State v. Hilding

487

Argued and submitted October 28, 2020; convictions on Counts 11 through 14

reversed, convictions on Counts 1, 2, and 7 reversed and remanded, remanded

for resentencing, otherwise affirmed June 29, 2022

STATE OF OREGON,

Plaintiff-Respondent,

v.

BRANDON MICHAEL HILDING,

Defendant-Appellant.

Lincoln County Circuit Court

18CR28793; A169256

514 P3d 79

Defendant appeals from a judgment of conviction for two counts of first-

degree assault (Counts 1 and 2), one count of third-degree assault (Count 3), and

nine counts of first-degree criminal mistreatment (Counts 4 to 7 and Counts 10

to 14). Those charges stem from injuries that the state alleged defendant caused

his infant son. On appeal, defendant challenges the trial court’s denial of his

motions for judgment of acquittal on Count 2 and on Counts 11 to 14, the trial

court’s refusal to give his requested jury instruction for first-degree assault,

which included a criminal negligence mental state for the result element, the

trial court’s limitation on the testimony of his expert, and the trial court’s giving

of a nonunanimous jury instruction and accepting nonunanimous jury verdicts

on Counts 2 and 7. Held: (1) The trial court did not err in denying defendant’s

motion for judgment of acquittal on Count 2, because the state adduced suffi-

cient evidence of a serious physical injury. (2) The trial court did err in denying

defendant’s motion for judgment of acquittal on Counts 11 to 14, because the legal

theory on which the court relied was not legally cognizable under the Supreme

Court’s construction of the applicable statute. (3) The trial court erred in refusing

to give defendant’s requested jury instruction for first-degree assault and the

error was not harmless. (4) The trial court did not err in limiting the testimony

of defendant’s expert. (5) The trial court plainly erred in giving a nonunanimous

jury instruction, which requires reversal of the counts for which the jury verdicts

were nonunanimous.

Convictions on Counts 11 through 14 reversed; convictions on Counts 1, 2,

and 7 reversed and remanded; remanded for resentencing; otherwise affirmed.

Sheryl Bachart, Judge.

George W. Kelly argued the cause and filed the briefs for

appellant.

Christopher A. Perdue, Assistant Attorney General, argued

the cause for respondent. Also on the briefs were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

488 State v. Hilding

Before Ortega, Presiding Judge, and Shorr, Judge, and

Powers, Judge.

ORTEGA, P. J.

Convictions on Counts 11 through 14 reversed; convictions

on Counts 1, 2, and 7 reversed and remanded; remanded for

resentencing; otherwise affirmed.

Cite as 320 Or App 487 (2022) 489

ORTEGA, P. J.

Defendant appeals from a judgment of conviction

for two counts of first-degree assault (Counts 1 and 2), one

count of third-degree assault (Count 3), and nine counts

of first-degree criminal mistreatment (Counts 4 to 7 and

Counts 10 to 14). Those charges stem from injuries that

the state alleged defendant caused his son, C, when C was

between the ages of two and five months old. Defendant

raises four assignments of error on appeal and one supple-

mental assignment of error.

In his first two assignments, defendant challenges

the trial court’s denial of his motions for judgment of acquit-

tal on Count 2 and on Counts 11 to 14. With respect to

Count 2, first-degree assault, the state adduced sufficient

evidence of a serious physical injury and thus the court

did not err in denying defendant’s motion. However, with

respect to Counts 11 to 14, first-degree criminal mistreat-

ment, the trial court erred in denying defendant’s motion,

because the legal theory on which the court relied is not

legally cognizable under the Supreme Court’s construction

of ORS 163.205(1)(a) articulated in State v. Baker-Krofft,

348 Or 655, 662, 239 P3d 226 (2010). We thus reverse those

counts.

In his third assignment of error, defendant chal-

lenges the trial court’s refusal to give his requested jury

instruction for first-degree assault, which included a crimi-

nal negligence mental state for the result element. Based on

State v. Owen, 369 Or 288, 505 P3d 953 (2022), we agree with

defendant that the trial court erred, and we further con-

clude that, under the circumstances of this case, that error

was not harmless. We thus reverse and remand Counts 1

and 2.

In his fourth assignment of error, defendant chal-

lenges the court’s limitation on the testimony of his expert,

Dr. Hyman. Specifically, the court excluded Hyman’s diag-

nosis that C had “temporary bone fragility” and determined

that Hyman was not qualified to render a child-abuse diag-

nosis. We conclude that the trial court did not err.

490 State v. Hilding

Finally, in his supplemental assignment of error,

defendant argues that the trial court plainly erred in giving

a nonunanimous jury instruction and that all of his con-

victions should be reversed as a result. The state concedes

that defendant is entitled to reversal on the nonunanimous

counts, Counts 2 and 7, under Ramos v. Louisiana, 590 US

___, 140 S Ct 1390, 206 L Ed 2d 583 (2020), and State v.

Ulery, 366 Or 500, 504, 464 P3d 1123 (2020). We agree and

accept the state’s concession. As for the remaining convic-

tions by unanimous verdict, we conclude that any error in

giving the nonunanimous jury instruction was harmless.

State v. Flores Ramos, 367 Or 292, 478 P3d 515 (2020).

