No. 14812
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981
STATE OF MONTANA,
Plaintiff and Respondent,
BONNIE LEE HOFFMAN,
Defendant and Appellant.
Appeal from: District Court of the Fourth Judicial District,
In and for the County of Missoula
Honorable Jack L. Green, Judge presiding
Counsel of Record:
For Appellant:
Garnaas, Hall, Riley & Pinsoneault, Missoula, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Robert L. Deschamps 111, County Attorney, Missoula,
Montana
Submitted on briefs: October 1, 1981
Decided: January 14, 1982
Filed: JAN 14 1982
Mr. J u s t i c e Gene B . D a l y d e l i v e r e d t h e O p i n i o n o f t h e C o u r t .
The d e f e n d a n t , B o n n i e Lee Hoffman, was c h a r g e d w i t h
n e g l i g e n t h o m i c i d e u n d e r s e c t i o n 45-5-104, MCA, b a s e d on h e r
f a i l u r e t o provide medical a t t e n t i o n f o r her three-year-old
son. S h e was c o n v i c t e d a f t e r a j u r y t r i a l i n t h e D i s t r i c t
C o u r t o f t h e F o u r t h J u d i c i a l D i s t r i c t , M i s s o u l a C o u n t y , and
received a ten-year suspended sentence.
Bonnie Lee Hoffman m e t Kinley Dobson in 1 9 7 4 when
t h e y w e r e b o t h l i v i n g i n C u t Bank, Montana. The defendant
was s i x t e e n a t t h e t i m e ; Dobson was t w e n t y - f o u r and m a r r i e d .
The d e f e n d a n t became p r e g n a n t by Dobson, a n d on F e b r u a r y 1 6 ,
1 9 7 5 , t h e i r s o n , Chad, was b o r n . Dobson and t h e d e f e n d a n t
d i d n o t g e t m a r r i e d a t t h i s time b u t c o n t i n u e d t o s e e o n e
a n o t h e r p e r i o d i c a l l y o v e r t h e n e x t few y e a r s .
Dobson and t h e d e f e n d a n t had a v o l a t i l e and v i o l e n t
relationship, which ended with the death of their young
child.
I n August 1977, Dobson and the defendant married.
They lived together i n Missoula, Montana, where d e f e n d a n t
had a j o b a s a key-punch o p e r a t o r a t a b a n k . S h e worked f r o m
a b o u t 2:00 p.m. u n t i l 10:OO p.m. Dobson was unemployed and
s t a y e d a t home w i t h t h e i r t w o - y e a r - o l d s o n , Chad.
After a b o u t a month, the relationship again turned
violent. Dobson frequently threatened the defendant and
p h y s i c a l l y a b u s e d b o t h h e r and t h e c h i l d . I n December 1 9 7 7 ,
a f t e r d e f e n d a n t had s t a y e d w i t h f r i e n d s and i n a s h e l t e r f o r
b a t t e r e d women, s h e d i v o r c e d Dobson.
Dobson, n e v e r t h e l e s s , c o n t i n u e d t o l i v e a t t h e d e f e n -
d a n t ' s a p a r t m e n t , s t a y i n g w i t h Chad w h i l e d e f e n d a n t worked.
Defendant t e s t i f i e d t h a t s h e c o u l d n o t make Dobson l e a v e .
S h e had t r i e d t o l o c k him o u t o f t h e h o u s e , b u t he always
forced h i s way b a c k i n by coming t h r o u g h t h e windows or
p i c k i n g t h e l o c k on t h e d o o r .
On F e b r u a r y 2 2 , 1 9 7 8 , Chad was t a k e n t o t h e h o s p i t a l
by Dobson. C h a d ' s body was c o v e r e d w i t h numerous b r u i s e s .
H e had a s e v e r e l y d i s t e n d e d s t o m a c h and was showing no s i g n
of life. The c h i l d was p r o n o u n c e d dead a t t h e h o s p i t a l .
The c a u s e o f h i s d e a t h was e x t r e m e s h o c k r e s u l t i n g f r o m a
r u p t u r e d stomach.
I n s t a t e m e n t s t o t h e p o l i c e and i n h e r own t e s t i m o n y
at trial, defendant o u t l i n e d t h e r o l e she played i n Chad's
death. When s h e woke up a t a b o u t 1 1 : O O a.m. o n F e b r u a r y 22,
Chad seemed fine. She s a i d t h a t s h e gave t h e c h i l d h i s
l u n c h , i n c l u d i n g some c a k e . D e f e n d a n t r e c a l l e d t h a t Dobson
became a n g r y b e c a u s e s h e had g i v e n Chad c a k e when h e had n o t
f i n i s h e d h i s sandwich. She t e s t i f i e d that while s h e was
w a t c h i n g t e l e v i s i o n , Dobson was w h i s p e r i n g w h a t s h e assumed
w e r e t h r e a t s t o t h e boy a n d t h e boy r e s p o n d e d by y e l l i n g ,
"No! No!" and h i t t i n g Dobson. Then t h e boy y e l l e d , "Mommy,
my tummy h u r t s . "
Defendant left for work at about 2:00 p.m. that
afternoon. Dobson c a l l e d h e r a t work a t a b o u t 3:00 p.m.
