Tarpeh v. United States

FISHER, Associate Judge,

dissenting:

I conclude that the evidence was sufficient to support the conviction for criminal neglect of a vulnerable adult.

There is no doubt that appellant found herself in a difficult situation and faced some difficult choices. Nevertheless, the action she took caused enormous harm to Young, a vulnerable adult. Viewed in light *1273of our deferential standard of review,1 the record supports the trial court’s conclusion that appellant acted with reckless indifference to the well-being of her patient.

I.

When the nurse at the Veterans Affairs Medical Center explained that the Washington Hospital Center (‘WHC”) was across the street, Tarpeh decided that they could still make Young’s dental appointment. She pushed Young outside toward what she thought was the WHC. In fact, Tarpeh was headed in the wrong direction, toward a third hospital in the same complex, the National Rehabilitation Hospital (“NRH”).

After several minutes of being pushed in the wheelchair, Young began “screaming.” Tarpeh stopped and asked what was wrong, but Young could only moan. Tar-peh then noticed that the blanket covering Young was caught under one of the tires of the wheelchair, so she extracted the blanket, tucked it further underneath Young, and continued to wheel her towards the NRH.

As Tarpeh continued pushing, Young moaned again. She began “fighting and she took the blanket and threw it in the street[.]” At this point, Tarpeh thought that “probably maybe something is wrong with her foot or something.” “So I lift the blanket up and I saw her foot was bent under the chair.... [And] that’s when I knew there was no footrests on the wheelchair.” In addition, Tarpeh saw that Young had no shoes on, and her feet were covered only with socks. Tarpeh and Young were still at least three minutes away from the NRH.

Tarpeh decided to continue pushing Young across the street toward the NRH. But Young, who weighed 250 to 300 pounds, began to “slide off the chair.” Over the next few minutes, Young’s feet continued dragging across the cement, and Tarpeh saw that Young by then had lost her socks as well. Tarpeh testified that “[t]he reason why her foot was on the ground [was] because she was fighting in the chair.” Tarpeh related that Young was “moaning,” “wrestling in the chair,” and that a “person said her foot was bleeding[.]”

Special Police Officer (“SPO”) Rosendo Mejia was working at the front desk of the NRH when he saw Tarpeh and Young approach. “First of all, what caught my attention was a lady coming in a wheelchair screaming, and my first thought was I hold her before she come any further inside because she was bleeding a lot from her feet.” Young “didn’t have no shoes, nothing like that” and Mejia agreed that “her foot [was] dragging on the floor as the chair was moving[.]” Mejia described how Young’s toes had become “folded under what would have been the top of the foot[,]” so that “[t]he top of her foot was on the ground” underneath the wheelchair. Blood was coming from Young’s toes and she was “screaming” “[r]eally loud, a lot of pain.”

“Because she was bleeding a lot and we didn’t want no blood coming inside,” SPO Mejia told Tarpeh to stop pushing Young. As Mejia watched, a pool of blood devel*1274oped on the carpet beneath Young, which Mejia estimated was “at least three feet corner to corner around that area where her feet was[.]” “It’s a lot of blood all the way around because she was bleeding a lot.”

Mejia issued a rapid response alert and NRH Nursing Supervisor Valerie Canty responded to the scene. Before she had even reached the lobby, Canty “heard a loud moaning from an individual.” She ran in and saw Tarpeh standing with Young, who was “almost sliding out of her [wheeljchair”; Nurse Canty did not see anything on Young’s feet. “The tip of her buttock was nearing the, the front of the chair and it looked like at any minute she was going to fall out of it.” Young was “screaming in pain” and bleeding profusely. “I saw a foot extended [and] a bleeding great toe, spurting forth blood, and I saw like a pool of blood underneath the foot of the individual. It was her right foot and it was the right great toe that had an open area that was spewing forth blood.” Canty saw “a 16-inch diameter pool of blood underneath her foot and ... a nickel sized open fleshy area where the tip of her great toe would be[.]” The toe had no “nail or anything!.]” She immediately began attending to the foot.

