State v. Allen

321 Or.App. 678

517 P.3d 1055

STATE of Oregon, Plaintiff-Respondent,

v.Thomas John Robert ALLEN, Defendant-Appellant.

A166187

Court of Appeals of Oregon.

Submitted on remand August 3, 2022.

September 14, 2022

Marc D. Brown, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Jordan R. Silk, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Janis C. Puracal filed the brief amicus curiae for Forensic Justice Project.

Before Ortega, Presiding Judge, and Shorr, Judge, and James, Judge.

ORTEGA, P. J.

This case is before us on remand from the Supreme Court, which vacated our prior decision affirming defendant's convictions and remanded the case to us for reconsideration in light of State v. Owen , 369 Or. 288, 505 P.3d 953 (2022), and State v. McKinney/Shiffer , 369 Or. 325, 505 P.3d 946 (2022). State v. Allen , 369 Or. 855, 512 P.3d 446 (2022) ( Allen II ). Defendant appealed a judgment of conviction for first-degree assault (Count 1) and first-degree criminal mistreatment (Count 2) of his girlfriend's three-year-old child. On appeal, defendant primarily challenged the trial court's denial of his pretrial motion to exclude expert testimony that the child was diagnosed with abusive head trauma. We rejected that assignment and affirmed the trial court's ruling that the testimony was admissible scientific evidence. State v. Allen , 311 Or App 271, 277-91, 489 P.3d 555 (2021), vac'd and rem'd , 369 Or. 855, 512 P.3d 446 (2022) ( Allen I ). Defendant also argued that the trial court erred when it instructed the jury that it could reach a nonunanimous verdict, which we rejected as harmless error because the jury had returned unanimous verdicts. Id. at 273, 489 P.3d 555. The Supreme Court's remand does not implicate our reasoning on those two issues; thus, we readopt the analysis set out in our prior opinion and affirm the trial court's rulings.

Defendant raised two other issues in his appeal that are implicated by the Supreme Court's remand. In the first, defendant argued that the trial court erred in denying his motion for judgment of acquittal because the state had not proved that defendant knowingly caused the child serious physical injury or physical injury such that he could be convicted of first-degree assault or first-degree criminal mistreatment, respectively. Based on Owen , 369 Or. at 321, 505 P.3d 953, and as explained further below, we reject that argument and affirm.

Second, defendant argued that the trial court erred in failing to instruct the jury on an applicable mental state for the injury element of his charges. In our prior opinion, we concluded that defendant's argument was foreclosed by State v. Barnes , 329 Or. 327, 986 P.2d 1160 (1999), overruled in part , State v. Owen , 369 Or. 288, 505 P.3d 953 (2022). In light of the Supreme Court's action in Owen , which overruled that holding in Barnes , we conclude on remand that the trial court erred in refusing to give defendant's requested jury instruction that the mental state of criminal negligence applies to the injury element of both of his charges. However, we conclude that that error was harmless with respect to his conviction for first-degree criminal mistreatment and affirm that count. We further conclude that the error was not harmless with respect to the first-degree assault conviction and, thus, reverse and remand that count.

For context, we provide the following facts, as set out in our original opinion in this case:

"At the time of the conduct at issue here, defendant lived with his girlfriend and her two children—her five-year-old daughter and her son, R, who was almost three. Defendant would look after the children while their mother was at work. One morning while he was watching the children, defendant called 9-1-1 and reported that, when he went to wake R, he found the child was not breathing. He further reported that he tried CPR and put R into a cold bath. He also reported that R had recently had pneumonia and that, at the time of the call, he was breathing, but was not awake, and defendant was unable to wake him. Upon confirming that defendant had called 20 minutes after finding R, the 9-1-1 dispatcher asked why defendant did not call sooner. He responded that it was because he rushed R into a cold bath and performed CPR and ‘was freaking out.’

"During the call, defendant also reported that R ‘was run over by the dogs.’ Two days before the call, R went over to the family's two Labrador dogs while they were eating, and they knocked him down under their raised dog dishes, pressing his ear to the heater vent. Defendant reported that the dogs had ‘stomped’ on R ‘really hard.’ Defendant did not seek medical assistance at the time, and R said that he was okay. R's mother was at work during the incident with the dogs, but defendant and R told her about it that day and she observed that R's ear ‘looked like it was pinched’ and that he had a half-dollar-sized bruise on his back. Defendant later reported that R had also fallen and bumped his forehead on a concrete step a few days before, which gave R a ‘knot’ on his head.