s a y i n g t h a t Chad had b e e n v o m i t i n g . D e f e n d a n t t o l d Dobson
t o g i v e Chad some P e p t o - B i s m o l . A t a b o u t 4:15 that after-
n o o n , Dobson c a l l e d a g a i n s a y i n g t h a t Chad had f a l l e n down
some s t a i r s w h i l e r i d i n g h i s t r i c y c l e and was h u r t b a d l y .
D e f e n d a n t d i d n o t b e l i e v e t h a t Chad was h u r t badly
because Dobson called her at work many times each day,
t r y i n g t o p e r s u a d e h e r t o come home. Dobson would g e n e r a l l y
s a y t h a t s h e s h o u l d come home b e c a u s e Chad was h u r t . The
d e f e n d a n t t o l d Dobson s h e would be home for her break at
5:00 p.m. D e f e n d a n t r e t u r n e d home a b o u t 4 : 5 0 that after-
noon. Chad was c o n s c i o u s b u t p a l e . H e had b l o o d on h i s n o s e
and mouth, and h i s s t o m a c h was s w o l l e n .
Chad went l i m p when t h e d e f e n d a n t p l a c e d him i n h i s
high chair and l o o k e d , according t o defendant, "exhausted"
and "un c o m fo rt a b l e . " Also, according t o defendant, h e was
a b l e t o d r i n k a s m a l l amount o f Seven-Up.
Not r e c o g n i z i n g t h a t Chad was s e r i o u s l y i l l , d e f e n -
d a n t when back t o work a t a p p r o x i m a t e l y 5:30 p.m. A s soon
a s s h e a r r i v e d a t work, s h e r e c e i v e d a m e s s a g e t h a t Dobson
had called and he was taking Chad to Saint Patrick's
Hospital. D e f e n d a n t c a l l e d t h e h o s p i t a l t o make s u r e t h a t
Dobson was t h e r e and t h e n l e f t .
Chad showed no s i g n s o f l i f e when Dobson b r o u g h t him
i n t o t h e h o s p i t a l a t 6 : 0 0 p.m. The d o c t o r s i n t h e emergency
room t r i e d t o revive t h e boy, but at 6:45 p.m. Chad was
declared l e g a l l y dead.
The d o c t o r o n d u t y a t t h e e m e r g e n c y room when Chad
was brought in testified t h a t Chad had bruises on n e a r l y
e v e r y p a r t o f h i s body--his legs, buttocks, back, f a c e and
arms--and t h a t h e was i n e x t r e m e s h o c k . The d o c t o r f u r t h e r
t e s t i f i e d t h a t f o r t y - f i v e minutes p r i o r t o Chad's a r r i v a l a t
the hospital, it would have been obvious that he was
s e r i o u s l y ill.
A pathologist performed an autopsy on the child's
body the day after h i s death. The p a t h o l o g i s t testified
t h a t t h e b r u i s e s on t h e c h i l d ' s s t o m a c h w e r e a b o u t t h e same
a g e a s t h e o t h e r s and had o c c u r r e d two t o f i v e h o u r s b e f o r e
death. The l a r g e b r u i s e on t h e c h i l d ' s s t o m a c h , according
to the pathologist, was caused by a blunt force. The
pathologist further testified that there was evidence of
prior injuries both to the child's skull and stomach.
Defendant raises two issues on review: (1) whether
there is sufficient evidence to support the jury's verdict
that she was guilty of negligent homicide because she failed
to provide medical attention for her small child; and (2)
whether the District Court erred by admitting into evidence
color slides of the dead child taken by the pathologist
prior to the autopsy.
Because there is substantial evidence to support the
verdict and because the probative value of the slides out-
weighed any prejudicial effect, the defendant's conviction
is affirmed.
Under section 40-6-211, MCA, a parent entitled to
custody of a child must provide the child with support and
education suitable to his circumstances. In State v. Mally
(1961), 139 Mont. 599, 366 P.2d 868, we concluded that the
failure to obtain medical aid for one who is owed a duty is
a sufficient degree of negligence as to constitute involun-
tary manslaughter, provided death results from a failure to
act. 366 P.2d at 872. Likewise, in State v. Bischert
(1957) , 131 Mont. 152, 308 P. 2d 969, we noted that an omis-
sion to perform an act required by law can be the basis for
manslaughter. See also, State v. Parmenter (1968), 74
Wash.2d 343, 444 P.2d 680; Palmer v. State (1960), 223 Md.