In sum, we reverse and remand defendant’s con-

victions on Counts 1, 2, and 7, reverse his convictions on

Counts 11 through 14, remand for resentencing, and other-

wise affirm.

For purposes of reviewing the trial court’s denial

of defendant’s motions for judgment of acquittal, “we view

the evidence in the light most favorable to the state.” State

v. Nickles, 299 Or App 561, 562, 451 P3d 624 (2019). We pro-

vide the following background facts with that standard in

mind. To the extent we must consider other facts, or with

a different standard in mind, to address defendant’s other

assignments of error, we do so in the analysis of those other

assignments.

Defendant is C’s father. C was born prematurely at

33 weeks in November 2017. His birth was uncomplicated,

and he showed no signs of injury from the birth process; he

did not show any signs of pain or weakness in his extremi-

ties or any sign of a skull fracture or a subdural hematoma.

Dr. Lam, who treated C while he was in the hospital after

his premature birth, testified that the injuries that C suf-

fered between the ages of two and five months would not

have been caused by his birth. While C was in the hospital

following his birth, both defendant and C’s mother received

education on how to calm a crying baby, the consequences of

shaking a baby, fall risks to a baby, and safe sleep for a baby.

C and his parents lived with friends for about six

weeks after his birth. During that time, defendant saw

bruises on C’s arm, and he showed C’s mother. C’s mother

Cite as 320 Or App 487 (2022) 491

testified that C did not have the bruise when she left C with

defendant. Also during this time, C’s mother, in a follow-up

medical appointment after C experienced jaundice, asked

about bleeding that she saw in C’s mouth, but the nursing

assistant did not find a source of trauma.

C and his parents next lived with C’s maternal

grandparents for about a month. C’s grandmother testified

that C cried a lot, was anxious and hard to soothe, that

defendant would wear headphones at night and not attend

to C when he cried, and that, at some point, she saw bruis-

ing on C’s arm, leg, and on his head over his eyebrow. C

also suffered bruising to his mouth when defendant force-

fully held a pacifier in C’s mouth when he would not stop

crying. C’s grandfather also saw bruises on C’s arm and leg

like “somebody had grabbed him too hard.” C’s grandmother

also thought that defendant was a little too rough with C

and that he swaddled C too tight.

On January 22, 2018, C’s mother took him to the

emergency room because he was sick and having difficulty

breathing. C was diagnosed with bronchiolitis, or an inflam-

mation of the lungs, and required treatment in the hospital.

C’s mother reported that he had been sick for several days,

was coughing, and had not been feeding well. Defendant

expressed a concern that C had cracked ribs from cough-

ing because he could feel some crackling in his torso. The

treating doctor, Dr. Dourgarian, found defendant’s question

strange and troubling, because it would not be normal for a

baby to have crackling over their ribs or to have a rib injury

from coughing. When asked, C’s parents did not report that

C had fallen or had an injury. Dourgarian testified that rib

fractures in infants are very abnormal because their ribs are

mostly cartilage and difficult to break and “it takes quite a

bit of force to break an infant’s ribs.” Dourgarian followed

up with a regular x-ray, mostly because of C’s breathing

difficulty. On the first report, the radiologist could not rule

out rib fractures. A second x-ray was taken, and the sec-

ond radiologist did not see signs of rib fractures. C’s mother

again took C to the ER a week later on January 30, because

of a cough, congestion, and difficulty breathing. The hospital

again took chest x-rays of C.

492 State v. Hilding

Also around the end of January, C’s parents moved

out of C’s grandparents’ house and began living with a

friend, Ray, where they stayed until April. While they lived

there, C’s mother worked, but defendant did not and would

watch C, unless C’s mother found someone else to babysit.

Ray testified that defendant would swaddle C too tight and

would be forceful with holding the bottle to C’s mouth when C

refused the bottle. Ray also saw bruises on C’s forehead and

arm while he was living there. During that time period, C’s

mother also twice noticed bruises on C; once he had bruises

“all over his head,” which defendant attributed to C “head

butting” his head into defendant’s chest, and he attributed

another bruise to C flipping himself out of defendant’s lap.

On February 18, while Ray was home with defen-

dant and C, C stopped breathing. Ray called 9-1-1. On recom-

mendation of the 9-1-1 operator, defendant performed CPR

on C for about 20 seconds. When the ambulance arrived, C

was crying, breathing normally, and his color was good. C

did not have swelling or bruising to his chest from the CPR,

and he was not showing signs of pain. C’s mother arrived

before the ambulance left, and she rode with C to the hos-

pital. At the hospital, the treating doctor could not find a

medical reason for the event. He testified that those types of

episodes are called a “brief resolved unexplained event” or

BRUE. During that hospital stay, C again had x-rays of his

torso.

On February 20, C’s mother called his primary doc-

tor, Dr. Wherry, because C was vomiting, not eating well,

and had some cough and congestion. Wherry reported that

C was irritable and screaming but otherwise “looked very

well.” On March 8, C’s mother called again, concerned that

C continued to be sick. A different doctor treated C, and she

noted that C’s soft spot felt a little more full, and C had a

small bruise on his forehead. Defendant told the doctor that

C had rolled onto the floor from a mattress that was sitting

on the floor.

In April, C’s parents moved in with Hernandez.

