State v. O'Bannon

IN THE UTAH COURT OF APPEALS

‐‐‐‐ooOoo‐‐‐‐

State of Utah, ) OPINION
)
Plaintiff and Appellee, ) Case No. 20090241‐CA
)
v. ) FILED
) (March 15, 2012)
Cameron Clint O’Bannon, )
) 2012 UT App 71
Defendant and Appellant. )

‐‐‐‐‐

Fourth District, Provo Department, 051405003
The Honorable Samuel D. McVey

Attorneys: Margaret P. Lindsay and Douglas J. Thompson, Provo, for Appellant
Mark L. Shurtleff and Ryan D. Tenney, Salt Lake City, for Appellee

‐‐‐‐‐

Before Judges Orme, Roth, and Christiansen.

CHRISTIANSEN, Judge:

¶1 Defendant Cameron Clint O’Bannon appeals from his jury conviction of child
abuse, a second degree felony. See Utah Code Ann. § 76‐5‐109(2)(a) (Supp. 2011).1
O’Bannon asserts that the trial court erred in instructing the jury on the eggshell
plaintiff doctrine because the instruction incorrectly explained the mental state the State

1
Because the relevant portions of the Utah Code have not been substantively
amended, we cite the current code throughout this opinion for the reader’s convenience.
See Utah Code Ann. § 76‐5‐109 amend. notes (2008 & Supp. 2011); id. § 76‐2‐103 amend.
notes (2008).
was required to prove to obtain a conviction for second degree felony child abuse. We
reverse and remand for a new trial.

BACKGROUND2

I. The Victim’s Injuries

¶2 In the fall of 2005, a mother and her eleven‐month‐old son (the victim) moved
into O’Bannon’s home. A few weeks later, O’Bannon and the victim spent some time
together without the mother present, after which the mother noticed that the victim was
bruised under one of his eyes and on the bridge of his nose. She asked O’Bannon what
had happened, and he explained that the victim hurt himself after falling over some
lawn furniture.

¶3 On October 31, the mother left the house with her daughter to take O’Bannon’s
son to school and run some errands. Before they left, the mother’s daughter put the
victim in bed with O’Bannon, who was still asleep. After dropping off O’Bannon’s son
and eating breakfast, the mother noticed that she had missed two calls from O’Bannon
to her cell phone. The mother called O’Bannon back immediately, and he asked her to
rush home because something was wrong with the victim. O’Bannon explained to her
that the victim was “barely conscious, and his breathing was shallow.” The mother
urged O’Bannon to call an ambulance, but he resisted doing so, instead insisting that
she “hurry and get home.” When the mother arrived at the house, an ambulance had
arrived, apparently because O’Bannon had changed his mind and called for help. The
paramedics described the victim as “extremely limp and unresponsive” and having
“occasional jerking motions,” which are symptoms that are “indicative of some head
trauma or possible head injury.”

¶4 O’Bannon told the police officer who responded with the ambulance that he had
gone upstairs to gather some clothing for the children while the victim was at the
bottom of the stairway playing, when O’Bannon heard “repeated thud sound[s].”
O’Bannon stated that he went to the stairway and noticed the victim lying on his back at

2
“When reviewing a jury verdict, we recite the facts in the light most favorable to
that verdict.” State v. Carreno, 2006 UT 59, ¶ 3, 144 P.3d 1152.

20090241‐CA 2
the bottom of the stairway. O’Bannon also testified that he attempted to revive the
victim by “rubbing his belly.”

¶5 Dr. Bruce Herman, who is an emergency medicine physician, a general
pediatrician, and a child abuse pediatrician, treated the victim that night after he was
transported from the Payson hospital to Primary Children’s Medical Center in Salt Lake
City. Although there were few external signs of severe injury, consisting only of a “few
bruises here and there” and “a small mark on the top of his head,” a CT scan showed
“intra‐cranial bleeding” or sub‐dural hemorrhages of two different ages, i.e., “acute and
sub‐acute injury.” Dr. Herman opined that the acute bleeding was less than three days
old and the sub‐acute bleeding appeared to be three days to two weeks old. Dr.
Herman testified that he thought the “sub‐dural hemorrhages . . . [were] traumatic in
origin.”

¶6 Dr. Herman also reported that the victim “had extensive bilateral retinal
hemorrhages with retinoschisis.” At trial, Dr. Herman described retinal hemorrhages as
“bleeding at the back of the eye,” and retinoschisis as “an actual splitting of layers of the
retina,” essentially, “a blood blister at the back of the eye.” Dr. Herman testified that
the victim’s “retinal hemorrhages are at the most extreme [e]nd of severity, and have
never been reported to have come from a non‐fatal accidental cause.”

¶7 Dr. Herman concluded that the “constellation” of the victim’s injuries—the
retinal hemorrhages, the retinoschisis, and the sub‐dural hemorrhages—were “quite
consistent with inflicted trauma by shaking or shaking with impact.”3 Dr. Herman’s
conclusion that the victim had been shaken that morning was supported by the victim’s
immediate symptoms of severe brain injury while he was still with O’Bannon. Dr.
Herman did not believe the victim likely sustained the sub‐dural hemorrhage and acute

3
Dr. Herman explained that it was not the existence of any one of the victim’s
specific injuries that led to his conclusion that the victim had been intentionally harmed;
rather, it was the combination of the severe injuries. Dr. Herman stated, “[W]hen we
look at a child, we do [not] look at one finding in isolation. We have to look at all the
findings and create a differential diagnosis for those—the constellation of findings.”