"When first responders arrived following defendant's 9-1-1 call, they found R unconscious, pale, and without a detectable pulse. After they performed CPR, R's color improved, and they transported him by ambulance to the hospital. R was diagnosed with an ‘acute left convexity subdural hemorrhage,’ which means that he had subdural bleeding along the left side of his head. R's initial CT scan showed brain swelling and a hemorrhage on the left side of his brain, with indications that both old and new blood was present.

"R underwent emergency surgery to decrease the pressure on his brain and remove the blood. His neurosurgeon, Dr. Grewe, also noted that R had bruising on his left ear. The surgery, which involved removing a portion of R's skull, revealed that the hemorrhage consisted of all new blood and no old blood, which indicated an acute, or recent, injury. An acute injury would be one occurring within two days; it would not be a week-old injury. Two doctors who became involved in R's care after his surgery, Dr. Leonhardt and Dr. Lang, testified that, because the CT scan of R's brain suggested the presence of both old and new blood, it was likely that R had suffered a hyperacute injury—an injury that was hours old rather than days old; that would explain the impression of both older and newer blood on the CT scan, despite there being no ‘old’ blood present, as observed during surgery.

"After surgery, the ICU doctor was concerned that R would not survive the night and, because of the nature of his injuries, called Leonhardt for an immediate consult. Leonhardt is a pediatrician at Child Abuse Response and Evaluation Services (CARES) and specializes in treating abuse. Leonhardt observed that R did not appear to have a skull fracture or lumps on his head, which would indicate a contact injury. Leonhardt took photographs of bruises he observed on R, which included bruising on both the inside and outside of his left and right ear, on his back, and on his elbow, and included petechia—small broken blood vessels—on his lower neck near the collarbone. Leonhardt testified that the ear bruising was particularly concerning, because it was not in an area commonly injured by accident. He recommended additional medical evaluations and referred the case to Lang, another pediatrician who specializes in treating abuse with CARES.

"R's bloodwork did not reveal a bleeding disorder, X-rays showed that R had no additional injuries, an MRI of R's brain confirmed the subdural hemorrhage and indicated a ‘shear injury’ to R's brain itself, and an eye examination found in both R's eyes a few, scattered retinal hemorrhages, or bleeding in the eye. The shear injury to R's brain indicated ‘that the brain had gone through some acceleration and deceleration.’ The retinal hemorrhages were less conclusive. Lang explained that, in the case of abusive head trauma, children can have ‘very significant’ retinal hemorrhages, as in too many hemorrhages to count. R's results showed ‘more than what we would expect in an accident,’ but he ‘certainly [did not] have the retinal hemorrhages that are too many to count or that would be clearly almost diagnostic of abusive head trauma.’

"Grewe, R's neurosurgeon, testified that a shear injury is produced by trauma and that the type of injury to R implied that he suffered an acceleration and sudden deceleration. He also testified that he did not believe that R's fall on the concrete step or the incident with the dogs could have resulted in R's injury, because R did not experience loss of consciousness, scalp swelling, or skull fracture from those incidents and because ‘it takes a big trauma to produce what he had.’

"Leonhardt opined that all the results, including the absence of a contact injury, suggested that R's injury was an ‘acceleration/deceleration injury,’ which could occur if a child is violently shaken or thrown down onto a soft surface. * * *

"* * * * *

"Lang testified that bruising on R's torso, back, ears, and neck are ‘significantly associated with abuse.’ Lang also testified that the bruising and swelling on R's elbow ‘was outside the range of normal.’ In looking at R's case, Lang ruled out other causes for R's injury. Ultimately, taking into account the bruising and lack of a contact injury, Lang concluded that his brain injury ‘was most consistent with abusive head trauma and child physical abuse.’ Lang testified that, based on the severity of the injury, R would have become immediately symptomatic, indicating that his injury had to be caused within a few hours before R's first CT scan, which indicated a hyperacute injury. Lang also opined that R suffered ‘some sort of violent

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