State v. Sheikhuna

312 Or.App. 57

492 P.3d 659

STATE of Oregon, Plaintiff-Respondent,

v.Awes SHEIKHUNA, aka Awes Sheikhuma, Defendant-Appellant.

A164153

Court of Appeals of Oregon.

Argued and submitted January 15, 2019.

June 3, 2021

Meredith Allen, 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.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before DeHoog, Presiding Judge, and DeVore, Judge, and Aoyagi, Judge.^*

DeHOOG, P. J.

Defendant's three-month-old infant suffered catastrophic brain damage while in defendant's care. Defendant was tried by a jury and now appeals a judgment of conviction for first-degree assault, ORS 163.185, and first-degree criminal mistreatment, ORS 163.205, raising four assignments of error. We reject his first and second assignments of error without discussion. We write to address his third and fourth assignments, in which he contends that the trial court erred in denying his motion for judgment of acquittal (MJOA) on both counts, because, in his view, the evidence was insufficient to prove that he intentionally or knowingly caused injury to the child. As explained below, we conclude that the trial court did not err in denying defendant's MJOA, and, therefore, we affirm.

In a supplemental assignment of error, defendant asserts that instructing the jury that it could return nonunanimous guilty verdicts constituted a structural error requiring reversal. Although the instruction violated the Sixth Amendment, Ramos v. Louisiana , 590 U.S. ––––, 140 S. Ct. 1390, 1396, 206 L. Ed. 2d 583 (2020), the Oregon Supreme Court has held that providing a nonunanimous jury instruction is not a structural error that requires reversal in every case, State v. Flores Ramos , 367 Or. 292, 319, 478 P.3d 515 (2020). The verdicts here were unanimous, and, therefore, the error was harmless. Id. at 329, 478 P.3d 515. We reject that supplemental assignment.

When reviewing a trial court's denial of an MJOA, "we view the evidence in the light most favorable to the state to determine whether a rational trier of fact, making reasonable inferences, could find the essential elements of the crime beyond a reasonable doubt." State v. Peterson , 309 Or. App. 31, 34, 482 P.3d 68 (2021) (internal quotation marks omitted). "Where the state has sought to establish an element of the crime by reasonable inference, whether sufficient evidence supports the inference is a question of law for the court." State v. Garibay , 307 Or. App. 722, 724, 478 P.3d 1006 (2020) (internal quotation marks omitted). We state the pertinent facts accordingly.

The victim in this case is defendant's son, N, who was three months old at the time of the incident giving rise to defendant's convictions. N suffered a traumatic brain injury, a ligamentous spine injury, and bruising on his thigh. Most of his brain tissue died; he is blind, cannot understand anything that is spoken to him, cannot make intentional body movements, has no sensation of touch, cannot make or retrieve memories, and is fed through a feeding tube. The part of his brain that is intact, the brainstem, controls his respiration and heartbeat.

N's mother, Gallow, and defendant, both of whom immigrated to the United States as adults, are married under the cultural practices of their native country. They have two children together: N, and N's brother, H, who is a year older than N. At the time of the underlying incident, Gallow lived in an apartment with the two children and worked the swing shift as a janitor. Defendant did not live with Gallow and the children, but he would come to her apartment and provide childcare while she was at work. N was a fussy baby. Unlike H, who was a calm and good baby, N cried a lot.

On June 15, 2015, Gallow cared for the children in the morning and left for work that afternoon at around 3:00 p.m. Defendant cared for the children after Gallow left. According to Gallow, N had been sick in the days leading up to June 15; he was crying a lot, throwing up, would not take milk, and had been running a fever. The night before, "he was fussing so much [Gallow] didn't get enough sleep." That afternoon, defendant took N to an urgent care appointment with a physician's assistant, Norman, at the medical office where N had been seen two prior times.

Norman understood that defendant had brought N in for the appointment because he had nasal congestion and was not feeding properly. Norman performed a physical exam on N that included an examination of N's head, which did not raise any concerns for Norman. N was alert, was not lethargic, and did not exhibit any difficulty breathing. Norman noted that N had nasal congestion, and she showed defendant how to clear N's nasal passages so that he could eat while breathing through his nose.