20090241‐CA 3
bleeding from falling down the stairs.4 Dr. Herman opined that while the victim
experienced increased intra‐cranial pressure due to the swelling of the sub‐dural
hemorrhage, this increased pressure did not likely cause the extensive retinal
hemorrhages and retinoschisis.

¶8 Dr. David Christopher Dries, a pediatric ophthalmologist, examined the victim’s
eyes the day after the victim was admitted to Primary Children’s Medical Center and
diagnosed the victim with “bilateral diffuse intra‐retinal hemorrhages and hemorrhages
in all of the retina on both eyes” and “retinoschisis.” At trial, Dr. Dries testified that
“bilateral diffuse retinal hemorrhages with retinoschisis . . . is a pattern that is seen in
non‐accidental trauma.” Dr. Dries testified that the “pattern” of retinal hemorrhages
and retinoschisis that he recognized in the victim was consistent with non‐accidental
trauma, such as shaking or shaking with impact. Dr. Dries also did “not know of any
study or case report or child from [his] personal experience that had this pattern of
retinal hemorrhages from a fall down six stairs or seven stairs. It takes far greater force
for accidental trauma, far greater.” Finally, Dr. Dries did not believe that increased
intra‐cranial pressure caused the victim’s retinal hemorrhages.

4
Dr. Herman stated that a fall down the stairs
sounds bad, because you hear a thump, and then you hear
[a] series of more thumps, but what the literature would
suggest is that these are a series of small falls. . . . A fall
from—say we have stairs from the top of this counter onto
the floor. A child who just keels over from the top of this
counter onto the floor I would say has a much bigger chance
of being injured as opposed to going down the steps from
here to the floor, because each step sort of is another small
fall. So stairway falls can be thought of as a series of small
falls.
When asked about what type of injury he would expect to see in a child falling down
five to eight carpeted steps, Dr. Herman testified that he would not expect to see very
severe injuries in such a situation, specifically stating, “[A] child who is carried by [his
or her] caretaker and falls down the steps is more likely to be injured than someone
who’s just crawling or walking and falling down the steps.”

20090241‐CA 4
 II. O’Bannon’s Defense

¶9 At trial, O’Bannon presented a “re‐bleed” defense supported by his expert
witness, Dr. Robert Keith Rothfeder, formerly an emergency room physician and
currently a physician in private practice with experience in treating traumatic injuries.
As part of his current practice, Dr. Rothfeder consults in brain injury and child abuse
cases. Dr. Rothfeder, who is also a lawyer, explained that the victim had a sub‐dural
hematoma with “old blood” and “fresh blood.” The “old” sub‐dural hematoma had a
“‘membrane’ . . . like a scab” that formed after the old bleeding stopped. Dr. Rothfeder
stated that “re‐bleeding of an old sub‐dural hematoma can occur with little force, and
perhaps with no force[, but] from biological factors.” Dr. Rothfeder testified “that a fall
down [the] stairs is one of the things that could have caused a re‐bleed of that old sub‐
dural hematoma” even though the old and new bleeding occurred in two different
areas of the brain. In Dr. Rothfeder’s opinion, the victim’s injury occurred on October
31, which caused re‐bleeding of the victim’s old sub‐dural hematoma (the preexisting
hematoma). This re‐bleeding, he testified, would have “increase[d the victim’s] intra‐
cranial pressure over time.” Dr. Rothfeder believed that the victim’s retinal
hemorrhages and retinoschisis were likely caused by the increasing pressure of the re‐
bleeding of the sub‐dural hematoma rather than by a new, acute injury.

¶10 O’Bannon took the stand and testified that he “did [not] hurt [the victim],” did
not shake or strike the victim, and “would never hurt [the victim] in any way. . . ,”
stating, “[H]e was one of my own kids.”

III. The Jury Instructions

¶11 Several of the instructions given to the jury explained the elements of second
degree felony child abuse, see Utah Code Ann. § 76‐5‐109(2)(a) (Supp. 2011).
O’Bannon’s stipulation that the victim had suffered a serious physical injury resulted in
Instruction No. 9, which instructed the jury to “find [that] this element of the [charged]
offense has been prove[n] beyond a reasonable doubt.” See generally id. § 76‐5‐109(1)(f)
(defining “serious physical injury”); id. § 76‐5‐109(2)(a). Instruction No. 4 tracked the
language of second degree felony child abuse, see id. § 76‐5‐109(2)(a) (“Any person who
inflicts upon a child serious physical injury or, having the care or custody of such child,
causes or permits another to inflict serious physical injury upon a child is guilty of an
offense as follows: (a) if done intentionally or knowingly, the offense is a felony of the

20090241‐CA 5
second degree . . . .”). And Instruction No. 6 defined what it means to be “engag[ing] in
conduct” either “intentionally” or “knowingly.” See id. § 76‐2‐103(1)‐(2) (2008). The
jury was also provided additional explanations regarding intent in Instructions Nos. 7
and 8. Instruction No. 7 stated, in part,

Intent, being a state of mind, is seldom susceptible of proof
by direct and positive evidence and must ordinarily be
inferred from acts, conduct, statements and circumstances.
Thus, you would be justified in inferring that a person must have
intended the natural and probable consequences of any act
purposely done by him or her.

