State v. Thomason

• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Writing for the Court: STRUBHAR, J.
• Citation: State v. Thomason, 2001 OK CR 27, 33 P.3d 930 (Okla. Crim. App. 2001)
• Decision Date: 03 October 2001
• Docket Number: No. SR-2000-859.,SR-2000-859.
• Parties: STATE of Oklahoma, Appellant, v. Patsy "Pat" THOMASON, Appellee.

33 P.3d 930

2001 OK CR 27

STATE of Oklahoma, Appellant, v. Patsy "Pat" THOMASON, Appellee.

No. SR-2000-859.

Court of Criminal Appeals of Oklahoma.

October 3, 2001.

Rehearing Denied November 5, 2001.

Steven Cravens, Tully McCoy, Assistant Attorneys General, Medicaid Fraud Control Unit, Oklahoma City, OK, Attorneys for the State at trial.

Steven L. Parker, Attorney at Law, Tecumseh, OK, Attorney for Appellee at trial.

Susan C. Stallings, Assistant Attorney General, W.A. Drew Edmondson, Attorney General of Oklahoma, Oklahoma City, OK, Attorneys for the State on appeal.

Steven L. Parker, Attorney at Law, Tecumseh, OK, Attorney for Appellee on appeal.

OPINION

STRUBHAR, J.:

¶ 1 Patsy "Pat" Thomason, Appellee, was charged in a three count Multi-county Grand Jury indictment. The indictment was dismissed and refiled as an Information in the District Court of Comanche County, Case No. CF-99-177, charging Thomason with Count I—Caretaker Neglect (21 O.S.1991, 843.1), Count II—Obstructing an Officer (21 O.S.1991, § 540) and Count III—Attempted Subornation of Perjury (21 O.S.1991, § 504). The magistrate bound Thomason over on the felony counts, Counts I and III. Thomason then filed a motion to dismiss Count I and a motion to quash, set aside and dismiss Count II. After the trial court heard argument and the parties filed supplemental briefs, the court granted Thomason's motions. The State appeals pursuant to 22 O.S.1991, §§ 1053.1 and 1053(3).

¶ 2 Appellee Thomason was the Regional Director of the Tutera Group, the managing entity of Western Hills Health Care Center (WHHCC), a nursing home in Lawton. The charge of caretaker neglect arose from the care or lack thereof that George Roberts, a 91-year-old resident of WHHCC with dementia of the Alzheimer's type, received from April 9, 1998 through May 9, 1998. Roberts was discovered in his room with a broken leg on April 9. He was transported to the hospital where a full cast was placed on his leg and he was returned to WHHCC later that day. Due to Roberts' incontinence and lack of a catheter, urine got into his cast. Over the next month several employees reported to the charge nurses that the cast was dirty and had a foul odor, but no action was taken. On May 8, 1999, Roberts was having trouble breathing and an ambulance was dispatched. The EMT noticed the strong odor emanating from Roberts' cast. At the hospital, the cast was removed exposing what had become an open fracture with the bone protruding through the skin and pus draining from the open wound. In addition to the open fracture, Roberts was diagnosed with various infections. He died approximately one month later. Whether Thomason participated in the care of Roberts in any manner was contested. ¶ 3 On September 3, 1998, Investigator Michael Dewey from the Medicaid Fraud Control Unit of the Attorney General's Office was at WHHCC to arrange an interview with an employee as part of his investigation into the neglect of Roberts. Dewey went to the office of Delores Thompson, the Director of Nursing, to arrange the interview. While there he saw a picture of the buttocks of a resident with what appeared to him to be a serious decubitus ulcer (bedsore). He asked Thompson if there was a problem with the resident and she told Dewey she could not discuss it. The following day, Dewey was refused access to the photograph, the resident's medical records and the depicted resident.¹ Dewey then obtained a search warrant as authorized by 56 O.S.Supp.1995, § 1003(C)(1). He served the search warrant on LaDonna Jones, an administrator at WHHCC who refused to disclose the name of the resident or produce the photograph. According to Dewey, nothing was provided. It appears from his testimony that he did not search WHHCC even though the search warrant authorized him to do so.

¶ 4 Angie Oliver-McGee, an employee at WHHCC, testified that Thomason gave her a file with the photograph in it and told her "to do something with it" and not to tell LaDonna Jones where it was. McGee understood Thomason to mean that she should hide it so when the investigators from the Attorney General's Office asked LaDonna for it, LaDonna could say she did not know where it was. The identity of the resident and the photograph were turned over later by WHHCC's legal counsel. Additional pertinent facts will be discussed as they become relevant to the propositions raised for review.