During that time, C’s mother worked two jobs and defendant

primarily watched C. Hernandez was also often home with

her own child at the same time and observed that defendant

Cite as 320 Or App 487 (2022) 493

was rough with C and that C would cry a lot and defen-

dant would ignore C’s cries. She testified that once defen-

dant came home drunk, picked up C, who was crying, and

took him into the bedroom for a nap, while talking aggres-

sively to C. When C got up from the nap, he had a bruise on

his face from the bottom of his eye to his cheek. C’s mother

also related the same incident and that defendant could not

explain the bruise. Hernandez also saw C with a lip injury

and with a bruise on his ear about the size of a quarter.

On April 3, C’s mother called Wherry, concerned

that C was vomiting and not able to keep any food down.

On advice from Wherry’s office, she took C to the emergency

room. The hospital believed the cause was a viral infection

and gave C a medication to stop his vomiting.

On April 23, C’s mother again called Wherry, con-

cerned that C was acting abnormally, that his soft spot was

strange, and that he had some bruising along his head. At

an appointment on April 25, Wherry noted that C’s soft spot

was “bulging” and his head circumference was significantly

larger. Wherry ordered blood labs which showed that C did

not have a bleeding disorder, but he could not get insurance

approval for a head CT right away and sent C home with his

mother. The CT was approved the next day, April 26.

On that follow-up visit, Wherry noted that C’s head

circumference was about the same as the previous day and

also noticed a bruise on his foot. The CT showed that C had

subacute subdural hematomas on the right and left side,

with the one on the right slightly larger and more hyper-

attenuated than the one on the left, which meant that the

hematomas were different ages and that the right side prob-

ably had rebleeding from a repeat trauma. At that point,

Wherry believed that C had had a nonaccidental trauma,

and C was transferred to Randall’s Children’s Hospital.

At Randall’s, Dr. Zoeller, a pediatric neurosurgeon,

performed surgery to remove the blood and relieve pressure

on C’s brain. Zoeller testified that C’s scans showed a large

collection of blood near the brain that required surgery, some

brain atrophy consistent with injury, and a skull fracture.

At the time, however, C did not have bruising, indicating

494 State v. Hilding

that the fracture was more than a few days old. Zoeller also

testified that the enlarged size of C’s head indicated that

blood had been accumulating for some time, but also that

the presence of newer bleeding indicated that C had more

than one injury. Zoeller testified that the type of trauma he

observed in C could cause a baby to stop breathing, be fussy

and difficult to calm, and have seizures. Zoeller opined that

C’s vomiting incidents were related to the head trauma,

because the increasing pressure from the blood on the brain

can cause vomiting. He also opined that the bleeding could

only have been caused by trauma and was not caused by

birth-related trauma because of the location of the fracture,

the amount of blood, and that C was five months old. Zoeller

testified that C did not have brittle bone disease because the

imaging showed “nice thick bone.”

A pediatric radiologist at Randall’s reviewed the

chest x-rays taken during C’s three hospital visits on

January 22, January 30, and February 18, and found rib

fractures present on all three dates. A skeletal survey of C

on April 28 showed a right skull fracture, multiple rib frac-

tures on both sides, some of which were healed, a healing

fracture to the forearm, and a bone injury in his leg. That

April scan showed that C had rib fractures that were not

present in January and February.

Dr. Adewusi, a pediatrician with CARES Northwest,

checked for bone or bleeding issues that could explain C’s

injuries, but did not find any. Adewusi testified that C’s

head trauma was consistent with violent, repetitive move-

ment, like being thrown, and that symptoms could include

being fussy, vomiting, stopping breathing, coma, and death.

The parents’ explanations for C’s injuries did not match the

reported bruising that C had. Adewusi also testified that it

would require significant compression force or blunt force

trauma to cause the rib fractures that C had and that frac-

tures from CPR on infants is rare. Adewusi also testified

that a rib fracture could also cause internal injury, like a

contusion to the lungs, which would be concerning for “sig-

nificant morbidity.” Adewusi also confirmed that studies

have found that the odds of mortality in children increases

with each additional rib fracture.

Cite as 320 Or App 487 (2022) 495

In speaking with detectives, defendant never blamed

C’s mother for C’s injuries. Rather, he took responsibility for

them, but offered accidental causes, including that C rolled

off the mattress, would head-butt defendant’s chin, and

fell off the couch, that defendant had dropped C once after

he had been drinking alcohol, and that C “back-flipped”

out of defendant’s arms about a month and a half earlier.

Defendant also admitted to detectives that he sometimes

gets “black-out drunk,” that “things” could have happened

to C when defendant was drinking, that he probably did

hurt C when he was drunk, and that, until recently, he was

drinking almost every day. Defendant also admitted that,

a couple of days before C’s surgery, he got mad at C and

threw him into his crib and “heard a thunk,” which could

have been C’s head hitting the wall. Defendant also said

that C’s ribs could have been injured because he might have

squeezed C when he was drunk.

In messages between defendant and C’s mother on

four different dates in March, defendant made statements,

including that he “can’t do this” and was about to “walk off,”

that he was scared he will “snap” and hurt C and that he

did not want to be alone with C, that C would not stop cry-

ing and defendant was about to “blow up” and “walk out,”

and that C had bruises on his head because he head-butted

defendant. On April 18, defendant messaged C’s mother that

he is “afraid to touch him” and that he is not a good father.

C was placed in foster care immediately following

his discharge from the hospital after his brain surgery. He

did not have any further injuries or suspicious bruising. His

emergency-care foster mother testified that C never head-

butted or caused injury to himself during the five days he

was with her. C’s foster mother, who had continuous care of

C after those five days and through trial, testified that, on

his arrival to her home, C had developmental delays, such as

not being able to sit up or support his head, not rolling over,

not using his left arm, and not babbling. Before C started

crawling, she never observed C to bruise himself or to butt

his head. Since his foster placement, C has improved, but

still has some developmental delays in communication and

cognitive processing.

496 State v. Hilding

At the close of the state’s case, and as relevant to

his appeal, defendant moved for judgments of acquittal on

Count 2, first-degree assault, and Counts 11 through 14,

first-degree criminal mistreatment. For Count 2, the indict-

ment alleged that, on or about the period between November 20,

2017 and January 22, 2018, defendant knowingly caused

serious physical injury to C’s ribs and torso. Defendant

argued that the state had failed to prove that C’s rib injuries

met the standard of serious physical injury, because there

was no testimony that the fractures created a substantial

risk of death.1 The state’s theory was that C’s physical injury

created a substantial risk of death because the injury to C’s

ribs or torso contributed to the February 18 BRUE when C

stopped breathing. The trial court denied the motion, ruling

that, based on testimony that the type of trauma to C’s ribs

required a level of force that could cause respiratory prob-

lems, the jury could infer that the BRUE on February 18

was related to that injury.

For Counts 11 through 14, first-degree criminal

mistreatment, the indictment alleged that, with respect to

four different date ranges, defendant knowingly withheld

necessary and adequate physical care from C. The state’s

theory was that, between January and April 2018, defen-

dant was C’s primary caretaker and, during that time, he

paid inadequate attention to C—left C in his crib for long

periods, failed to feed him, and ignored his crying while

playing video games—and that, despite knowing that C

was injured in his care and that he, at least once, dropped

C while he was drunk, he continued to care for C and to

drink while caring for C. The state clarified that it was not

arguing that defendant failed to provide medical care for

C. Defendant argued that the state’s theory did not allege

anything that rose to the level of withholding care from C

for purposes of first-degree criminal mistreatment.

The trial court denied defendant’s motion, relying

on State v. Burciaga, 263 Or App 440, 328 P3d 782, adh’d

1

A “serious physical injury” means “physical injury which creates a sub-

stantial risk of death or which causes serious and protracted disfigurement, pro-

tracted impairment of health or protracted loss or impairment of the function

of any bodily organ.” ORS 161.015(8). “Physical injury” means “impairment of

physical condition or substantial pain.” ORS 161.015(7).

Cite as 320 Or App 487 (2022) 497

to as modified on recons, 264 Or App 506, 333 P3d 1098,

rev den, 356 Or 575 (2014). The court reasoned that there

was sufficient evidence that defendant withheld care by

continuing as C’s primary caretaker although he knew that

C was experiencing injuries and defendant expressed fear

that he was hurting or would hurt C because of his anger,

frustration, and blackouts from drinking. In so ruling, the

court emphasized that the unique feature of the case was

that defendant was aware that he posed a risk to C, but he

continued to care for C after each time that C was injured.

The court reasoned that, due to C’s age, necessary physical

care of C included ensuring that he did not sustain bruises

or fractures. The court summarized its reasoning this way:

“So in relying on the Burciaga case, here it’s the * * *

knowingly withholding necessary and adequate physical

care. If the Court can find that a defendant can be guilty

of criminal mistreatment for knowingly withholding neces-

sary and physical care from leaving a child in the care of

somebody who is known to be physically abusive towards

minor children who are nonverbal and not able to protect

themselves, a defendant could also be found guilty of con-

tinuing to care for an infant where he is repeatedly * * *

frustrated, and when he becomes frustrated he becomes

physically abusive. * * * The evidence that’s been presented

here is his own consciousness of his frustration and his

anger and fear of himself.”

On appeal, defendant challenges the court’s denial

of his motions on Count 2 and on Counts 11 through 14.

On review of a denial of a motion for judgment of acquittal,

we examine the evidence “in the light most favorable to the

state to determine whether a rational trier of fact, accept-

ing reasonable inferences and reasonable credibility choices,

could have found the essential element of the crime beyond a

reasonable doubt.” State v. Cunningham, 320 Or 47, 63, 880

P2d 431 (1994), cert den, 514 US 1005 (1995).

With respect to Count 2, in his first assignment of

error, defendant argues that the court erred because there

was no evidence from which the jury could infer that C’s

February 18 BRUE was caused by the fractures to his ribs

that were visible in the x-rays taken on January 22, which

was the end of the date range alleged in that count. Having

498 State v. Hilding

reviewed the evidence in the light most favorable to the

state, we conclude that the state adduced sufficient evidence

from which a rational jury could find beyond a reasonable

doubt that C’s rib injuries were caused with sufficient force

to also cause respiratory problems that contributed to C’s

February 18 BRUE. Thus, the trial court did not err in deny-

ing defendant’s motion for judgment of acquittal as to that

count.