(Emphasis added.) Instruction No. 8 provided in part, “As the jury, you may infer a
defendant’s intent from a voluntary act which produces as its natural and probable consequence
an unlawful result. You are instructed that circumstantial evidence is competent to prove
that the defendant had the specific intent required when he committed the acts
charged.” (Emphasis added.)

¶12 After O’Bannon presented his re‐bleed defense, the State proposed Instruction
No. 9A because it was concerned that O’Bannon’s re‐bleed theory would confuse the
jury about the cause of the victim’s severe injuries. In particular, the State wanted the
jury to be instructed that it could find O’Bannon criminally responsible for inflicting
serious physical injury on the child even if O’Bannon’s shaking of the victim caused
only re‐bleeding of an older injury. Instruction No. 9A stated, “In criminal law the
injurer takes his victim as he finds him. When injury ensues from deliberate
wrongdoing, even if it is not an intended consequence, the injurer is responsible at law
without the law concerning itself with the precise amount of harm inflicted.”

¶13 The trial judge gave Instruction No. 9A over O’Bannon’s objection,5 stating, “I
believe this princip[le] is one that’s fairly long‐standing in the law, and we will allow
this instruction to be given,” contingent on the prosecutor’s statement to the jury that
the instruction would not apply if it found that the victim had fallen down the stairs.
Ultimately, the jury found O’Bannon guilty of second degree felony child abuse. After

5
With the exception of Instruction No. 9A, O’Bannon does not challenge any of
the jury instructions on appeal.

20090241‐CA 6
trial, O’Bannon filed motions to arrest judgment and for a new trial on the ground, inter
alia, that Instruction No. 9A was erroneous. The trial court denied O’Bannon’s motions.
O’Bannon appeals only the trial court’s issuance of Instruction No. 9A.

ISSUE AND STANDARD OF REVIEW

¶14 O’Bannon challenges Instruction No. 9A, asserting that it incorrectly stated the
law and erroneously applied the “eggshell plaintiff doctrine,” which originated in tort
law, to a criminal matter. O’Bannon contends that Instruction No. 9A allowed the jury
to find him criminally responsible for second degree felony child abuse without a
determination that he intentionally or knowingly caused the victim serious physical
injury. See generally Utah Code Ann. § 76‐5‐109(2)(a) (Supp. 2011). O’Bannon argues
that this erroneous jury instruction prejudiced him and that we should therefore reverse
his conviction and sentence and remand for a new trial.

¶15 “[W]e review jury instructions in their entirety to determine whether the
instructions, taken as a whole, fairly instruct the jury on the applicable law.” State v.
Malaga, 2006 UT App 103, ¶ 18, 132 P.3d 703 (alteration in original) (internal quotation
marks omitted). “Whether a jury instruction correctly states the law presents a question
of law which we review for correctness.” State v. Houskeeper, 2002 UT 118, ¶ 11, 62 P.3d
444. If “a jury instruction is erroneous, we will reverse only if the defendant shows a
reasonable probability the error affected the outcome of his case.” State v. Perez, 2002
UT App 211, ¶ 22, 52 P.3d 451 (internal quotation marks omitted); accord State v. Davis,
2007 UT App 13, ¶ 6, 155 P.3d 909.

ANALYSIS

¶16 In reviewing the jury instructions as a whole, we determine that the trial court
did not “fairly instruct the jury on the applicable law,” see Malaga, 2006 UT App 103,
¶ 18 (internal quotation marks omitted). We agree with O’Bannon that Instruction No.
9A confused the mental state required for a second degree felony child abuse conviction
by stating that the jury could find O’Bannon guilty of second degree felony child abuse
without determining that he intended to cause or knowingly caused the victim serious

20090241‐CA 7
physical injury. We also agree with O’Bannon that he was prejudiced as a result of the
erroneous jury instruction.

I. The Eggshell Jury Instruction Inaccurately Stated the Law.

A. Elements for a Conviction Under Utah Code Section 76‐5‐109(2)(a)

¶17 We begin our analysis of the validity of Instruction No. 9A with a discussion
about the mental state element of second degree felony child abuse. O’Bannon and the
State fundamentally disagree about the mental state the State was required to prove at
trial to convict O’Bannon of second degree felony child abuse. See generally Utah Code
Ann. § 76‐2‐103(1)‐(2) (2008) (defining the mental states “intentionally” and
“knowingly”); id. § 76‐5‐109(2)(a) (Supp. 2011) (stating the elements of second degree
felony child abuse). We determine that Instruction No. 9A inaccurately stated the law
with regard to the mental state required for the jury to find O’Bannon guilty of second
degree felony child abuse.

