State v. Ohnstad, Cr. N

Decision Date19 December 1984
Docket NumberCr. N
Citation359 N.W.2d 827
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Denise N. OHNSTAD, Defendant and Appellant. o. 985.
CourtNorth Dakota Supreme Court

Robert G. Hoy, State's Atty., Fargo, for plaintiff and appellee; argued by Robert G. Hoy, State's Atty., Fargo.

Lanier, Knox & Olson, Fargo, for defendant and appellant; argued by Frank L. Racek, Fargo.

ERICKSTAD, Chief Justice.

A grand jury issued an indictment charging that Denise N. Ohnstad, on or about November 3, 1982, committed the crime of manslaughter or, in the alternative, negligent homicide, in that she recklessly or negligently caused the death of a six-month-old child, Shannon Leigh Ohnstad, "by unknown means sufficient to cause a severe head injury which resulted in her [Shannon's] death." After a six-day trial the jury returned a verdict finding Ohnstad guilty of negligent homicide. She was sentenced by the court to three years imprisonment in the North Dakota State Penitentiary, with all but thirteen months of the sentence suspended subject to supervised probation. Ohnstad appeals from the jury's verdict and the judgment of conviction. We affirm.

Ohnstad has raised several issues concerning errors she alleges occurred during her trial:

I. Did the trial court err in denying defendant's motion for judgment of acquittal?

II. Did the trial court err in admitting testimony concerning a statement made by the defendant that she had, on one occasion prior to November 3, 1982, bitten Shannon on the cheek?

III. Did the trial court err in admitting color slides depicting the child's skull during an autopsy?

IV. Did the trial court err in admitting "cumulative, non-expert" opinion testimony into evidence regarding the extent and possible cause of Shannon's injury?

V. Did the trial court err in not determining the prejudicial effect on the jury of an article published in a local newspaper concerning the trial?

VI. Did the trial court err in refusing to give the defendant's requested jury instructions concerning the definitions of "culpable negligence" and "negligently"?

Facts

Shannon Ohnstad was placed for adoption in the Fargo home of James and Denise Ohnstad on October 22, 1982. On Wednesday, November 3, 1982, at approximately 3:40 p.m., Helen Fennell, a dispatcher for an ambulance service, received a telephone call from a frantic and crying Denise Ohnstad who said, "My baby is not breathing, I think she's dying! " Fennell testified that she told Ohnstad how to perform cardiopulmonary resuscitation on the child: "I counted with her to keep her going and she [Ohnstad] kept saying, 'If Shannon dies, it's all my fault. I have been so mean to her.' "

An ambulance transported Shannon from the Ohnstad home to the emergency room of Dakota Hospital. There she was treated by Dr. George Leher, a pediatrician, who observed that although Shannon was breathing on her own, her blood count was low and her neurological status was not normal and appeared to be deteriorating. Several minutes later, Dr. Leher observed a considerable amount of swelling on the right side of Shannon's head. At trial, Dr. Leher opined that the swelling had occurred secondary to an injury of recent nature, most probably within one hour prior to Shannon's hospitalization. X-rays taken at the direction of Dr. Leher revealed the presence of an extensive fracture of the occipital (back) and right parietal (side) bones of the child's skull. Because a strong possibility existed that Shannon was bleeding inside her head, Dr. Leher referred the child to a neurosurgeon, Dr. Charles Koski.

Shannon was transported to St. Lukes Hospital where a neurological examination, and other testing including a CAT scan and additional skull X-rays, indicated to Dr. Koski that Shannon was also suffering from a rather severe injury to her brain and rather severe brain swelling. Dr. William Norberg, a pediatrician, supervised the treatment of Shannon with Dr. Koski. Dr. Norberg described at trial Shannon's skull X-rays as depicting "a very extensive branching skull fracture in the occipital area and with an extension which we call a running fracture which means that it branched out and extended beyond to involve a very large portion of the skull." Dr. Norberg also described Shannon's injury as "very severe, extremely severe form of head injury and of an extreme magnitude."

Shannon died on November 16, 1982. An autopsy was performed the following day by Dr. Richard Leech, a neuropathologist, who described Shannon's fracture as very extensive and complex. Dr. Leech concluded that Shannon suffered catastrophic neurological damage at the time she sustained the skull fracture and further opined that such damage, more likely within a matter of minutes, resulted in brain swelling. Dr. Leech testified that the immediate cause of Shannon's death was brain swelling and compression of vital structures at the base of the brain and brain stem.

