State v. Reim
| Decision Date | 22 April 2014 |
| Docket Number | No. DA 13–0050.,DA 13–0050. |
| Citation | 323 P.3d 880,374 Mont. 487 |
| Parties | STATE of Montana, Plaintiff and Appellee, v. Michael Kenneth REIM, Defendant and Appellant. |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
For Appellant: Wade Zolynski, Chief Appellate Defender, Koan Mercer, Assistant Appellate Defender, Helena, Montana.
For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena, Montana, Leo J. Gallagher, Lewis and Clark County Attorney, Tara Harris, Deputy County Attorney.
¶ 1 Michael Kenneth Reim (Reim) appeals from the findings of fact, conclusions of law and verdict of the Montana First Judicial District Court, Lewis and Clark County, finding him guilty of aggravated assault related to injuries incurred by Reim's son, A.R. We affirm.
¶ 2 We review the following issues:
1. Did the District Court err when it concluded Reim had waived his right to a jury trial?
2. Should this Court consider whether Reim's absence from the deposition of a State witness violated his right to be present at all critical stages of the proceedings?
3. Does the District Court's failure to identify which mental state definition it was applying require reversal of Reim's conviction?
¶ 3 On Sunday, January 30, 2011, Reim had been caring for his five-month old son, A.R., while A.R.'s mother, Rebecca Stringer (Stringer), was at work. Reim and Stringer had a troubled relationship. Reim had been staying in Stringer's garage beginning on or about January 17, 2011, and she had only recently allowed him to move back into the house. When Stringer returned home from her shift that day, she noticed A.R. was lying on the couch, gasping for air. When she picked him up, he began seizing. She became very upset and asked Reim how long A.R. had been acting this way. Reim said he did not know what was wrong with A.R. and that the symptoms had begun about 30 to 45 minutes earlier. Stringer directed Reim to call 911. In the recorded 911 call, Reim described that A.R. was suffering from seizures,difficulty breathing, and unfocused vision.
¶ 4 An ambulance arrived to transport A.R. to the emergency department at St. Peter's Hospital. The emergency department staff did not observe any further seizures. A slight redness in A.R.'s ears was diagnosed as an ear infection. Since Stringer told the doctor that A.R. had had a slight fever during the morning and a bit of a runny nose, the doctor concluded A.R. had suffered a febrile seizure. Febrile seizures are common in young children and result from a rapid change in body temperature. The hospital discharged A.R. into his parents' care with a prescription for Tylenol and the antibiotic Amoxicillin. While at the hospital, Reim told Stringer that he felt responsible for A.R.'s problems because A.R. had been in his care.
¶ 5 Stringer said that after leaving the hospital that evening, A.R.'s health never seemed right. He appeared lethargic, did not respond normally, ate less than normal and was generally fussy and inattentive. In the middle of the following night, after A.R. had been in Reim's care during the day, Stringer noticed that A.R. was breathing funny and vomiting. She and Reim returned with A.R. to the emergency room for treatment. The staff examined A.R., administered medication for the vomiting, and discharged him into his parents' care for a follow-up examination the next day with Dr. Keefe.
¶ 6 Dr. Keefe examined A.R. on February 1, 2011. She did not notice any outward signs of trauma. She observed that he still had a mild ear infection that seemed to be improving with treatment. He was fussy, but consolable. She arranged to have A.R. return to the clinic in a few weeks for some routine shots and sent him home to continue the Amoxicillin.
¶ 7 On the morning of February 2, 2011, while Stringer and her mother, Diana, were caring for A.R., they noticed he was having a seizure and was having difficulty breathing. Stringer called Reim, who had departed with the family's only car to take Diana's partner to a court date, and he drove Stringer and A.R. to the emergency room. At the hospital, A.R. was treated by Dr. Rabold and Dr. Knowles, who called Dr. Keefe to assist. They ordered a number of tests, including central nervous system (brain) imaging that began with a non-contrast CT (computed tomography) scan.
¶ 8 Dr. Murphy was the radiologist at St. Peter's Hospital. Although she did not testify at trial, various experts reviewed her reports. Her report as to the CT scan diagnosed A.R. as suffering from both chronic and acute subdural hematomas. She cautioned that A.R. could be a victim of child abuse. A subdural hematoma is an accumulation of blood caused by bleeding between the hard, outermost layer of the brain known as the dura and the next layer, a delicate, thinner inner membrane known as the arachnoid. Dr. Murphy recommended that A.R. needed more definitive testing by way of a MRI (magnetic resonance imaging) scan and a MRI scan with a contrasting agent in the blood. Those scans were performed.