Meanwhile, Melissa Brown, a NRH Security Officer, had been patrolling on the second floor of the hospital when she heard “a very loud scream.” “The scream was so loud, I knew exactly where to go at the time I heard it.” Seconds later, she received Mejia’s rapid response call and responded to the first floor lobby where she found Young. Nurse Canty had already begun bandaging the victim’s foot, which was bleeding freely. Brown remembered that there “was so much blood leaking out of her foot that while the bandage was being wrapped, it was turning red at the same time.” While the nurse was bandaging Young, “she just screamed. I mean screamed, and she was jumping back in her chair, putting her head back, like she was trying to tell us to stop, basically.” “[H]er eyes were just bulging.”

Dr. Gerald Chai, a NRH resident physician, arrived shortly afterward and “saw Ms. Young sitting in her wheelchair moaning and screaming.” Dr. Chai quickly began addressing a “friction wound” “located on the top of the great toe of the right foot.” Because “[t]here was a lot of bleeding coming from the wound[,]” Dr. Chai “applied direct pressure for close to five minutes, ... [but after doing so] it was still bleeding and it didn’t seem like the rate of flow was decreased.”2

Once the doctors were able to wrap Young’s foot and staunch the flow of blood, Young was taken to the Washington Hospital Center, where she was seen by Dr. James Cobey, an orthopedic surgeon. Dr. Cobey observed an open wound on Young’s foot “an inch by an inch that was abra[d]ed down to the bone[.]” Dr. Cobey described it as “a horrible wound” that “ripped off the tissue down to the bone[,]” although it “didn’t break the bone.” Dr. Cobey testified that Young was malnourished, causing her skin tissues to be friable, meaning that they “[b]reak[] easily, the skin can just break and tear apart.” Because of her condition and the severity of the wound, Dr. Cobey eventually had to amputate Young’s toe.

After the conclusion of the evidence, Judge Pan credited the testimony of each of the government’s witnesses, and discredited some of Tarpeh’s testimony about the events of February 23, 2009. The discredited portion of her testimony seems *1275to have related primarily to whether other people assisted Tarpeh and whether she had been cradling Young’s foot to keep it from dragging on the ground. However, many of Judge Pan’s findings of fact were based on the testimony of Tarpeh, demonstrating that the court credited key parts of Tarpeh’s testimony.

II.

Judge Pan identified the primary question as “whether the conduct here was criminal as opposed to merely negligent. The standard, as expressed in the statute, is that I would need to find that the defendant knowingly, willfully or through a wanton reckless or willful indifference failed to discharge a duty to provide care and services ... that a reasonable person would deem essential for the wellbeing of the vulnerable adult.”

The government proceeded on a theory of recklessness, which it defined as “disregarding] a substantial risk of the prohibited result,” relying on language from Jones v. United States, 813 A.2d 220 (D.C.2002), a case involving cruelty to children, another class of vulnerable persons. “Recklessly means that the defendant was aware of and disregarded the grave risk of bodily harm created by his conduct.” Id. at 225 (quoting jury instruction with approval). In this context, recklessly “does not connote ‘malice’ or ‘evil intent.’” Id. Moreover, “a defendant’s awareness of a particular fact or risk is ... seldom capable of direct proof and must generally be inferred, if at all, from circumstantial evidence.” Thomas v. United States, 557 A.2d 1296,1300 n. 7 (D.C.1989).

The government argued that Tarpeh was reckless from the moment she left Leewood for failing to check on the condition of Young and the wheelchair. Judge Pan rejected this theory, and instead made her determination “base[d] ... on the period of time from when she was aware that there was a problem[.]” Judge Pan concluded “that the defendant was on notice from the first corner where Young screamed and moaned[.]” It was “at this point the defendant knew there were no footrests on the wheelchair” and “that this was a problem[.]” Despite being aware that “the complaining witness’s foot dragged on the ground for that distance,” Tarpeh “nevertheless pushed the wheelchair from that corner to the National Rehabilitation Center.” “So the conduct that I think was reckless was, once she realized that there was a problem with the foot, the foot was dragging on the ground, that she continued to push the wheelchair, and continued to push it until she got to the NRH, at least three minutes away, probably more.... And so I do find that that conduct meets the standard of recklessness or wanton reckless or willful indifference that is required in the statute.”

I agree.

. We give " 'full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’ " Rivas v. United States, 783 A.2d 125, 134 (D.C.2001) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). This court "must deem the proof of guilt sufficient if, ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " Id.

. Dr. Chai noted later that Young was diabetic and taking a drug called Heparin, an anticoagulant, which "thins out the blood and it prolongs some of the bleeding time[.]”