¶18 According to O’Bannon, the required mental state under Utah Code section 76‐2‐
103(1)‐(2) depends on whether the crime charged is a “conduct‐based crime” or a
“result‐based crime.” See generally id. § 76‐2‐103(1)‐(2) (2008). “A conduct‐based
crime,” he asserts, “is a crime where the statute prohibits engaging in certain conduct or
behavior often regardless of whether or not the conduct causes any result,” and “[a]
result‐based crime prohibits causing a certain result regardless of the means by which it
is achieved.” Therefore, in the context of a conduct‐based crime, “a person engages in
conduct intentionally . . . with respect to the nature of his conduct” when he “desire[s]
to engage in the conduct” or when he is “aware of the nature of his conduct.” See id. In
the context of a result‐based crime, “[a] person engages in conduct [] intentionally”
when he “desire[s] to . . . cause the result” or “acts . . . with knowledge[] with respect to
a result of his conduct when he is aware that his conduct is reasonably certain to cause
the result.” See id. O’Bannon argues that the legislature intended for second degree
felony child abuse to be a result‐based crime.

¶19 O’Bannon illustrates his position with an example of a person who intended to
firmly hug a child or infant and did not intend the hugging to result in injury, but who
nevertheless caused serious physical injury upon the child or infant. O’Bannon argues
that the person’s conduct of hugging would be criminalized because the person

20090241‐CA 8
intended to engage in the hug. O’Bannon asserts that the legislature did not intend for
the person’s conduct in such circumstances to be criminalized where he or she did not
intend to cause harm, especially not the serious physical injury required for a second
degree felony conviction. O’Bannon thus argues that the child abuse statute clearly
provides that in order for him to be found guilty of second degree felony child abuse,
“the State must prove [beyond a reasonable doubt] that he either intended to cause [the
victim] serious physical injury or knew that his conduct was reasonably certain to cause
[the victim] serious physical injury.”

¶20 By contrast, the State argues that O’Bannon was correctly convicted of second
degree felony child abuse even if the State proved only that “the nature of [O’Bannon’s]
conduct” was intentional, see id. § 76‐2‐103(1), or that O’Bannon “[was] aware of the
nature of his conduct or the existing circumstances,” see id. § 76‐2‐103(2). The State
emphasizes the disjunctive “or” in section 76‐2‐103(1)‐(2), to assert that, in order to
convict O’Bannon of child abuse as a second degree felony, it was required to prove
only that O’Bannon intentionally or knowingly engaged in the conduct (shaking), or
that O’Bannon intended to cause a particular result or knew that a particular result
would occur, but that it is not required to prove both that O’Bannon engaged in the
conduct and intended the result or knew the conduct was reasonably certain to cause
the result. See id. § 76‐2‐103(1)‐(2).

¶21 According to the State, O’Bannon could be convicted of second degree felony
child abuse if he intended “the nature of his conduct” that “inflict[ed the] serious
physical injury” on the victim regardless of whether he intended to actually cause the
child a serious physical injury. See id. § 76‐2‐103(1); id. § 76‐5‐109(2)(a) (Supp. 2011).
The State alternatively argues that O’Bannon could be found guilty of second degree
felony child abuse if it proved that O’Bannon was aware of the nature of his conduct or
the existing circumstances of his infliction of serious physical injury on the victim
regardless of whether O’Bannon was aware that his conduct was reasonably certain to
cause the result. See id. § 76‐2‐103(2) (2008); id. § 76‐5‐109(2)(a) (Supp. 2011). In other
words, the State argues that it was only required to prove beyond a reasonable doubt
that O’Bannon intended to shake the victim, not that O’Bannon intended to cause the
victim serious physical injury. Were this not the result, the State argues, then a person
who intentionally shakes a child could “avoid liability for any brain damage by
claiming that she intended only to scare the child, not to seriously injure him.”

20090241‐CA 9
¶22 Thus, the parties’ contrary interpretations of section 76‐5‐109(2)(a) center on
whether, to sustain a conviction for second degree felony child abuse in these
circumstances, the State need only prove that O’Bannon acted intentionally because he
“desire[d] to engage in the conduct” that caused the serious physical injury or acted
knowingly because he knew that engaging in such “conduct [was] reasonably certain to
cause” serious physical injury to the victim. See Utah Code Ann. § 76‐2‐103(1)‐(2)
(2008); id. § 76‐5‐109(2)(a) (Supp. 2011).

¶23 We agree with O’Bannon’s interpretation of the statute and determine that, for
the jury to find him guilty of second degree felony child abuse, the State had the burden
at trial of proving that O’Bannon intended his conduct to cause the victim serious
physical injury or of proving that O’Bannon knew that his conduct was reasonably
certain to cause the victim serious physical injury.

When interpreting statutes, we first look to the plain
language of the statute and give effect to that language
unless it is ambiguous. Thus, a statutory provision should
be read literally, unless it would result in an unreasonable or
inoperable result. When examining the statutory language
we assume the legislature used each term advisedly and in
accordance with its ordinary meaning.

Our duty to give effect to the plain meaning of a
statute, however, should give way if doing so would work a
result so absurd that the legislature could not have intended
it. Where a statute’s plain language creates an absurd,
unreasonable, or inoperable result, we assume the
legislature did not intend that result. To avoid an absurd
result, we endeavor to discover the underlying legislative
intent and interpret the statute accordingly.

State v. Jeffries, 2009 UT 57, ¶¶ 7‐8, 217 P.3d 265 (citations and internal quotation marks
omitted).

20090241‐CA 10
¶24 Utah Code section 76‐5‐109(2)(a) provides,

Any person who inflicts upon a child serious physical injury
or, having the care or custody of such child, causes or
permits another to inflict serious physical injury upon a
child is guilty of an offense as follows: (a) if done
intentionally or knowingly, the offense is a felony of the
second degree . . . .

