STATE v HOFFMAN
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No. 14812 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981 STATE OF MONTANA, Plaintiff and Respondent, BONNIE LEE HOFFMAN, Defendant and Appellant. Appeal from: District Court of the Fourth Judicial District, In and for the County of Missoula Honorable Jack L. Green, Judge presiding Counsel of Record: For Appellant: Garnaas, Hall, Riley & Pinsoneault, Missoula, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Robert L. Deschamps 111, County Attorney, Missoula, Montana Submitted on briefs: October 1, 1981 Decided: January 14, Filed: JAN 14 1982 1982 Mr. J u s t i c e Gene B . D a l y d e l i v e r e d t h e O p i n i o n o f t h e C o u r t . The d e f e n d a n t , B o n n i e Lee Hoffman, was c h a r g e d w i t h n e g l i g e n t h o m i c i d e u n d e r s e c t i o n 45-5-104, MCA, b a s e d on h e r f a i l u r e t o provide medical a t t e n t i o n f o r her three-year-old son. S h e was c o n v i c t e d a f t e r a j u r y t r i a l i n t h e D i s t r i c t C o u r t o f t h e F o u r t h J u d i c i a l D i s t r i c t , M i s s o u l a C o u n t y , and received a ten-year Bonnie suspended sentence. Lee Hoffman m e t Kinley t h e y w e r e b o t h l i v i n g i n C u t Bank, Dobson in Montana. 1 9 7 4 when The defendant was s i x t e e n a t t h e t i m e ; Dobson was t w e n t y - f o u r and m a r r i e d . The d e f e n d a n t became p r e g n a n t by Dobson, a n d on F e b r u a r y 1 6 , 1 9 7 5 , t h e i r s o n , Chad, was b o r n . Dobson and t h e d e f e n d a n t d i d n o t g e t m a r r i e d a t t h i s time b u t c o n t i n u e d t o s e e o n e a n o t h e r p e r i o d i c a l l y o v e r t h e n e x t few y e a r s . Dobson and t h e d e f e n d a n t had a v o l a t i l e and v i o l e n t relationship, which ended with the death of their young child. I n August They lived 1977, together Dobson and i n Missoula, the defendant Montana, married. where d e f e n d a n t had a j o b a s a key-punch o p e r a t o r a t a b a n k . S h e worked f r o m a b o u t 2:00 p.m. u n t i l 10:OO p.m. Dobson was unemployed and s t a y e d a t home w i t h t h e i r t w o - y e a r - o l d After violent. a b o u t a month, Dobson frequently s o n , Chad. the relationship again turned threatened p h y s i c a l l y a b u s e d b o t h h e r and t h e c h i l d . the defendant and I n December 1 9 7 7 , a f t e r d e f e n d a n t had s t a y e d w i t h f r i e n d s and i n a s h e l t e r f o r b a t t e r e d women, s h e d i v o r c e d Dobson. Dobson, n e v e r t h e l e s s , c o n t i n u e d t o l i v e a t t h e d e f e n d a n t ' s a p a r t m e n t , s t a y i n g w i t h Chad w h i l e d e f e n d a n t worked. Defendant t e s t i f i e d t h a t s h e c o u l d n o t make Dobson l e a v e . S h e had t r i e d t o l o c k him o u t o f t h e h o u s e , forced h i s way b a c k i n by coming t h r o u g h b u t he always t h e windows or p i c k i n g t h e l o c k on t h e d o o r . On F e b r u a r y 2 2 , 1 9 7 8 , Chad was t a k e n t o t h e h o s p i t a l by Dobson. C h a d ' s body was c o v e r e d w i t h numerous b r u i s e s . H e had a s e v e r e l y d i s t e n d e d s t o m a c h and was showing no s i g n of The c h i l d was p r o n o u n c e d life. dead a t t h e h o s p i t a l . The c a u s e o f h i s d e a t h was e x t r e m e s h o c k r e s u l t i n g f r o m a r u p t u r e d stomach. I n s t a t e m e n t s t o t h e p o l i c e and i n h e r own t e s t i m o n y at trial, death. Chad defendant o u t l i n e d t h e r o l e she played i n Chad's When s h e woke up a t a b o u t 1 1 : O O seemed fine. a.m. o n F e b r u a r y 22, She s a i d t h a t s h e gave t h e c h i l d h i s l u n c h , i n c l u d i n g some c a k e . D e f e n d a n t r e c a l l e d t h a t Dobson became a n g r y b e c a u s e s h e had g i v e n Chad c a k e when h e had n o t f i n i s h e d h i s sandwich. She t e s t i f i e d that while s h e was w a t c h i n g t e l e v i s i o n , Dobson was w h i s p e r i n g w h a t s h e assumed w e r e t h r e a t s t o t h e boy a n d t h e boy r e s p o n d e d by y e l l i n g , "No! No!" and h i t t i n g Dobson. Then t h e boy y e l l e d , "Mommy, my tummy h u r t s . " Defendant afternoon. left for work Dobson c a l l e d h e r at a t work s a y i n g t h a t Chad had b e e n v o m i t i n g . t o g i v e Chad some P e p t o - B i s m o l . about 2:00 p.m. a t a b o u t 3:00 that p.m. D e f e n d a n t t o l d Dobson A t a b o u t 4:15 that after- n o o n , Dobson c a l l e d a g a i n s a y i n g t h a t Chad had f a l l e n down some s t a i r s w h i l e r i d i n g h i s t r i c y c l e and was h u r t b a d l y . D e f e n d a n t d i d n o t b e l i e v e t h a t Chad was h u r t because Dobson called her at work t r y i n g t o p e r s u a d e h e r t o come home. many times each badly day, Dobson would g e n e r a l l y s a y t h a t s h e s h o u l d come home b e c a u s e Chad was h u r t . The d e f e n d a n t t o l d Dobson 5:00 p.m. s h e would be home for her D e f e n d a n t r e t u r n e d home a b o u t 4 : 5 0 break at that after- H e had b l o o d on h i s n o s e noon. Chad was c o n s c i o u s b u t p a l e . and mouth, and h i s s t o m a c h was s w o l l e n . Chad went l i m p when t h e d e f e n d a n t p l a c e d him i n h i s high chair and l o o k e d , and "un c o m fo rt a b l e . " according t o defendant, Also, "exhausted" according t o defendant, h e was a b l e t o d r i n k a s m a l l amount o f Seven-Up. Not r e c o g n i z i n g t h a t Chad was s e r i o u s l y i l l , d e f e n d a n t when back t o work a t a p p r o x i m a t e l y 5:30 a s s h e a r r i v e d a t work, had called Hospital. and he p.m. A s soon s h e r e c e i v e d a m e s s a g e t h a t Dobson was taking Chad to Saint Patrick's D e f e n d a n t c a l l e d t h e h o s p i t a l t o make s u r e t h a t Dobson was t h e r e and t h e n l e f t . Chad showed no s i g n s o f l i f e when Dobson b r o u g h t him i n t o t h e h o s p i t a l a t 6 : 0 0 p.m. The d o c t o r s i n t h e emergency room t r i e d but t o revive t h e boy, at p.m. 6:45 Chad was declared l e g a l l y dead. The d o c t o r was brought in o n d u t y a t t h e e m e r g e n c y room when Chad testified e v e r y p a r t o f h i s body--his arms--and t h a t Chad had legs, bruises buttocks, t h a t h e was i n e x t r e m e s h o c k . on n e a r l y back, f a c e and The d o c t o r f u r t h e r t e s t i f i e d t h a t f o r t y - f i v e minutes p r i o r t o Chad's a r r i v a l a t the hospital, it would have been obvious that he was s e r i o u s l y ill. pathologist A body the day after performed h i s death. an autopsy on the The p a t h o l o g i s t child's testified t h a t t h e b r u i s e s on t h e c h i l d ' s s t o m a c h w e r e a b o u t t h e same a g e a s t h e o t h e r s and had o c c u r r e d two t o f i v e h o u r s b e f o r e death. The l a r g e b r u i s e on t h e c h i l d ' s s t o m a c h , according to the pathologist, pathologist was further caused testified by a blunt force. The that there was evidence of prior injuries both to the child's skull and stomach. Defendant raises two issues on review: (1) whether there is sufficient evidence to support the jury's verdict that she was guilty of negligent homicide because she failed to provide medical attention for her small child; and (2) whether the District Court erred by admitting into evidence color slides of the dead child taken by the pathologist prior to the autopsy. Because there is substantial evidence to support the verdict and because the probative value of the slides outweighed any prejudicial effect, the defendant's conviction is affirmed. Under section 40-6-211, MCA, a parent entitled to custody of a child must provide the child with support and education suitable to his circumstances. In State v. Mally (1961), 139 Mont. 599, 366 P.2d 868, we concluded that the failure to obtain medical aid for one who is owed a duty is a sufficient degree of negligence as to constitute involuntary manslaughter, provided death results from a failure to 366 P.2d act. (1957) at 872. Likewise, in State v. Bischert , 131 Mont. 152, 308 P. 2d 969, we noted that an omis- sion to perform an act required by law can be the basis for manslaughter. Wash.2d See also, State 343, 444 P.2d v. Parmenter (1968), 74 680; Palmer v. State (1960), 223 Md. 341, 164 A.2d 467; and for a discussion of homicide based on failure to provide medical