With respect to Counts 11 through 14, in his second

assignment of error, defendant argues that the trial court

erred when it extended Burciaga to his case, because that

reading would allow the state to charge an additional crim-

inal mistreatment count, based on withholding of physical

care,2 with every instance that a person abuses a child more

than once. Defendant argues that continuing to care for a

child even though the person knows that they could pose a

risk to that child when drinking or frustrated is not the con-

duct that the legislature intended to cover in the withhold-

ing of care section of the first-degree criminal mistreatment

statute. Rather, defendant argues, the statute is directed

at precisely what it states, withholding of care, which is a

failure to attend to the child’s bodily needs, and an abuser

does not withhold care simply by allowing themselves to be

around a child.

The state responds that, given the evidence in this

case, defendant could be convicted of criminal mistreat-

ment for his pattern of neglect and carelessness with C. The

state argues that, “[p]ut simply, defendant failed to provide

the necessary attention that C required when [defendant]

repeatedly drank to excess yet assumed responsibility for

care for C.” Here, the state asserts, it was not the abuse

itself that amounted to withholding of care, it was “defen-

dant’s more general pattern of violent drunkenness and

2

First-degree criminal mistreatment also applies if

“[t]he person, in violation of a legal duty to provide care for a dependent per-

son or elderly person, or having assumed the permanent or temporary care,

custody or responsibility for the supervision of a dependent person or elderly

person, intentionally or knowingly * * * [c]auses physical injury or injuries to

the dependent person or elderly person[.]”

ORS 163.205(1)(b)(A). Defendant was convicted of first-degree criminal mistreat-

ment in Counts 4 to 7 and 10 based on that theory.

Cite as 320 Or App 487 (2022) 499

gross inattentiveness [that] established a failure to attend

to C’s physical needs.”

To begin our analysis, we emphasize the basis on

which the trial court denied defendant’s motion. Its ruling

was based on an explicit extension of the theory present in

Burciaga—that defendant left C in defendant’s own care

despite knowing that he was physically abusive toward C

when frustrated or drunk. That is not, as the state asserts,

a theory based on defendant’s “more general pattern” of vio-

lent drunkenness and inattentiveness; it is a theory that

defendant withheld physical care from C through the act

of assuming responsibility for C’s care despite knowing the

risk of physical abuse he posed to C. Thus, the question

before us is whether that theory is legally cognizable under

ORS 163.205(1)(a), the section of the first-degree criminal

mistreatment statute at issue. We conclude that it is not.

We begin with a brief overview of the law on which

the trial court relied. The relevant section of the first-degree

criminal mistreatment statute provides:

“(1) A person commits the crime of criminal mistreat-

ment in the first degree if:

“(a) The person, in violation of a legal duty to provide

care for another person, or having assumed the perma-

nent or temporary care, custody or responsibility for the

supervision of another person, intentionally or knowingly

withholds necessary and adequate food, physical care or

medical attention from that other person[.]”

ORS 163.205(1)(a).

In Baker-Krofft, the Supreme Court interpreted the

phrase “withholds necessary and adequate * * * physical

care” to mean “the defendant keeps back from the dependent

person those physical services and attention that are neces-

sary to provide for the dependent person’s bodily needs.” 348

Or at 662. The court rejected the state’s proffered interpre-

tation, which would have included in the definition “creating

or failing to correct any and all dangers to the child’s safety.”

Id. The court noted that the state’s interpretation did not

square with the text, because it converted the verb “with-

hold” to “create” or “fail to correct,” and thereby converted

500 State v. Hilding

the prohibition on withholding specific services “into a pro-

hibition against creating any and all risks to a dependent

person’s health,” and converted “a statute that prohibits a

present deprivation of services or attention into one that

prohibits creating a risk of future harm.” Id. at 662-63.

In Burciaga, we extended the Supreme Court’s rea-

soning to circumstances where the defendant had left her

two children, J and N, in the care of Ros, who had previ-

ously physically abused J when the child was two years old,

resulting in a fourth-degree assault conviction. 263 Or App

at 442. After that conviction, the defendant left the children

alone with Ros two more times—when J was three years old

and N two years old—during which time he again assaulted

J. The defendant then left the children in Ros’s care a third

time, during which time Ros assaulted N, resulting in N’s

death. Id. at 443. The state’s theory for two of the counts of

first-degree criminal mistreatment against the defendant

was that, by leaving her children in the care of Ros, who

she knew had assaulted one of the children, the defendant

withheld from her children “the physical care required to

meet their basic safety and survival needs and left them in a

condition almost certain to cause them serious physical pain

and injury.” Id. at 444.

We reasoned that the court in Baker-Krofft had

suggested “that necessary and adequate physical care

may include some types of preventative or protective care.”

Burciaga, 263 Or App at 448 (internal citations omitted). We

concluded that the rule that the court announced “d[id] not

preclude the possibility that necessary and adequate phys-

ical care of a dependent person includes protecting the per-

son from certain types of future harms.” Id. at 449. In terms

of the case before us, we concluded that the state presented

sufficient evidence that the defendant had withheld neces-

sary and adequate physical care from her two children. In

particular, the defendant withheld her attention from them,

which,

“under the circumstances, was necessary to provide for

their basic bodily needs, indeed for their survival. * * *

Defendant put her children in a situation where there was

a substantial risk that they would suffer serious harm and

Cite as 320 Or App 487 (2022) 501

then she turned her back on them. Her conduct constituted

a present deprivation of essential physical care.”