Utah Code Ann. § 76‐5‐109(2)(a) (Supp. 2011). Section 76‐2‐103 defines the mental states
of intentional and knowing:

A person engages in conduct: (1) Intentionally, or with
intent or willfully with respect to the nature of his conduct
or to a result of his conduct, when it is his conscious
objective or desire to engage in the conduct or cause the
result. (2) Knowingly, or with knowledge, with respect to
his conduct or to circumstances surrounding his conduct
when he is aware of the nature of his conduct or the existing
circumstances. A person acts knowingly, or with
knowledge, with respect to a result of his conduct when he is
aware that his conduct is reasonably certain to cause the
result.

Id. § 76‐2‐103(1)‐(2) (2008).

¶25 Interpreted literally, section 76‐5‐109(2)(a) provides that a person who inflicts
serious physical injury upon a child commits second degree felony child abuse if he or
she intentionally engages in conduct that leads to the child’s serious physical injury and
(1) desires to engage in that conduct or (2) desires to cause the result. See id. § 76‐2‐
103(1); id. § 76‐5‐109(2)(a) (Supp. 2011). Alternatively, a person who inflicts serious
physical injury upon a child commits second degree felony child abuse if he or she
knowingly engages in conduct that leads to the child’s serious physical injury and (1) is
aware of the nature of his or her conduct or the existing circumstances or (2) is aware
that his or her conduct is reasonably certain to cause the result. See id. § 76‐2‐103(2)
(2008); id. § 76‐5‐109(2)(a) (Supp. 2011). Additionally, the plain meaning of the word

20090241‐CA 11
“inflict” from the child abuse statute is “to give by or as if by striking ” or “ to
cause (something unpleasant) to be endured.” See Merriam‐Webster’s Collegiate
Dictionary 641 (11th ed. 2003).

¶26 Interpreting section 76‐5‐109(2)(a) literally would lead to an unintended,
unreasonable, and even absurd result.6 See Jeffries, 2009 UT 57, ¶ 8. To avoid an
unintended result, we read this statute to mean that second degree felony child abuse
requires a culpable mental state that relates to the result of the conduct and not to the
nature of the circumstances surrounding the conduct itself. That is, to be found guilty
of second degree felony child abuse, the person must have intended to cause the victim
serious physical injury or must have been aware that his or her conduct was reasonably
certain to cause the victim serious physical injury. Moreover, we do not apply the word
“inflict” to only non‐accidental acts.

¶27 By way of example, literally interpreting section 76‐2‐103 as it applies to section
76‐5‐109(2)(a) would mean that a person who engages in innocent horseplay with a
child could be convicted of second degree felony child abuse if the child suddenly falls
off the person’s back, hits his head, and suffers serious physical injury. The person thus
inflicted serious physical injury upon the child and either desired to engage in the
conduct or was aware of the nature of his or her conduct, even though he or she did not
desire and was not aware that the conduct was reasonably certain to cause the child to
fall and suffer a serious physical injury.

¶28 In our hypothetical example, however accidental it was, the person still inflicted
the child’s serious physical injury. If inflict meant only a non‐accidental action against a
person, it would preclude the criminalization of a reckless or criminally negligent
action, something that is contrary to our statutes. Inflicting serious physical injury upon
a child applies not only to intentional and knowing (second degree felony) child abuse,
but also to reckless child abuse, see id. § 76‐5‐109(2)(b) (Supp. 2011) (“[I]f done
recklessly, the offense is a felony of the third degree.”), and to criminally negligent child
abuse, see id. § 76‐5‐109(2)(c) (“[I]f done with criminal negligence, the offense is a class A
misdemeanor.”). Thus, under the statute, a defendant can inflict serious physical injury

6
Our interpretation of section 76‐2‐103(1)‐(2) is limited to second degree felony
child abuse. See Utah Code Ann. § 76‐2‐103(1)‐(2) (2008); id. § 76‐5‐109(2)(a) (Supp.
2011).

20090241‐CA 12
upon a child with different levels of culpable mental states, i.e., intentionally or
knowingly, which imply non‐accidental infliction of injury; or recklessly or negligently,
which imply accidental infliction of injury.

¶29 Furthermore, were we to literally interpret the statute as requiring the State to
prove only that one intended to engage in the conduct surrounding the injury to a child,
then the general public might not know when conduct could possibly be criminalized in
an instance where a person intended to engage in certain conduct even though they did
not intend the serious physical injury that resulted. Instead of that absurd result, it is
far likelier that the legislature intended the public to understand that if a person
intentionally or knowingly causes serious physical injury to a child, he or she commits a
second degree felony regardless of how he or she causes the injury.

¶30 We also observe the following directive:

The rule that a penal statute is to be strictly construed
shall not apply to [the criminal] code, any of its provisions,
or any offense defined by the laws of this state. All
provisions of [the criminal] code and offenses defined by the
laws of this state shall be construed according to the fair
import of their terms to promote justice and to effect the
objects of the law and general purposes of Section 76‐1‐104.