attention see, 100 A.L.R.2d 483. The defendant here would be guilty of negligent homicide if, by failing to provide medical attention for her son, she d i s r e g a r d e d a r i s k o f which s h e s h o u l d have been aware, and t h e r i s k was s o g r e a t t h a t t o d i s r e g a r d i t was a g r o s s d e v i a t i o n from a r e a s o n a b l e s t a n d a r d o f 45-5-104, MCA, conduct. and s e c t i o n 4 5 - 2 - 1 0 1 ( 3 7 ) , See s e c t i o n MCA. The f a c t s s u r r o u n d i n g C h a d ' s d e a t h s u p p o r t t h e j u r y ' s finding t h a t defendant grossly deviated from a reasonable s t a n d a r d o f c a r e when s h e f a i l e d t o p r o v i d e m e d i c a l a t t e n t i o n f o r her three-year-old son. D e f e n d a n t ' s own t e s t i m o n y , t h e t e s t i m o n y o f t h e d o c t o r s i n t h e e m e r g e n c y room, and t h e t e s t i m o n y o f t h e p a t h o l o g i s t show t h a t on F e b r u a r y 22, 1 9 7 8 , Chad was s e r i o u s l y i l l a t 5:00 p.m. f o r her break. A c c o r d i n g t o t h e emergency room d o c t o r s , t h e s e r i o u s n e s s of Chad's anyone. when d e f e n d a n t came home Further, i n j u r i e s would h a v e b e e n o b v i o u s to t h e y t e s t i f i e d t h a t had Chad b e e n b r o u g h t t o t h e h o s p i t a l w h i l e c o n s c i o u s and a b l e t o d r i n k l i q u i d s , i n a l l l i k e l i h o o d h i s l i f e c o u l d have been s a v e d . By d i s r e g a r d i n g t h e s e r i o u s n e s s o f C h a d ' s i n j u r i e s - t h e b r u i s e s on h i s b o d y , h i s v o m i t i n g , t h e b l o o d o n h i s n o s e a n d mouth, t h e d i s t e n t i o n o f h i s s t o m a c h , h i s p a l l o r and t h e d i l a t i o n of h i s eyes--defendant meaning o f s e c t i o n 4 5 - 2 - 1 0 1 ( 3 7 ) , acknowledge to herself acted negligently within the MCA. t h a t Chad was Defendant r e f u s e d t o seriously ill. The r e c o r d shows ample p r o o f o f C h a d ' s o b v i o u s n e e d f o r m e d i c a l c a r e and d e f e n d a n t ' s f a i l u r e t o p r o v i d e i t . Defendant n e x t contends t h a t t h e admission of s l i d e s t a k e n by t h e p a t h o l o g i s t p r i o r too prejudicial sympathies of and the were jury. submitted color t o t h e autopsy were only Defendant c l a i m s to that arouse the the color s l i d e s w e r e n o t n e c e s s a r y s i n c e t h e b l a c k and w h i t e p h o t o graphs of the child t a k e n by a policeman a t the hospital were sufficient to show Chad's death. Citing State v. Bischert, supra, defendant claims the color slides should have been excluded. It is well established in this state that the trial court has the discretion to allow into evidence duly verified photographs to aid the jury in State v. Mackie (1981), process. 673, 38 St.Rep. 86. its fact-finding - Mont. -, 622 P.2d As we stated in the often-quoted case of Fulton v. Choteau County Farmers' Co. (1934), 98 Mont. 48, 37 P.2d 1025, 1029: ". . . photographs stand on the same footing as diagrams, maps, plans, and the like, and as a general rule, whenever relevant to describe a person, place, or thing, they are admissible for the purpose of explaining and applying the evidence and assisting the court and jury in understanding the case." Here, because the color slides showed the extent of Chad's injuries more clearly than the black and white photographs, they helped the jury to determine the reasonableness of the defendant's actions. While we found that admission of the color slides in Bischert was reversible error, we emphasized that failure to provide medical care was not in issue. Here, the defendant's failure to provide medical attention is the central and controlling issue. Further, the pathologist in Bischert said he did not need the colored slides to explain his findings. Here, the pathologist explicitly testified that he preferred to use his own color slides in order to be as accurate as possible. The color slides are therefore admissible since their probative value outweighed any prejudicial effect they may have had. See State v. O'Donnell (1972), 159 Mont. 138, 496 The judgment of t h e District Court is affirmed. W e concur:
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