State v. Killpack

• Decision Date: 16 July 2008
• Docket Number: No. 20060040.,20060040.
• Citation: 191 P.3d 17,2008 UT 49
• Parties: STATE of Utah, Plaintiff and Appellee, v. Jennete KILLPACK, Defendant and Appellant.
• Court: Utah Supreme Court

191 P.3d 17

2008 UT 49

STATE of Utah, Plaintiff and Appellee, v. Jennete KILLPACK, Defendant and Appellant.

No. 20060040.

Supreme Court of Utah.

July 16, 2008.

Mark L. Shurtleff, Att'y Gen., Kris C. Leonard, Laura B. Dupaix, Asst. Att'ys Gen., Salt Lake City, for plaintiff.

Michael D. Esplin, Provo, Margaret P. Lindsay, Orem, for defendant.

DURRANT, Associate Chief Justice:

INTRODUCTION

¶ 1 Following a jury trial, Jennete Killpack ("Killpack") was convicted of child abuse homicide, a second degree felony, in violation of Utah Code section 76-5-208 (the "child abuse homicide statute"). She raises five issues on appeal:

1. Whether the trial court properly instructed the jury regarding the meaning of acting "recklessly" as the term is used in the child abuse homicide statute;

2. Whether the trial court properly rejected Killpack's proposed jury instructions that child abuse homicide cannot result from injuries inflicted by a parent if those injuries are caused by the parent's (a) reasonable child care choices or (b) reasonable treatment of the child's medical condition 3. Whether the trial court properly admitted evidence of Killpack's prior bad acts under rule 404(b) of the Utah Rules of Evidence;

4. Whether the trial court committed cumulative error warranting the reversal of Killpack's conviction; and

5. Whether the trial court abused its discretion during sentencing by refusing to grant Killpack's request for probation.

¶ 2 For the reasons detailed below, we affirm Killpack's conviction and sentence. We will address each of the issues in the order listed above.

BACKGROUND

¶ 3 Jennete Killpack appeals her conviction for child abuse homicide. She was found guilty of causing the death of her daughter, four-year-old Cassandra, by means of forced water intoxication.

I. EVENTS SURROUNDING THE DEATH OF CASSANDRA KILLPACK

¶ 4 In July 1999, Killpack and her husband adopted 21-month-old Cassandra. Some years after the adoption, Cassandra began having behavioral problems, including refusing to eat at mealtimes, hoarding and sneaking food, and urinating at inappropriate times.

¶ 5 In an effort to curb these behaviors, the Killpacks began taking Cassandra to therapy sessions with a psychologist, Dr. Paul Jenkins, who diagnosed Cassandra with Reactive Attachment Disorder ("RAD"). Dr. Jenkins based his diagnosis on the Killpacks' reports of Cassandra's misbehavior, not on any behavior he observed during his sessions with the family.¹

¶ 6 In November 2001, Dr. Jenkins suggested that the Killpacks take Cassandra to a psychiatrist who could prescribe medication for her. Resisting this suggestion, the Killpacks stopped seeing Dr. Jenkins and several months later began taking Cassandra to Cascade Therapy for intensive, nonmedicinal therapy aimed at treating her behavioral problems. According to Killpack, the therapists at Cascade confirmed Dr. Jenkins's RAD diagnosis and recommended that Killpack implement treatment ideas from a book by Nancy Thomas.² The book suggested that parents could cure a child's misbehavior by having the child repeat a particular misbehavior "in excess." The book did not, however, specifically suggest forcing a child to drink water as a treatment for the child's drinking-related misbehavior.

¶ 7 According to Killpack, Cassandra's misbehavior strained their relationship. Killpack responded to the strain by severely disciplining and sometimes injuring Cassandra during several incidents between July 9, 1999, and June 9, 2002. These incidents included Killpack hitting Cassandra on the head with a metal spoon, which caused her head to bleed; pushing Cassandra into the bathroom, where she slipped and hit her face on the toilet, which caused a black eye; backhanding Cassandra; choking Cassandra because she would not eat her food; force-feeding Cassandra; biting Cassandra; forcing Cassandra to drink water to the point that she spit up and urinated uncontrollably; and forcing Cassandra to stand in a corner with her hands over her head until her body shook.