Utah Code Ann. § 76‐1‐106 (2008). The general purposes of the criminal code, as
described in section 76‐1‐104, include “[f]orbidd[ing] and prevent[ing] the commission
of offenses” and “[d]efin[ing] adequately the conduct and mental state which constitute
each offense and safeguard conduct that is without fault from condemnation as
criminal.” Id. § 76‐1‐104(1)‐(2). In the context of second degree felony child abuse,
applying the conduct portion of the intentional definition (desires to engage in that
conduct), see id. § 76‐2‐103(1), and the knowing definition (is aware of the nature of his
or her conduct or the existing circumstances), see id. § 76‐2‐103(2), would contradict the
general purpose of the criminal code to “safeguard conduct that is without fault from
condemnation as criminal,” see id. § 76‐1‐104(2). In State v. Miller, 2008 UT 61, 193 P.3d
92, the supreme court similarly declined to “[s]trictly constru[e] the term ‘possesses’” in
Utah Code section 58‐37‐8 when doing so would promote injustice to those innocently

20090241‐CA 13
possessing a controlled substance and would “create[] a myriad of absurd prosecutorial
possiblities.” Id. ¶¶ 20‐21.

¶31 Consequently, we agree with O’Bannon that, to convict him of second degree
felony child abuse, the State was required to prove that O’Bannon intended to cause the
victim serious physical injury to the victim or that OʹBannon was aware that his actions
were reasonably certain to cause serious physical injury to the victim. It follows that it
is insufficient for a second degree felony child abuse conviction for the State to prove
only that O’Bannon intended to be, or knew that he was, engaged in certain conduct
without the requisite intent or knowledge that a serious physical injury would likely
result from his commission of that conduct.

B. The Eggshell Plaintiff Doctrine

¶32 Based upon our determination that the State was required to prove that
O’Bannon intended to cause the victim serious physical injury or that he was aware that
his actions were reasonably certain to cause the victim serious physical injury, we agree
with O’Bannon that Instruction No. 9A improperly applied the eggshell plaintiff
doctrine in his criminal case. The “common law tort principle commonly referred to as
the ‘thin skull’ or ‘eggshell skull’ doctrine [is that] one who injures another takes the
injured as she finds him.” Ryan v. Gold Cross Servs., Inc., 903 P.2d 423, 428 (Utah 1995).
We determine that Instruction No. 9A was misleading because it confuses the mental
state required for a second degree felony child abuse conviction. The instruction
incorrectly allowed the jury to find O’Bannon guilty of second degree felony child
abuse when it determined that he intentionally or knowingly shook the victim, rather
than requiring the State to prove that O’Bannon intended to cause the victim serious
physical injury or that O’Bannon knew that his actions were reasonably certain to cause
the victim serious physical injury.

¶33 The State modeled Instruction No. 9A on Brackett v. Peters, 11 F.3d 78 (7th Cir.
1993), cert. denied, 511 U.S. 1072 (1994), in which the Seventh Circuit affirmed the
murder conviction of a defendant who had raped and assaulted an eighty‐five‐year‐old
woman. See id. at 82. The victim’s death was partially caused by the injuries she
suffered during the defendant’s attack. See id. at 79‐80. The Brackett court concluded
that it was sufficient that the injuries the defendant inflicted on the victim constituted
some of the myriad causes of the victim’s death and thus stated that “when injury or

20090241‐CA 14
death ensues from deliberate wrongdoing, even if . . . [death] is not an intended
consequence, the criminal law comes down heavily on the defendant without worrying
overmuch about the precise amount of harm inflicted.” Id. at 82.
¶34 A critical distinction between Brackett and this case is that Brackett involved
felony murder. See id. To obtain a conviction for felony murder, the prosecution was
not required to prove that the defendant had the specific intent to kill, only that the
defendant had the intent to engage in certain proscribed conduct that resulted in the
death of another. See id. Thus, the intent requirement for a felony murder conviction is
different than that required for second degree felony child abuse, which, as explained
above, requires the State to prove intent to cause serious physical injury or that the
defendant acted with knowledge of the reasonably certain consequences of his conduct.
Compare id., with Utah Code Ann. § 76‐5‐109(2)(a) (Supp. 2011). Contrasting felony
murder with intentional murder, the Seventh Circuit explained, “[t]he eggshell‐skull
principle does not quite fit a case of intentional murder, for the murderer must intend
his victim’s death and ordinarily this will presuppose some awareness of the likely
consequences of his act.” Brackett, 11 F.3d at 81‐82. The Seventh Circuit acknowledged
that a tort law concept such as the eggshell plaintiff doctrine focuses on compensation
for injuries “while criminal law, which emphasizes deterrence and incapacitation,
focuses on the dangerousness of the defendant’s conduct.” Id. at 82. Nevertheless, the
Seventh Circuit upheld the trial court’s application of the tort doctrine in the felony
murder criminal case. See id.

¶35 Instruction No. 9A incorporated the tort law concept of the eggshell plaintiff
doctrine: “In criminal law the injurer takes his victim as he finds him,” and “[w]hen
injury ensues from deliberate wrongdoing, even if it is not an intended consequence,
the injurer is responsible at law without the law concerning itself with the precise
amount of harm inflicted.” These statements distort the mental state requirement that
must be proven to sustain a conviction for second degree felony child abuse. As we
explained above, a second degree felony child abuse conviction requires a finding that
the defendant intended to cause the child serious physical injury or that the defendant
knew that by engaging in certain conduct, “he or she was reasonably certain to cause”
the child serious physical injury. See Utah Code Ann. § 76‐2‐103(1)‐(2) (2008); id. § 76‐5‐
109(2)(a) (Supp. 2011). The eggshell plaintiff doctrine confuses the mental state element
of second degree felony child abuse because if a person did not intend to cause serious
physical injury to the child or know that his or her conduct was reasonably certain to
cause serious physical injury to the child, then he or she cannot be found guilty of

20090241‐CA 15
intentionally or knowingly causing serious physical injury to the child, even if the child
is unusually vulnerable. The State must prove that the defendant knowingly or
intentionally caused a “precise amount of harm.” See Brackett, 11 F.3d at 82. The fact
that the victim may have been extra susceptible to injury does not relieve the State of its
burden to prove that O’Bannon intentionally or knowingly caused the serious physical
injury that the victim suffered.

¶36 The State asserts that the Utah appellate courts have applied the eggshell plaintiff
doctrine in the criminal law context in State v. Hamblin, 676 P.2d 376 (Utah 1983), and
State v. Gonzales, 2002 UT App 256, 56 P.3d 969. In Hamblin, although the supreme court
did not refer to the eggshell plaintiff doctrine, it affirmed the trial court’s decision not to
instruct the jury that it was required to find the defendant, who had been speeding and
had a blood alcohol content of .12 percent, the “‘sole proximate cause’” of the death of
the victim, who had been driving with a blood alcohol content of .10%, in order to find
the defendant guilty of automobile homicide. See Hamblin, 676 P.2d at 377‐79. The
supreme court quoted an Alaska Supreme Court case to explain the following:

“The state, in a criminal case, is not required to prove
beyond a reasonable doubt that the defendant’s negligence
was the sole proximate cause of the death. When a
defendant negligently creates a risk of death to another
person, the fact that the person actually died as a result of
the combination of that negligence plus some other
contributing factor does not serve to exculpate.”

Id. at 379 (emphasis in original) (quoting Wren v. State, 577 P.2d 235, 240 (Alaska 1978)).

¶37 In Gonzales, this court held that the trial court properly instructed the jury on
causation in that it could correctly convict the defendant of manslaughter even if there
was another significant contributing factor to the victim’s death, such as the victim’s
intoxication. See 56 P.3d 969, ¶¶ 20‐21 (“A defendant’s acts may be found to be the
proximate cause of the victim’s death even if the victim ‘actually died as a result of the
combination of [the defendant’s acts] plus some other contributing factor.’” (alteration
in original) (quoting Hamblin, 676 P.2d at 379)).

20090241‐CA 16
¶38 Gonzales and Hamblin do not support the application of the eggshell plaintiff
doctrine in a criminal case. We agree that Gonzales and Hamblin are instructive in that
these cases recognize a basis under Utah law for holding a defendant culpable for
causing death even when other factors contributed to the victim’s death. See generally
Hamblin, 676 P.2d at 379; Gonzales, 2002 UT App 256, ¶¶ 20‐21. In this case, however,
Instruction No. 9A is not comparable to those issued in Gonzales and Hamblin.
Instruction No. 9A advised the jury that it could find O’Bannon guilty of a specific
result‐based offense without determining that he had the requisite intent or knowledge
that his conduct would cause that result. Thus, Instruction No. 9A improperly allowed
the jury to find O’Bannon guilty without the required proof that he intentionally or
knowingly caused the victim’s serious physical injuries.

¶39 Finally, after reviewing the jury instructions in their entirety, we cannot say that,
“taken as a whole,” they “fairly instruct[ed] the jury on the applicable law.” See State v.
Malaga, 2006 UT App 103, ¶ 18, 132 P.3d 703 (internal quotation marks omitted); see also
State v. Harper, 2006 UT App 178, ¶ 14, 136 P.3d 1261 (“If taken as a whole [the
instructions] fairly instruct the jury on the law applicable to the case, the fact that one of
the instructions, standing alone, is not as accurate as it might have been is not reversible
error.” (internal quotation marks omitted)). We acknowledge that the jury was
instructed that it was “justified in inferring that a person must have intended the
natural and probable consequences of any act purposely done by him or her,” and that
it could infer intent from circumstantial evidence such as “a voluntary act which
produces as its natural and probable consequence an unlawful result.” Although these
instructions are consistent with Utah law, see, e.g., State v. James, 819 P.2d 781, 789‐90
(Utah 1991) (stating that “[an] inference is made that the natural consequences of that
act were intended to occur” and that “intent is of necessity proven by circumstantial
evidence”); State v. Sisneros, 631 P.2d 856, 859 (Utah 1981) (“[A] person is presumed to
intend the natural and probable consequences of his acts.” (internal quotation marks
omitted)); State v. Robertson, 2005 UT App 419, ¶ 15, 122 P.3d 895 (“[T]he intent to
commit [a crime] is a state of mind, which is rarely susceptible of direct proof, it can be
inferred from conduct and attendant circumstances in the light of human behavior and
experience.” (internal quotation marks omitted)), they do not compensate for
Instruction No. 9A, which confuses the mental state element for a second degree felony
child abuse conviction.

II. The Erroneous Jury Instruction Constitutes Reversible Error Because O’Bannon Was

20090241‐CA 17
 Prejudiced by Instruction No. 9A.

