susan unsuccessfully tried to phone her husband, Mathew Hocevar, Sr. (Mathew, Sr.), and then instructed the neighbor who had just visited to pick up Mathew, Sr. from work. Susan then called the emergency room and tried unsuccessfully to reach Dr. Young. Mathew, Sr. arrived at home and he and Susan took Wesley to the emergency room at Holy Rosary Hospital in Miles City

s 16 The hospital called Pezzarossi. Wesley's stomach was rinsed and he was given activated charcoal and a laxative to quickly remove the Benadryl from his system. Pezzarossi testified at trial that the Hocevars informed her that Wesley had ingested approximately 250 to 300 milligrams of Benadryl and that Pezzarossi was aware at the time of treating Wesley that the lethal dose for a child of Wesley's weight was 480 milligrams. She further testified that the symptoms of a Benadryl overdose include a fast heart rate, dilated pupils, hallucinations, combativeness, agitation, and hyperactivity. Pezzarossi testified that she observed hallucinations in Wesley. She also testified that she was aware that an overdose of Benadryl could lead to seizures, but the record does not reflect that Wesley suffered any seizures following the overdose. Wesley was placed in the Intensive Care Unit for observation overnight and was released on the following day.

s 17 Pezzarossi was concerned that Wesley's Benadryl overdose might not have been accidental, partly based on her prior experience with Wesley's brother Mathew. Mathew died in December 1991 at the age of ten months. Pezzarossi first saw then six-month-old Mathew in August 1991, shortly after the Hocevars had moved to Montana from California. Susan informed Pezzarossi that Mathew had been on an apnea monitor in California, a device that alarms at a heart beat or respiration abnormality, because another Hocevar child, Zachary, had died of Sudden Infant Death Syndrome (SIDS). Although Mathew appeared normal to Pezzarossi, she therefore decided to prescribe another apnea monitor for him.

s 18 Pezzarossi testified that subsequent to the August office visit, Mathew was hospitalized several times and brought in for office visits several times, for problems including seizures, viral infections, and diarrhea. At the time of Mathew's last office visit on December 5, 1991, Pezzarossi testified that Susan felt that Mathew had been back to normal for several days and that Pezzarossi's examination of Mathew was normal. On December 19, 1991, Pezzarossi was summoned to the emergency room for a code blue (a child undergoing cardiopulmonary resuscitation) involving Mathew. Mathew was unable to breathe on his own and died the following day.

s 19 Pezzarossi feared that Susan exhibited the symptoms of MSBP3 and consulted with specialists about the situation. The Montana Department of Family Services removed Wesley from the Hocevar home on May 22, 1992, the day he was released from the hospital following the overdose. Wesley was place in a foster home for several weeks and then lived with Mathew, Sr.'s parents. After an investigation, Wesley was returned to Susan and Mathew, Sr. in November 1993. Susan gave birth to a girl, Chelsea, in April 1993, who was also placed in a foster home until being returned to Susan and Mathew, Sr. in November 1993. Since then, the Hocevars have become parents to another girl. Susan's sentence has been stayed pending this appeal, and she continues to reside in Miles City with Mathew, Sr. and their three living children.

7 P.3d 336
Procedural Background

s 20 On February 16, 1994, Susan was charged by information with commission of the following offenses:

Count I: Attempted Deliberate Homicide, in violation of § 45-4-103, MCA; or, in the alternative to Count I only;
Count II: Criminal Endangerment, in violation of § 45-5-207, MCA;
Count III: Assault, in violation of § 45-5-201(1)(a) and (3), MCA;
Count IV: Deliberate Homicide, in violation of § 45-5-102(1)(b), MCA; or, in the alternative to Counts III and IV only;
Count V: Deliberate Homicide, in violation of § 45-5-102(1)(a), MCA.

The Information alleged, with regard to counts I and II, that Susan had provided an overdose of Benadryl to Wesley and, with regard to counts III, IV, and V, that Susan had smothered Mathew.

s 21 The District Court granted Susan's motion for a change of venue and a jury trial commenced in Billings on April 17, 1995. The court dismissed Count I after the close of the State's case, finding that there was "insufficient evidence for the jury to find the essential element of having a purpose to cause Wesley's death beyond a reasonable doubt." On May 13, 1995, the jury returned a guilty verdict on Count II, but was unable to reach a...

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