Summary 2007 Wy 40

Summary of Decision issued March 12, 2007

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Case Name: Dunsmore v. State

Citation: 2007 WY 40

Docket Number: 05-205

Appeal from the District Court of Laramie County, the Honorable Dennis L. Sanderson, Judge

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Ryan R. Roden, Senior Assistant Appellate Counsel. Argument by Mr. Roden.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Dee Morgan, Senior Assistant Attorney General. Argument by Ms. Morgan.

Issue: Whether sufficient evidence existed for the jury to find the appellant guilty beyond a reasonable doubt of recklessly inflicting physical injury on his stepdaughter.

Facts/Discussion: Appellant was found guilty of child abuse in violation of Wyo. Stat. Ann. § 6-2-503(b)(i) but not guilty of aggravated assault and battery under Wyo. Stat. Ann. § 6-2-502(a)(i).
Standard of Review: The Court assesses whether all the evidence which was presented is adequate enough to form the basis for a reasonable inference of guilt beyond a reasonable doubt to be drawn by a finder of fact when that evidence is viewed in the light most favorable to the State.
Appellant was working from home watching his two-year-old stepdaughter. He called emergency services because he reported, “she just fell down the stairs.” The child was taken to the hospital because she had symptoms indicative of a possible head injury. The victim had suffered a subdural hematoma which required surgery. Cheyenne police who investigated the incident concluded Appellant’s explanation was inconsistent with the injury and subsequently he was arrested and charged with aggravated assault and battery and as an alternative, child abuse.
The jury returned a special verdict finding that Appellant recklessly inflicted physical injury on MR but acquitted him of intentionally inflicting physical injury on the child. Therefore the Court viewed the evidence that indicated Appellant inflicted a reckless injury on MR in the light most favorable to the State but rejected the State’s evidence that tended only to show Appellant intentionally harmed MR.
The State sought to convince the jury at trial that Appellant intentionally struck MR and that his claim that she fell down a staircase was untrue. The Court’s review of the record appeared to show the State made no cogent attempt at trial to argue that MR’s injury might have been inflicted recklessly rather than intentionally. The Court found fault with the district court’s reasoning. The jury found Appellant had not intentionally injured MR therefore they clearly did not unanimously believe beyond a reasonable doubt that Appellant intentionally struck the child. The review of the trial transcript revealed no evidence from which to draw the inference that Appellant was irritated because of recent surgery or to further infer that Appellant lashed out at MR due to his irritability. The State at oral argument conceded that the jury had rejected its theory at trial and argued Appellant was still guilty of recklessly inflicting injury on MR under the child abuse statute. The Court noted this argument was a marked change from the position taken by the State in its brief and that it was raised for the first time in appellate oral argument. The Court agreed with the State’s position insofar as it conceded that the record did not support any theory of the case at trial except that espoused by Appellant. The issue was whether Appellant recklessly inflicted physical injury upon MR when he left the basement door open and allowed MR to come down the stairs unsupervised. The State’s evidence tending to show that Appellant acted recklessly by leaving the door open and failing to check on MR when she was at the top of the stairs was sorely lacking. The Court referred to cases which demonstrated the level of conduct the Court has previously found to deviate grossly from the standard of care of a reasonable person. See Orona-Rangal, Hodges, and Murray. The Court acknowledged the previous cases did not illuminate the minimum standard of care that must be breached in order to find a defendant guilty of a crime involving reckless behavior. The child abuse statute, references a definition of “physical injury” contained in title 14 of the Wyoming statutes. Although the definition of “abuse” is not specifically referenced by the criminal child abuse statute, the Court has previously recognized its utility in determining whether a child has been criminally abused. According to that definition, an individual responsible for a child’s welfare does not abuse that child if the child suffers a physical injury by accidental means.
Holding: Under the specific circumstances of this case, the Court held that it was neither reasonable nor rational for the jury to return a guilty verdict on the charge of child abuse with the finding that the appellant acted recklessly in causing injury to MR. The State admits the jury determined Appellant merely left the basement door open and heard MR at the top of the stairs, preparing to descend them. Appellant’s failure to check on the child at that point does not rise to the level of criminal recklessness envisioned by the child abuse statute.

Reversed and remanded with instructions to enter a judgment of acquittal.

C.J. Voigt delivered the decision.

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