No. 95-012
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gary E. Wilcox, Yellowstone County Public Defenders,
Billings, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Carol Schmidt, Ass't Attorney General, Helena,
Montana
Dennis Paxinos, Yellowstone County Attorney,
Marcia Good Sept, Deputy County Attorney, Billings,
Montana
Submitted on Briefs: November 2, 1995
Decided: December 19, 1995
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Clayton Andrews (Andrews) was convicted by jury verdict of two
counts of felony aggravated assault and sentenced to a ten-year
term of imprisonment on each count, with the sentences to run
concurrently. He appeals from the judgment and sentence entered by
the Thirteenth Judicial District Court, Yellowstone County, on one
count only. We reverse.
The issue on appeal is whether sufficient evidence supports
the jury's guilty verdict on Count I, the aggravated assault
alleged to have occurred on or about March 2, 1993.
Andrews and Dawn Lamar (Lamar), have two daughters, Ashley and
Brittany. Andrews cared for the children while Lamar worked her
4:00 a.m. to 2:00 p.m. shifts. Lamar cared for them while Andrews
was at work, generally from 3:00 p.m. until 11:OO p.m.
Lamar did not notice any problems with Brittany when putting
her to bed on March 1, 1993. As she left for work on March 2, she
observed that Brittany was sleeping. Andrews called Lamar at work
at approximately 7:00 that morning. He told her that Brittany had
stopped breathing and that he needed Brittany's doctor's telephone
number. Andrews also called 911 and an ambulance arrived soon
thereafter. Richard Oberweiser, an emergency medical technician,
examined Brittany. He informed Andrews that Brittany did not
appear to be ill enough to require an ambulance to transport her to
the hospital.
Lamar returned home within 20 minutes of Andrews' call, by
which time the ambulance had left the apartment. Lamar changed
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Brittany's clothes because they had vomit on them and, immediately
thereafter, she and Andrews took Brittany to see Dr. Lawrence A.
Hemmer, Jr., a family practitioner who was Brittany's regular
doctor. Dr. Hemmer examined Brittany and determined that she was
suffering from esophageal reflux; in everyday terminology, Brittany
was "spitting up." Dr. Hemmer prescribed Reglan to control the
reflux.
Brittany's condition worsened over the next few days and Lamar
took her back to Dr. Hemmer on March 8. In Dr. Hemmer's view,
Brittany's loss of 23 ounces in 6 days was very unusual. The
weight loss, together with Brittany's fever and lethargy, formed
the basis for Dr. Hemmer's decision to admit her to the hospital.
Dr. Hemmer also was concerned that Brittany had some type of
infection, but he ruled out that possibility based on the results
of various tests. Brittany became rehydrated and gained most of
her weight back while she was in the hospital; she was discharged
on March 11, 1993. Dr. Hemmer did not know at that time what
caused Brittany to become ill. Two days later, Dr. Hemmer did a
follow-up examination of Brittany and noted that she seemed to be
doing better.
On March 14, 1993, Brittany was transported to the hospital by
ambulance. Dr. John Patrick Sauer, a pediatrician with special
training in the area of child abuse and neglect, examined her and,
based on her symptoms and various test results, concluded that she
had suffered a nonaccidental trauma and had shaken baby syndrome.
He also concluded that shaken baby syndrome was the proper
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diagnosis for Brittany when she was first hospitalized on March 8.
Dr. Hemmer agreed with Dr. Sauer in this regard, concluding that he
had misinterpreted Brittany's earlier symptoms and, as a result,
had "missedl' shaken baby syndrome.
In June of 1993, the State of Montana (State) charged Andrews
with two counts of felony aggravated assault pursuant to § 45-S-
202 (11, MCA; the State alleged that the first assault occurred on
or about March 2, 1993, and that the second occurred on or about
March 14, 1993. Andrews pled not guilty to both counts. The case
was tried to a jury which convicted Andrews of both counts of
aggravated assault. The District Court sentenced Andrews to a ten-
year term of imprisonment on each count, with the sentences to run
concurrently.
Andrews appeals solely from his conviction on Count I.
Accordingly, we limit our review to that charge, the aggravated
assault of Brittany which allegedly occurred on or about March 2,
1993. Additional facts are set forth in the following discussion
where necessary.
Does sufficient evidence support the jury's guilty
verdict on Count I, the aggravated assault alleged to
have occurred on or about March 2, 1993?
Andrews argues on appeal that the State presented insufficient
evidence to prove its case regarding the aggravated assault alleged
to have occurred on or about March 2, 1993. While he presents
several contentions in this regard, Andrews' argument that there is
insufficient evidence on the "serious bodily injury" element of the
offense of aggravated assault is dispositive.
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Our standard in reviewing the sufficiency of the evidence for
a criminal conviction is whether, after reviewing the evidence in
a light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the offense beyond
a reasonable doubt. State v. Mergenthaler (1994), 263 Mont. 198,
203, 868 P.2d 560, 562 (citing State v. McLain (1991), 249 Mont.
246, 815 P.2d 147, 150).
Section 45-5-202(l), MCA, provides that "[al person commits
the offense of aggravated assault if he purposely or knowingly
causes serious bodily injury to another." As charged in this case,
serious bodily injury is statutorily defined as "bodily injury
which creates a substantial risk of death or which causes . . .
protracted loss or impairment of the function or process of any
bodily member or organ." Section 45-2-101(59), MCA (1991).
The evidence from which a jury could find that Andrews caused
mere bodily injury to Brittany by shaking her on March 2, 1993, is
overwhelming. Brittany's condition deteriorated after Dr. Hemmer
examined her on March 2 and, as a result, she was hospitalized
March 8 through 11 due to severe dehydration, weight loss, a fever
and lethargy. However, no one testified or even implied that
Brittany's injuries and these conditions resulting from the March
2 shaking were life-threatening or, in the words of § 45-2-101(59),
MCA (lPPl), that they created a "substantial risk of death."
Moreover, the State did not present evidence that Brittany has
protracted loss or impairment of the function or process of any
bodily member or organ as a result of the March 2 shaking.
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