¶ 9 Dr. Murphy interpreted the MRI scans in the presence of Dr. Keefe. Dr. Keefe testified that Dr. Murphy expressed uncertainty as to whether the bleeding was caused by a dural venous sinus thrombosis or non-accidental trauma. Dr. Murphy's report on reviewing the MRIs, however, expresses the opinion that the bleeding was caused by a dural venous sinus thrombosis. A dural venous sinus thrombosis is a rare form of stroke in a child that results from thrombosis (a blood clot) in one or more of the dural venous sinuses that drain blood from the brain. Doctors refer to this type of thrombosis as a cerebral venous thrombosis or CVT.
¶ 10 Because Dr. Keefe recognized the bleeding in A.R.'s brain as a potentially lethal condition, she arranged to send A.R. to the only pediatric intensive care unit (PICU) in Montana, at St. Vincent's Hospital in Billings. Dr. Keefe also recognized that the condition could be the result of child abuse and reported her suspicions to the Child Abuse Hotline maintained by the Montana Department of Public Health and Human Services (DPHHS), as she understood she was obligated to do by Montana law. As a result, child protection specialist (CPS) BrittanyDivine traveled to St. Peters Hospital to begin an investigation. Detective Cory Olson also heard of the hospitalization and traveled to the hospital, where he spoke to Dr. Rabold, CPS Divine, Reim and Stringer.
¶ 11 Upon arrival at St. Vincent's Hospital, A.R. presented a “triad” of symptoms: Chronic subdural hematomas (old bleeding in the brain), acute subdural hematomas (new bleeding in the brain), and asymmetric retinal hemorrhages (bleeding in the eyes).
¶ 12 At St. Vincent's, A.R. was treated by Dr. Bakdash, a pediatric neurologist-epileptologist, Dr. Stears, a diagnostic neuroradiologist, Dr. Weaver, a pediatric ophthalmologist, and PICU intensivists Dr. King and Dr. Kesavulu. After reviewing the imaging done at St. Peters, Dr. Stears saw no evidence of dural venous sinus thrombosis. In Dr. Stears's view, A.R. suffered from chronic bifrontal subdural hematomas and acute hematomas. A.R. also underwent additional tests at St. Vincent's, including a MRV 1 (magnetic resonance venogram) and another MRI. The MRI revealed two contusions on the back of A.R.'s brain and two separate blood collections in the front of his skull. The tests, in Dr. Stears's opinion, did not disclose evidence of thrombosis, but rather, indicated persistent bilateral subdural hematomas in a pattern that he considered highly suggestive of non-accidental trauma. Dr. Stears indicated that the older hematomas were likely at least a month old, and that the more recent hematomas were likely a few days old. He testified that CVT in children is rare. Dr. Stears, who has extensive experience interpreting diagnostic imaging related to adult stroke victims, was convinced A.R.'s injuries were not attributable to a CVT.
¶ 13 Dr. Weaver examined A.R. on February 4, 2011, and mapped the retinal hemorrhages he observed in A.R.'s eyes. The retinal hemorrhage in A.R.'s left eye was one Dr. Weaver characterized as “severe,” with potential to cause blindness if left untreated. A.R. required surgery in Salt Lake City to treat this condition. The retinal hemorrhage in the right eye resolved itself with time. Although A.R.'s vision is improving, he has developed crossed eyes and will likely require surgery to correct this problem. In Dr. Weaver's view, A.R.'s hemorrhages were the result of non-accidental trauma. Most of the injuries like A.R.'s that Dr. Weaver had seen were attributable to child abuse.
¶ 14 Dr. Bakdash and the other members of A.R.'s medical team determined that A.R. was a victim of child abuse. To be certain about his opinion, Dr. Bakdash reviewed not only A.R.'s medical records, but the opinion written by Reim's expert, Dr. Laposata, as well as all of the medical literature he could find on the subject, including a 2012 textbook he described as the “bible” of pediatric neurology. Dr. Bakdash could not find a single case that involved the triad of injuries A.R. suffered that was accidentally caused. Although any of the injuries alone could have been caused by child abuse, the presence of the triad convinced Dr. Bakdash that A.R. was a victim of abuse.
¶ 15 The doctors ordered blood tests and, on June 18, 2012, the parties received some of the results of a blood test conducted on A.R. The results showed A.R. had an immeasurably low protein S level. Protein S is an anticoagulant. A child with a protein S deficiency is more susceptible to blood clots throughout the body and brain. In A.R.'s case, both parts of the protein S gene are abnormal. Three days later, the parties received the remaining blood test results. Those tests revealed that A.R. suffers from an additional blood clotting...
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