Id.

This case presents circumstances that are not com-

parable to those present in Burciaga. Here, defendant did not

withhold his attention from C. Indeed, it was his attention

that presented the safety risk to C—the attention he gave to

C when he was drunk or frustrated was abusive attention.

A person cannot withhold necessary and adequate physical

care from a dependent person through the act of continuing

to care for the dependent person, as reasoned by the trial

court. The gravamen of the charge is missing under that

line of reasoning—the keeping back of a necessary service

from the dependent person. See Baker-Krofft, 348 Or at 662

(concluding that “the statutes rest on the premise that the

actor keeps back something (food, physical care, or medi-

cal attention) from a person who would not otherwise be

able to obtain it for him or herself”).3 Extending the stat-

ute to encompass the conduct here would prohibit what the

Supreme Court in Baker-Krofft said ORS 163.205(1)(a) does

not prohibit. Accordingly, the trial court erred in denying

defendant’s motion for judgment of acquittal on Counts 11

through 14, and we reverse the convictions on those counts.

We turn next to defendant’s third assignment of

error, in which he challenges the trial court’s jury instruc-

tions on Counts 1 and 2, first-degree assault. Defendant had

requested a jury instruction that included a culpable mental

state of criminal negligence for the result element of serious

physical injury on those counts. The court declined to give

that instruction.

Based on recent cases, we agree with defendant that

the trial court erred in not giving the requested instruc-

tion. In Owen, the Supreme Court held that the result

3

See also Baker-Krofft, 348 Or at 665-66 (reciting the legislative history,

which includes commentary that the statute sought to reach conduct not covered

by the criminal code, such as withholding food or other services; that commen-

tary stated that, “if it’s a physical abuse thing where somebody actually hits

someone, the criminal code takes care of that [already]” (quoting Tape Recording,

Senate Floor, SB 780, June 29, 1973, Tape 32, Side 1 (statement of Sen Wallace P.

Carson) (brackets in Baker-Krofft))).

502 State v. Hilding

element—physical injury—in the crime of second-degree

assault carries, at a minimum, a culpable mental state of

criminal negligence. 369 Or at 321-22. The court further

held that a court errs when it fails to instruct the jury that

a defendant must act with a culpable mental state as to

the element of causing physical injury. Id. at 322; see also

State v. McKinney/Shiffer, 369 Or 325, 505 P3d 946 (2022).

The same reasoning applies to the result element—serious

physical injury—of first-degree assault as charged in this

case. See ORS 163.185(1)(b) (“A person commits the crime

of assault in the first degree if the person * * * [i]ntention-

ally or knowingly causes serious physical injury to a child

under six years of age.”). Here, defendant requested a jury

instruction that applied a culpable mental state of crimi-

nal negligence to the injury element of first-degree assault.

Based on Owen, defendant was entitled to have the court

deliver the requested instruction and the court erred in not

doing that. See State v. McNally, 361 Or 314, 320, 392 P3d

721 (2017) (“A criminal defendant is entitled to have the jury

instructed in accordance with his or her theory of the case if

the instruction correctly states the law and there is evidence

to support giving it.”); State v. Jury, 185 Or App 132, 137,

57 P3d 970 (2002), rev den, 335 Or 504 (2003) (“The ‘bench-

mark’ for error is the law existing as of the time the appeal

is decided.”).

Having concluded that the trial court erred, we

must determine whether that error was nonetheless harm-

less. State v. Davis, 336 Or 19, 33, 77 P3d 1111 (2003) (trial

court error is harmless if there was “little likelihood that

the error affected the jury’s verdict”). “To make that deter-

mination, we consider the instructions ‘as a whole and in

the context of the evidence and record at trial, including

the parties’ theories of the case with respect to the various

charges and defenses at issue.’ ” Owen, 369 Or at 323 (quot-

ing State v. Payne, 366 Or 588, 609, 468 P3d 445 (2020)).

“The party requesting an instruction is prejudiced if the

trial court’s failure to give the requested instruction proba-

bly created an erroneous impression of the law in the minds

of the members of the jury, and if that erroneous impression

may have affected the outcome of the case.” Hernandez v.

Barbo Machinery Co., 327 Or 99, 106-07, 957 P2d 147 (1998).

Cite as 320 Or App 487 (2022) 503

Here, the court instructed the jury that it had to

find that defendant “acted with an awareness of the assaul-

tive nature of his conduct. It does not require he was neces-

sarily aware of the seriousness of the injury that resulted

from the conduct.” The court did not instruct the jury on the

meaning of “assaultive.” The court further instructed the

jury:

“The term ‘physical injury’ means an injury that

impairs a person’s physical condition or causes substantial

pain. The term ‘serious physical injury’ means a physical

injury that either: (1) creates a substantial risk of death, or

(2) causes serious and protracted disfigurement, or (3) causes

protracted impairment of health, or (4) causes protracted

loss or impairment of the function of any bodily organ.”

In argument to the jury, the state presented its theory of

the case for Counts 1 and 2 in line with those instructions,

arguing that defendant caused C’s head and torso injuries by

some type of conduct that occurred while he was alone with

C when C was in his care and that those injuries created a

substantial risk of death to C. The state emphasized that

“[defendant] does not have to know that what he’s doing is

going to cause serious physical injury or put the child at risk

of death. But he has to know that his conduct is assaultive.”

In the circumstances of this case, we conclude that,

had the jury been instructed on the culpable mental state

for the serious physical injury element, it could have made a

difference in the outcome of the case. Criminal negligence

“means that a person fails to be aware of a substantial

and unjustifiable risk that the result will occur or that the

circumstance exists. The risk must be of such nature and

degree that the failure to be aware of it constitutes a gross

deviation from the standard of care that a reasonable per-

son would observe in the situation.”

ORS 161.085(10). Although the jury found that defendant

was aware of the assaultive nature of his conduct, based on

the jury instructions, it is not clear that the jury necessarily

would have also found that defendant failed to be aware of

a substantial risk that his conduct would cause C an injury

that created a substantial risk of death and that the risk

was of such a nature and degree that defendant’s failure

504 State v. Hilding

to be aware of it was a gross deviation from the standard

of care a reasonable person would observe in the situation.

This is not a situation where the nature of the assaultive

conduct—which in this case was unknown—or other given

instructions necessarily encompassed a culpability standard

with respect to the serious physical injury element of first-

degree assault. Cf. Owen, 369 Or at 324 (error was harm-

less where, based on the jury instructions, the jury found

that the defendant knew that his conduct was assaultive

and knew that the weapons he used were “readily capable of

causing serious physical injury,” because, even if instructed

on criminal negligence for the element of “physical injury,”

“the jury would not have found that defendant was unaware

that his actions would cause D physical injuries”); State v.

Chemxananou, 319 Or App 636, 640, 510 P3d 954 (2022)

(“The jury found that defendant, with an awareness that

his conduct was assaultive in nature, strangled and kicked

K, hit the back of N’s head with a plate, and punched N in

the face. It is implausible that the jury, having found that

defendant knowingly took those actions, would then find

that he was not at least negligent with respect to the fact

that the children could be injured as a result.”). As a result,

we reverse and remand Counts 1 and 2.

Finally, we address defendant’s fourth assignment

of error, in which he argues that the trial court erred when

it excluded Dr. Hyman, defendant’s expert, from testify-

ing that he had diagnosed C with temporary bone fragility

and further excluded Hyman from giving an opinion about

whether C had been abused. As explained below, we con-

clude that the trial court did not err.

Before trial, the state sought to exclude or limit

Hyman’s testimony and requested a OEC 104 hearing to

determine if his testimony met the threshold standard of

admissibility for scientific evidence under the factors in State

v. Brown, 297 Or 404, 687 P2d 751 (1984), and State v. O’Key,

321 Or 285, 899 P2d 663 (1995).4 At the OEC 104 hearing,

4

Brown set out seven nonexclusive factors to use as guidelines to determine

if scientific evidence has met the threshold of admissibility: “(1) The technique’s

general acceptance in the field”; “(2) The expert’s qualifications and stature”;

“(3) The use which has been made of the technique”; “(4) The potential rate of

error”; “(5) The existence of specialized literature”; “(6) The novelty of the invention”;

Cite as 320 Or App 487 (2022) 505

defendant made an extensive offer of proof of Hyman’s testi-

mony. Because it would not be beneficial to the bench or bar,

we do not summarize the record at length and only refer to

the most pertinent parts in our analysis.

Following the offer of proof, the trial court concluded

that it would limit Hyman’s testimony in certain respects.

First, the court ruled that Hyman could testify about his

expertise in the fields of pediatrics and bone science and

about factors that affect bone strength, and that he could

talk about the term “temporary bone fragility.” The court

also ruled that Hyman could express his view on what he

believed the radiology of C’s bones showed. However, the

court ruled that Hyman could not offer a diagnosis of tem-

porary bone fragility, because it did not meet the Brown

and O’Key threshold for scientific testimony “regarding an

actual diagnosis that he came to in this particular case.”5

The court also ruled that Hyman was not qualified

as an expert in the field of child-abuse pediatrics such that

he could render an opinion about whether C was abused. The

court explained that a child-abuse diagnosis was allowed as

scientific testimony, as established by the state’s expert, but

Hyman testified that he expressly rejects the medical field

of child-abuse pediatrics as a science and that he has not

seen clinical patients since 1999. The court stated that “it’s

through his own testimony and his rejection of that area

of science that leads to his disqualification as an expert in

the field of child abuse [pediatrics].” The court did permit

Hyman to testify about whether C’s injuries were consistent

with the explanations given by defendant or what Hyman

believed was the amount of force required to cause those

and “(7) The extent to which the technique relies on the subjective interpretation

of the expert.” Brown, 297 Or at 417.

The Supreme Court in O’Key also discussed four additional factors that may

be useful, and which overlap somewhat with the Brown factors: (1) “whether the

theory or technique in question can be (and has been tested)”; (2) “whether the

theory or technique has been subject to peer review and publication”; (3) “the

known or potential rate of error and the existence of operational standards con-

trolling the technique’s operation”; and (4) “the degree of acceptance in the rel-

evant scientific community.” O’Key, 321 Or at 303-04 (internal quotation marks

omitted).