341, 164 A.2d 467; and for a discussion of homicide based on
failure to provide medical attention see, 100 A.L.R.2d 483.
The defendant here would be guilty of negligent homicide if,
by failing to provide medical attention for her son, she
d i s r e g a r d e d a r i s k o f which s h e s h o u l d have been aware, and
t h e r i s k was s o g r e a t t h a t t o d i s r e g a r d i t was a g r o s s d e v i -
a t i o n from a r e a s o n a b l e s t a n d a r d o f conduct. See s e c t i o n
45-5-104, MCA, and s e c t i o n 4 5 - 2 - 1 0 1 ( 3 7 ) , MCA.
The f a c t s s u r r o u n d i n g C h a d ' s d e a t h s u p p o r t t h e j u r y ' s
finding t h a t defendant grossly deviated from a reasonable
s t a n d a r d o f c a r e when s h e f a i l e d t o p r o v i d e m e d i c a l a t t e n -
t i o n f o r her three-year-old son. D e f e n d a n t ' s own t e s t i m o n y ,
t h e t e s t i m o n y o f t h e d o c t o r s i n t h e e m e r g e n c y room, and t h e
t e s t i m o n y o f t h e p a t h o l o g i s t show t h a t on F e b r u a r y 22, 1 9 7 8 ,
Chad was s e r i o u s l y i l l a t 5:00 p.m. when d e f e n d a n t came home
f o r her break. A c c o r d i n g t o t h e emergency room d o c t o r s , t h e
s e r i o u s n e s s of Chad's i n j u r i e s would h a v e b e e n o b v i o u s to
anyone. Further, t h e y t e s t i f i e d t h a t had Chad b e e n b r o u g h t
t o t h e h o s p i t a l w h i l e c o n s c i o u s and a b l e t o d r i n k l i q u i d s ,
i n a l l l i k e l i h o o d h i s l i f e c o u l d have been s a v e d .
By d i s r e g a r d i n g t h e s e r i o u s n e s s o f C h a d ' s i n j u r i e s - -
t h e b r u i s e s on h i s b o d y , h i s v o m i t i n g , t h e b l o o d o n h i s n o s e
a n d mouth, t h e d i s t e n t i o n o f h i s s t o m a c h , h i s p a l l o r and t h e
d i l a t i o n of h i s eyes--defendant acted negligently within the
meaning o f s e c t i o n 4 5 - 2 - 1 0 1 ( 3 7 ) , MCA. Defendant r e f u s e d t o
acknowledge to herself t h a t Chad was seriously ill. The
r e c o r d shows ample p r o o f o f C h a d ' s o b v i o u s n e e d f o r m e d i c a l
c a r e and d e f e n d a n t ' s f a i l u r e t o p r o v i d e i t .
Defendant n e x t contends t h a t t h e admission of color
s l i d e s t a k e n by t h e p a t h o l o g i s t p r i o r t o t h e autopsy were
too prejudicial and were submitted only to arouse the
sympathies of the jury. Defendant c l a i m s that the color
s l i d e s w e r e n o t n e c e s s a r y s i n c e t h e b l a c k and w h i t e p h o t o -
graphs of the child t a k e n by a policeman a t the hospital
were sufficient to show Chad's death. Citing State v.
Bischert, supra, defendant claims the color slides should
have been excluded.
It is well established in this state that the trial
court has the discretion to allow into evidence duly veri-
fied photographs to aid the jury in its fact-finding
process. State v. Mackie (1981), - Mont. -, 622 P.2d
673, 38 St.Rep. 86. As we stated in the often-quoted case
of Fulton v. Choteau County Farmers' Co. (1934), 98 Mont.
48, 37 P.2d 1025, 1029:
". . . photographs stand on the same footing
as diagrams, maps, plans, and the like, and
as a general rule, whenever relevant to de-
scribe a person, place, or thing, they are
admissible for the purpose of explaining and
applying the evidence and assisting the court
and jury in understanding the case."
Here, because the color slides showed the extent of
Chad's injuries more clearly than the black and white
photographs, they helped the jury to determine the reason-
ableness of the defendant's actions.
While we found that admission of the color slides in
Bischert was reversible error, we emphasized that failure to
provide medical care was not in issue. Here, the defendant's
failure to provide medical attention is the central and con-
trolling issue. Further, the pathologist in Bischert said
he did not need the colored slides to explain his findings.
Here, the pathologist explicitly testified that he preferred
to use his own color slides in order to be as accurate as
possible.
The color slides are therefore admissible since their
probative value outweighed any prejudicial effect they may
have had. See State v. O'Donnell (1972), 159 Mont. 138, 496
The judgment of t h e District Court is affirmed.
W e concur: