CONCURS IN PART/DISSENTS IN PART:
11 I coneur in the decision and analysis concerning the Obstructing an Officer charge (Count II). However, I dissent to the decision to reverse the trial judge's Order dismissing the Caretaker Neglect charge (Count I). The Opinion's analysis as to the dismissal of Count I proceeds upon the assumption that the trial court found 21 O.S. 1991, § 848 to be unconstitutional. In fact, it appears reasonably certain that the trial judge specifically found the statute to be constitutional, but found it was being unconstitutionally applied against this defendant. The Opinion notes this distinction but proceeds to analyze the statute as if it had been found to be unconstitutional for vagueness.
12 It seems fairly clear from the Judge's ruling that what he was concerned about was whether someone in the position of this defendant ("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.") who was an employee of the nursing home could in any event be determined to be a "caretaker" under 48A O.8.Supp.1997, § 10-108(6). That section defines a caretaker as someone who has the responsibility to *937care for a 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." The problem the trial judge had, in my opinion, was not that the statute is vague, but rather that it is clear. An employee of a nursing home would not, simply by virtue of their employment, be covered by the statute. Therefore, unless some evidence was presented at the preliminary hearing that there was a familial, volunteer, contractual, or friendship relationship then the statute could not be constitutionally applied to this defendant. The Opinion correctly notes that the issue of whether the defendant was a caretaker is a question for the jury. But before the issue can be presented to the jury the State must establish that a crime has been committed. It cannot do so unless it puts on some evidence of one of the relationships in § 10-108(6). It did not do so in this case.1
T3 This is a horrible case and nursing home abuse is in the news almost every night. These old folks, like children, are among the most vulnerable among us and they need special protection in my opinion. That said, however, I do not think this Court ought to extend criminal lability to lower level nursing home employees. If that is done it ought to be done by the legislature. I agree with the trial judge that the law, while quite constitutional, was being unconstitutionally applied in this case.
T4 Finally, I think we should carefully consider whether 22 0.S8.1991, § 1053.1 is applicable to a ruling that a statute is being unconstitutionally applied to a specific defendant. The Opinion concludes in footnote 2 that it is. The logical problem with that conclusion is that it makes all the rest of § 1058 superfluous since all decisions against the state ultimately involve the unconstitutional application of a statute to a defendant. To me, § 1058.1 applies where a trial judge has ruled a statute unconstitutional. Here, while the argument and the ruling are somewhat muddled, I would conclude that the trial judge's order in effect sustained a demurrer to the evidence and allow the appeal under § 1058(4).
. The State ought to characterize the defendant as a "volunteer"" in the Information and Amended Information. However, the evidence clearly indicated that she was an employee and not a volunteer. A volunteer is someone who gives his or her services without promise of being remunerated.