¶ 8 A final confrontation between Killpack and Cassandra occurred on June 9, 2002. Killpack testified that on that day, she forced Cassandra to drink water as punishment for "sneaking" a glass of Kool-Aid. During this punishment, Killpack forced Cassandra to drink water until she refused to drink anymore, at which point Killpack tied Cassandra's hands behind her back, leaned her head back, and forced her to drink through a lidded "sippy" cup. Killpack then untied Cassandra's arms, and when Killpack's husband arrived home, she enlisted him to hold Cassandra's arms while the two of them attempted to force Cassandra to drink yet more water. Though Killpack claims she forced Cassandra to drink no more than 24 ounces of water, medical experts testified that, based on the amount of water in her system at the time of death, Cassandra had been forced to drink more than five times that amount—4 quarts or 128 ounces.

¶ 9 When it became clear that Cassandra could not be forced to drink more water, Killpack and her husband made Cassandra do exercises, including running, jumping, and doing sit-ups. While running, Cassandra tripped several times and eventually fell to the floor. After the exercises, Killpack and her husband made Cassandra stand in the corner, where she vomited and told Killpack that she could not keep her legs from shaking and that her head hurt. Killpack told Cassandra to get a towel to clean up the vomit. Shortly after this, Cassandra collapsed and lost consciousness. Killpack's husband then called 911.

¶ 10 EMTs took Cassandra to the emergency room at Utah Valley Medical Center. Her symptoms included a distended stomach, low body temperature, slow and shallow breathing, low oxygen saturation level, low sodium levels, an excessive amount of fluid in her system, foaming at the mouth and nostrils, and swelling in the brain. Emergency crews treated Cassandra's symptoms in part with an intravenous saline solution and oxygen. Despite their efforts, doctors declared Cassandra brain dead early the next morning as a result of brain swelling, low blood sodium, and low brain oxygen, all of which resulted from being forced to drink an excessive amount of water.

II. TRIAL COURT PROCEEDINGS

¶ 11 On September 17, 2002, Killpack and her husband were charged with child abuse homicide and were bound over for trial. Pursuant to rule 401(b) of the Utah Rules of Evidence, the State filed a notice of intent to introduce evidence of Killpack's previous abuse of Cassandra. The State claimed this evidence was necessary for two reasons: first, to show that Cassandra's death was the result of recklessness and not a mistake or accident, and second, to establish a specific pattern of behavior by Killpack toward Cassandra.

¶ 12 Killpack objected to the proposed evidence, but after a hearing on September 1, 2005, the trial court granted the State's motion to present the evidence at trial. In granting the motion, the trial court made the following findings of fact and conclusions of law: (1) that the evidence of prior bad acts need not fall directly "within one of the exceptions stated in" rule 404(b) because that list was illustrative and meant to be "`inclusive' as opposed to `exclusive'"; (2) that Killpack's actions constituted "evidence of specific instances of the defendant's treatment of Cassandra" and were relevant "to establish a specific pattern of behavior by the defendant toward one particular child"; (3) that "[t]he bad acts [were] relevant and their probative value [was] not substantially outweighed by the danger of unfair prejudice"; and (4) that "[t]he mens rea of recklessness[ ] under the child abuse homicide statute [did] not preclude the State from introducing prior bad acts to prove absence of mistake or accident."

¶ 13 During the six-week jury trial, Killpack presented a two-fold defense. First, she claimed that Cassandra died from accidental head trauma, not water intoxication. Second, she claimed that her actions were excusable because (1) they were used to discipline Cassandra as part of a reasonable treatment program to cure Cassandra's RAD, and (2) they were based on the advice she received from the book by Nancy Thomas and the therapists at Cascade.

¶ 14 Prior to jury deliberations, the trial court refused two of Killpack's proposed jury instructions. The first instructed the jury that parents do not commit child abuse when they injure a child as a result of their reasonable choices in providing the care, custody, and management of the child. The second similarly instructed the jury that parents do not commit child abuse when they injure a child as a result of their reasonable choices in treating the child's medical condition. Though rejecting the instructions proposed by Killpack, the trial court allowed the State's proposed jury instruction that acting "recklessly," as the term is used in the child abuse homicide statute, refers to consciously disregarding a substantial and unjustifiable risk of committing child abuse by inflicting serious physical injury.

¶ 15 On October 11, 2005, after more than six hours of deliberation, the jury found Killpack guilty of child abuse homicide.³ Before sentencing, Killpack presented evidence that the trial court should grant her probation in lieu of prison because of several mitigating circumstances, including the following: (1) she had no previous criminal history; (2) she was amenable to probation under supervision; (3) she had exceptionally good family relationships and did not pose a danger to her other children; and (4) imprisonment would be an excessive hardship on her children.

¶ 16 After hearing Killpack's evidence as to mitigating circumstances, the trial court denied her request for probation and sentenced Killpack to one-to-fifteen years in prison. The trial court noted that both the "catastrophic events of the last week of Cassandra's life" and Killpack's refusal to "acknowledge...