Ohnstad testified that she was home alone with Shannon on the afternoon of Wednesday, November 3, 1982. The following is a summary of Ohnstad's testimony concerning events of that afternoon. Sometime between 2:00 and 2:30 p.m., Ohnstad put Shannon in her crib for a nap. At approximately 3:00 p.m., she picked Shannon up because Shannon had been crying, was very irritable, and would not take a nap. Shannon was fed just prior to being put down for her nap and her diapers were clean. She was taken downstairs to the family room of the Ohnstad home where she continued to cry, whine, and fuss, despite Ohnstad's efforts to appease her for thirty to forty-five minutes by placing her in a swing, then a walker, by trying to interest her in various toys, and finally by walking her around the rooms of the house. This process of walking around the house had quieted Shannon on past occasions. Ohnstad then placed Shannon on the floor of the family room in a kneeling position in front of the fireplace, and went upstairs to the kitchen to feed the family cats. Ohnstad took a drink of water and at that moment she heard a "thud," and returned downstairs to the family room where she found Shannon lying on her back near the fireplace. She picked Shannon up, took her upstairs to the bathroom where Shannon arched her back and threw her arms up; "her eyes were moving around."

The State's theory of the case as argued to the jury is revealed in its cross-examination of Ohnstad:

"Q. [By Mr. Hoy] ... Is it fair to state that after the hour to hour 45 minute time period when Shannon had been crying, had been fussy and you had tried your best to make her stop crying, that you were beginning to lose your patience and becoming frustrated with her because of her continual crying?

"A. Maybe somewhat.

"Q. It is possible, Mrs. Ohnstad, that at the time that you put her in the family room, you were becoming frustrated to the point you may have placed her on the ground with some amount of force?

"A. No sir."

While Shannon was hospitalized, Ohnstad conversed with various hospital personnel and others. Gwen Kraft, a medical social worker, testified that she spoke with the Ohnstads in the emergency room area of Dakota Hospital the day Shannon was brought in. Kraft testified that Ohnstad "admitted that it [the child's crying and being fussy] was getting to her but that she had not spanked the baby." Ohnstad also said she "shouldn't have left the baby alone for a minute."

Sharon Miller testified that she was seated across from the Ohnstads in the intensive care waiting room at St. Lukes on November 3, and heard Denise Ohnstad say two or three times to James, "If only I wouldn't have left the baby to feed the damned cats."

On the following day, November 4, 1982, Ohnstad spoke with Wayne Allard, a pediatric social worker at St. Lukes, and told him that on one occasion she had bitten Shannon on the cheek:

"A. She informed me that she had not intentionally harmed the child. And she also indicated to me or to us that she wanted to be completely honest, that this had been a very difficult baby to care for ever since it had come into her home, and that on one occasion she was quite frustrated and angry and had bitten the child on the cheek.

"Q. Was she, did she provide you any additional specifics about how the child had been difficult to care for in her home?

"A. Just that the baby had been very fussy and whiny and that it was hard to settle her down. She also volunteered that she felt very bad about the biting incident.

* * *

* * *

"Q. Did you get any indication from her as to why it had occurred?

"A. As I recall as we talked about this particular topic, she made reference back to the fact that the baby had been very difficult to care for right from the time they received the baby out of foster care in the Bismarck area. Even on the return to Fargo the baby had been extremely fussy and very hard to settle down."

Ohnstad testified that she made the statements attributed to her by Helen Fennell and Wayne Allard. She testified that on Monday, November 1, 1982, while attempting to change Shannon's diaper, the child began to cry. Shannon usually did cry when placed on her back for a diaper change, however, in the past she would stop crying "as you would pick her up." Ohnstad testified that in this instance Shannon did not stop crying and that she "nipped her [Shannon] on the cheek."

Ohnstad took a leave of absence from work after she and her husband received Shannon. James testified that he made a special effort most days to get home to see Shannon during his lunch hour but could not do so on two or three occasions, including the day the biting incident occurred and the day Shannon was injured.

Photographs which fairly and accurately depict the general layout of Ohnstad's family room were admitted into evidence. They show a fireplace which, according to James, is made of brick; the hearth is twelve inches and the mantel five feet above the floor....

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