After the medical appointment, defendant returned to the apartment with the two children. According to defendant, N continued to cry and would not take his bottle; at some point defendant put N in an infant swing. At 6:11 p.m., defendant called 9-1-1 and requested an ambulance. He told the dispatcher that he had "a little kid here" and that "something is wrong with him." He said, "I don't know what's going on with this kid. He can't even take breaths." He also reported that "it almost seems like he's died," and "he doesn't cry. He doesn't move." An ambulance was dispatched, and N was transported to Oregon Health & Science University (OHSU) hospital. Upon arrival in the emergency department, N was minimally responsive and had minimal breathing; he was immediately intubated and ventilated, and he was in very serious condition and unstable for the first 24 to 36 hours. N was eventually admitted to the pediatric intensive care unit (PICU) at OHSU Doernbecher Children's Hospital. He spent approximately six weeks in the hospital, and multiple physicians independently diagnosed him with abusive head trauma.

Due to N's injuries, defendant was indicted on one count of first-degree assault, ORS 163.185(1), for "unlawfully, intentionally and knowingly caus[ing] serious physical injury to [N], a child under six years of age," and one count of first-degree criminal mistreatment, ORS 163.205, for "unlawfully and intentionally and knowingly caus[ing] physical injury to [N]" "in violation of a legal duty to provide care for and having assumed the care, custody and responsibility for the supervision of [N], a dependent person." He proceeded to a jury trial.

At trial, the state's theory was that N had been seriously injured sometime between leaving his primary care physician's office and the call to 9-1-1. According to the state, defendant, who was the only adult with N during that time, did something to cause the injuries to N. The state reasoned that, although there had been no witnesses to what exactly had taken place—that is, other than defendant, N, and possibly N's brother—whatever defendant had done had to have been assaultive in nature and defendant would have been aware of the assaultive nature of his own conduct. To support that theory, the state called witnesses to describe N's injuries and the level of force and mechanism that would have been necessary to cause those injuries.

Dr. Thomas Valvano, a physician who is board certified in general pediatrics and in child abuse pediatrics and who works in the Suspected Child Abuse and Neglect Program (SCAN) at Doernbecher Children's Hospital, testified. After N was brought to the hospital, the SCAN team was asked to consult on his case. Valvano was the doctor on call that evening, and he received a call from the emergency department; he saw N in person for the first time the next day. Ultimately, after ruling out other potential diagnoses, Valvano diagnosed N as having suffered an abusive head trauma¹ —a diagnosis that was clear cut in this case and that Valvano had no question about. Valvano explained that "abusive head trauma" is a recognized medical diagnosis and that it means

"injury to the head and specifically the brain. That results from acceleration/deceleration type forces to the brain that causes brain injury and often constellation of other findings, as well, including hemorrhage, bleeding around the brain, often bleeding in the retinas of the eyes, and less commonly but also * * * things like fractures, the most common being rib fractures and possibly, but not necessarily, other injuries to other parts of the skin or the body."

Valvano also explained that the term "shaken baby syndrome" was commonly used until 2009

"to describe the injuries we see from abusive head trauma. Shaking is one of the mechanisms of inflicting this kind of trauma on an infant, and so that was a term that was commonly used both medically and by—in the press and by, you know, just as sort of a common term that you would hear about, but it doesn't really fully encompass the scope of abusive head trauma because we know that you can inflict these injuries on an infant without just shaking or without shaking at all, so shaking is one of the mechanisms but not the only mechanism that can result in the findings we see with abusive head trauma, so * * * we're now using a broader term in recognition of the fact that there's more than one way to inflict these injuries."

Valvano testified that the "Number 1 trigger" for inflicted (nonaccidental) trauma in infants is infant crying. When explaining the difference in symptoms that a child would exhibit with an accidental head trauma compared to an inflicted head trauma, Valvano said that inflicted head trauma tends to be "deeper, more severe and have more significant consequences. It tends to be more diffuse, affecting the entire brain, and specifically with inflicted head trauma [they] often see * * * other findings, such as retinal hemorrhages and...