State v. Hocter

262 P.3d 1089 (2011)

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Nature of the Case

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Facts

D was at her apartment that she shared with her boyfriend. Her boyfriend was out at the time, and she was caring for both her one-month-old child and her boyfriend's six-month-old daughter S.B. S.B. was crying and Hocter could not comfort her. D picked S.B. up and dug her fingers into S.B.'s abdomen. As S.B. was wriggling, D tripped and lost her temper. She swung S.B. head-first into the top bar of her crib at least twice. The first strike caused S.B.'s head to recoil and potentially double-strike. The second strike resulted in a sudden stop of S.B.'s head into the rail. D tossed S.B. into the crib, turned the music up, and left the room. D realized that S.B. needed help. She claimed that she could not find her phone to call 911. D did not seek help from her neighbors because she did not want to leave her one-month-old infant. S.B. is permanently blind with long-term handicaps in vision, motor functioning, and cognitive functioning. P dropped attempted homicide charges and D agreed to plead guilty to aggravated assault and criminal endangerment. The District Court accepted D's guilty pleas, ordered a presentence investigation report, and scheduled a sentencing hearing. On February 25, 2010, D appeared at sentencing. The District Court informed her that it refused to accept the plea agreement. The trial was set. After a jury was sworn in, D moved to dismiss the criminal endangerment charge in that the charging documents failed to specify whether criminal endangerment was predicated on D's affirmative conduct, or her failure to provide medical assistance to S.B. The court denied the motion. D renewed the motion on the third day of trial contending that P could not charge criminal endangerment under an omission or failure to act theory without articulating what legal duty she had failed to perform. The motion was denied. D objected to jury instructions on criminal endangerment. The District Court instructed the jury as follows: A person commits the offense of criminal endangerment if the person knowingly engages in conduct that creates a substantial risk of death or serious bodily injury to another. In this case, the State alleges that D committed the offense of criminal endangerment by failing or omitting to act to aid [S.B.]. Accordingly, to convict Defendant of the offense of criminal endangerment, the State must prove that Defendant: 1. Knowingly failed or omitted to act to aid [S.B.][;] 2. with the knowledge that her failure or omission to act created a substantial risk of death or serious bodily injury to [S.B.][.].... D was found guilty of both aggravated assault and criminal endangerment. D appealed.