¶ 5 The State of Oklahoma asserts the trial court erred in ruling that § 843.1 was unconstitutional as applied to Thomason.² The reason the trial court found § 843.1 unconstitutional is not clear from this record. In ruling § 843.1 was unconstitutional as applied to Thomason, the trial court merely stated, "There is no way that a reasonable person could—I think in her position be on notice of what was expected of her under the law."³

¶ 6 Below, Thomason argued that the caretaker neglect statute was void because it referenced a definition for caretaker at 43A O.S.1991, § 803 that had been repealed. See 21 O.S.1991, § 843.1. Because the statute defining caretaker had moved, Thomason argued only those trained in legal research could determine the charge against them. At the hearing on her motion to dismiss, Thomason also argued that she, as a management employee, could not have known that she could be criminally responsible for abuse or neglect of nursing home residents given the definition of caretaker and the management exemption from liability found in the rules and regulations governing nursing homes. Thomason also maintained § 843.1 was unconstitutional because it lends itself to selective prosecution.

¶ 7 It is a well established rule of law that a legislative act is presumed to be constitutional and that the party attacking the constitutionality of the statute has the burden of proof. Romano v. State, 1993 OK CR 8, ¶ 66, 847 P.2d 368, 384, aff'd, 512 U.S. 1, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994). "Whenever reasonably possible statutes should be construed so as to uphold their constitutionality." Id. A criminal statute is void only when it is so vague that men of common intelligence must necessarily guess at its meaning. Pratt v. State, 1982 OK CR 31, ¶ 3, 642 P.2d 268, 269-70. When the foregoing standard is applied to § 843.1, we find the statute is not so vague as to be violative of due process.

¶ 8 At the time of the alleged incident, § 843.1 provided:

A. No caretaker as defined in Section 803 of Title 43A of the Oklahoma Statutes shall willfully abuse, neglect, or financially exploit any person entrusted in his care, or shall cause, secure, or permit any of said acts to be done.

B. Any person convicted of violating the provisions of this section shall be guilty of a felony punishable by a fine of not more than Ten Thousand Dollars ($10,000.00), or by imprisonment in the State Penitentiary for not more than ten (10) years, or by both said fine and imprisonment.

21 O.S.1991, § 843.1.

¶ 9 Contrary to Thomason's claim, § 803 was not repealed; rather, §§ 801 through 810 of Title 43A were renumbered as §§ 10-101 through 10-110 of that same title which was reflected at 43A O.S.1991, § 803 and there was never any gap where the term caretaker for purposes of § 843.1 was not defined.⁴ Consequently, the applicable definition of caretaker at the time of the alleged incident was located at 43A O.S.Supp.1997, § 10-103(6) which provided:

6. "Caretaker" means a person who has the responsibility for the care of the person or financial management of the resources of the vulnerable adult as a result of a family relationship or who has assumed the responsibility for the care of the vulnerable adult voluntarily, by contract, or as a result of the ties of friendship.

¶ 10 The statute, although drafted in a general nature, clearly proscribes the infliction of abuse or neglect on vulnerable adults by their caretakers. Because it was clear the definitions section had only been renumbered and there was never any gap where the term caretaker for purposes of § 843.1 was not defined, we find the statute provided Thomason adequate notice.

¶ 11 Further, section 843.1 is not unconstitutional because caretaker is defined differently in the rules and regulations governing nursing homes. Just because Thomason was more familiar with the rules and regulations governing nursing homes by virtue of her occupation than with the penal statutes of the state is irrelevant to this analysis as ignorance of a valid law is not a defense. See Bell v. State, 1962 OK CR 160, ¶ 18, 381 P.2d 167, 174 (everyone is presumed to know the law.) The question we must resolve is whether § 843.1 is so vague that people of common intelligence must necessarily guess at its meaning. Section 843.1's language clearly apprises the public of what conduct will be deemed criminally punishable. Section 843.1 with its accompanying reference to the definition of caretaker is a proper legislative enactment aimed at a specific conduct the proscription of which is within the police power of the state. The real question posed by this case is whether sufficient evidence exists to prove caretaker neglect. This record indicates that it is bitterly disputed whether Thomason is a caretaker and if so, whether she had any contact with Roberts. Those are factual issues to be resolved by a jury.

¶ 12 Lastly, section 843.1 is not unconstitutional because it lends itself to selective prosecution. As we stated in Childress v. State, 2000 OK CR 10, ¶ 18, 1 P.3d 1006, 1011:

The decision regarding which criminal charge to bring lies within the wide parameters of prosecutorial discretion. Prosecutorial discretion has boundaries. Prosecutions cannot be based upon "unjustifiable standards such as race, religion or other arbitrary classification." It is the defendant's burden to show the State's prosecution of him is based upon discriminatory grounds.

(citations omitted)

¶ 13 Here, Thomason has not shown that she is being prosecuted based on an...