¶40 O’Bannon argues, and we agree, that Instruction No. 9A improperly instructed
the jury that it could find O’Bannon guilty of second degree felony child abuse without
determining that O’Bannon actually intended to cause or knowingly caused the victim
serious physical injury. The prosecutor highlighted Instruction No. 9A in closing
argument, stating,

In criminal law, the injurer takes the victim as he finds him.
That means that if there was [a] sub‐acute hemorrhage in
this [victim’s] head, if he causes injury and shakes this child
to cause not only the new injury, but a re‐bleed of the old, he
is responsible for all of the damage that may be because of
the re‐injury to an old injury.

In closing argument the prosecutor also stated, “All the State is required to show is that
[O’Bannon] intended to do the shaking.”

¶41 Instruction No. 9A, combined with the State’s closing argument, instructed the
jury that it could find O’Bannon guilty of second degree felony child abuse without
determining that he had the requisite intent or knowledge to cause the victim serious
physical injury. Therefore, we agree with O’Bannon that the court erred by so
instructing the jury. However, an error is reversible only if the defendant persuades us
that there was “a reasonable probability the error affected the outcome of his case.’”
State v. Perez, 2002 UT App 211, ¶ 22, 52 P.3d 451. “An error is prejudicial if it tends to
mislead the jury to the prejudice of the complaining party or insufficiently or
erroneously advise[s] the jury on the law.” State v. Penn, 2004 UT App 212, ¶ 28, 94 P.3d
308 (alteration in original) (internal quotation marks omitted).

¶42 The State contends, even if we determine as we have, that O’Bannon could be
convicted of second degree felony child abuse only if he intended to cause serious
physical injury or acted knowing that his actions were reasonably certain to cause
serious physical injury, the evidence presented at trial was sufficient to prove beyond a
reasonable doubt that O’Bannon intentionally or knowingly caused the victim serious
physical injury. The State argues that because the jury accepted the State’s theory of the
victim’s injuries—that they were caused by O’Bannon violently shaking the

20090241‐CA 18
victim—and because the jury was instructed that it was “justified in inferring that a
person must have intended the natural and probable consequences of any act purposely
done by him or her,” and could infer intent from circumstantial evidence such as “a
voluntary act which produces as its natural and probable consequence an unlawful
result,” we must conclude that there is no reasonable possibility that O’Bannon
violently shook the victim without intending the natural and probable consequences of
his actions, and therefore, that O’Bannon intended to cause the victim serious physical
injury.

¶43 Proof of a culpable mental state comes by way of circumstantial evidence, and
proof of intent or knowledge is an inference that may be drawn by the factfinder both
from direct and from circumstantial evidence. See James, 819 P.2d at 789‐90. A jury can
infer intent or knowledge from the defendant’s acts, conduct, and remarks as well as
from the circumstances surrounding the alleged crime. In this case, the State sought to
prove O’Bannon’s mental state through circumstantial evidence. No direct evidence
was presented to prove O’Bannon’s intent to cause the victim’s serious physical injury
or to prove O’Bannon’s knowledge that serious physical injury was reasonably likely to
result from his conduct. While the State’s witnesses testified and common sense
indicates that violent shaking of a child provides for a substantial and unjustifiable risk
of serious physical injury to that child, the fact that the victim had a prior injury and
may have been especially vulnerable to further bleeding in his brain demonstrates that
O’Bannon could have caused the victim serious physical injury without the requisite
intent to do so. Though O’Bannon did not present evidence that he unintentionally
caused the victim’s serious physical injuries, (i.e., shook the victim just a little bit), the
State suggested that very defense by arguing that the jury could find O’Bannon guilty of
second degree felony child abuse if it found that he shook the victim only enough to
cause a re‐bleed of the old injury in the victim’s brain.

¶44 The error in giving Instruction No. 9A was prejudicial because “‘we cannot be
sure’ that the jury based its” determination on the State’s argument that the victim did
not fall down the stairs and that O’Bannon violently shook the victim, rather than on the
State’s closing argument that O’Bannon shook the victim only enough to cause a re‐
bleed of an older injury. Cf. State v. Davis, 2007 UT App 13, ¶ 13, 155 P.3d 909 (reversing
a conviction and stating, “‘we cannot be sure’ that the jury based its drug‐free zone
determination on the public parking lot instruction and not on the erroneous bicycle
path instruction” (quoting State v. Dunn, 850 P.2d 1201, 1209 (Utah 1993))).

20090241‐CA 19
¶45 Thus, the jury instructions, specifically Instruction No. 9A, did not fairly instruct
the jury on the mental state requirement for second degree felony child abuse, and we
determine that there is a reasonable likelihood that the trial court’s error in giving
Instruction No. 9A affected the outcome of the trial. See Perez, 2002 UT App 211, ¶ 22.

CONCLUSION

¶46 The trial court erred by giving Instruction No. 9A, which misled the jury as to the
mental state required, and which improperly applied the tort concept known as the
eggshell plaintiff doctrine to the child abuse statute. Because the error was prejudicial,
we reverse O’Bannon’s conviction and remand for a new trial.

____________________________________
Michele M. Christiansen, Judge

‐‐‐‐‐

¶47 WE CONCUR:

____________________________________
Gregory K. Orme, Judge

____________________________________
Stephen L. Roth, Judge

20090241‐CA 20