5

In making that ruling, the trial court agreed with the state’s argument of

how to apply the Brown and O’Key factors.

506 State v. Hilding

injuries. The court also permitted Hyman to testify about

his opinion of the field of child-abuse pediatrics, with a lim-

iting instruction about hearsay if he were to rely on specific

studies for that opinion.

On appeal, defendant argues that the trial court

erred because the Brown and O’Key factors favored admitting

Hyman’s diagnosis of temporary bone fragility. Defendant

also argues that the court erred in not allowing Hyman to

express his opinion on the diagnosis of child abuse, because

the court did not base its opinion about Hyman’s lack of

expertise on Hyman’s credentials, but rather on his rejec-

tion of the child-abuse pediatric field as a science. Defendant

asserts that Hyman’s credentials were sufficient, and that

he is not alone in his criticism of the child-abuse scientific

community.

We review the trial court’s rulings on the admissi-

bility of scientific evidence for legal error. State v. Reed, 268

Or App 734, 738, 343 P3d 680, rev den, 357 Or 551 (2015).

“Under Brown and O’Key, scientific evidence is admissible if

it is relevant under OEC 401, helpful to the trier of fact under

OEC 702, and not subject to exclusion under OEC 403.” State

v. Perry, 347 Or 110, 121, 218 P3d 95 (2009). Here, we need

only address the admissibility of the testimony under OEC

702.6 There are three general requirements a proponent of

evidence must meet for the admission of expert testimony:

(1) the witness must qualify as an expert on the particular

topic, (2) the expert’s testimony must be helpful to the jury,

and (3) the testimony must have an adequate foundation.

State v. Trujillo, 271 Or App 785, 791, 353 P3d 609, rev den,

358 Or 146 (2015). For scientific testimony, “the proponent

of the evidence must demonstrate that an expert’s scientific

testimony is based on ‘scientifically valid principles’ and ‘is

pertinent to the issue to which it is directed.’ ” Id. (quoting

O’Key, 321 Or at 303). The Brown and O’Key factors help a

trial court determine whether the proffered scientific tes-

timony meets that threshold. Id. Here, the court excluded

6

OEC 702 provides:

“If scientific, technical or other specialized knowledge will assist the trier

of fact to understand the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training or education

may testify thereto in the form of an opinion or otherwise.”

Cite as 320 Or App 487 (2022) 507

Hyman’s diagnosis of temporary bone fragility based on the

lack of adequate foundation and excluded Hyman’s diagno-

sis relative to child abuse based on a lack of qualification.

We address those bases in turn.

With regard to Hyman’s diagnosis of temporary

bone fragility, Hyman testified in the offer of proof that bone

fragility is defined as fractures due to low force trauma,

regardless of how the fractures look, which he determines

occurs when there is a lack of evidence of high force trauma,

such as a lack of internal injuries with rib fractures and

fractures that were not detected by the parent or medical

examiners. Hyman testified that he diagnosed C with bone

fragility based on a lack of evidence of high force trauma for

C’s injuries. He also testified that C had a history that sug-

gested that he had weakened bones and that C’s radiology

supported Hyman’s diagnosis of temporary bone fragility.

Hyman, however, could not describe a set of diagnostic cri-

teria for the condition and could not point to a single peer-

reviewed article or text from the medical community that

supports the diagnosis in an infant; he only stated simply,

and without references, that it is an accepted diagnosis in

the field of bone science. Hyman admitted that the diagnosis

is not accepted in the child-abuse pediatric community and

that he formerly diagnosed the same condition as “tempo-

rary brittle bone disease” which he admitted had been dis-

credited “by the child abuse people.” Hyman admitted that

pediatric radiologists had submitted a letter and a peer-

reviewed article refuting his diagnostic theories, but stated

that those critiques were “all flawed.”

We conclude that the trial court did not err in

excluding Hyman’s diagnosis of temporary bone fragility.

Hyman could not describe a process or set of criteria he used

to arrive at the diagnosis, relying primarily on not having

definitive evidence that high force was used to break C’s

bones. Hyman also could not explain “the standard prac-

tices, research, literature, guidelines or protocols that justi-

fied [his] reasoning.” State v. Sanchez-Alfonso, 352 Or 790,

804, 293 P3d 1011 (2012) (concluding doctor’s diagnosis of

child abuse did not meet threshold for scientific testimony

where she “did not identify the potential causes of C’s injuries

nor explain how or why she had ruled one of these causes in,

508 State v. Hilding

and others out” and she did not explain the scientific bases

to justify her reasoning). As explained in Sanchez-Alfonso,

“[t]o conclude that scientific evidence is sufficiently reli-

able to be admissible under OEC 702, it is not enough that

there are experts on a subject, that the person who testifies

is credible, or that evidence takes the form of a medical

record. Neither is it enough that ‘a lot’ of literature exists

on the subject or that the expert gathers the information

to which that literature refers and conducts a differential

diagnosis. Instead, the expert must explain more precisely

his or her own expertise, how he or she gathers and uses

particular information, how that information informs his

or her conclusions, and the scientific basis for the steps that

he or she takes in the process.”

Id. Although Hyman could describe his experience in “bone

science” and the information he used to make the bone fra-

gility diagnosis, his testimony lacked an explanation of the

scientific basis for the diagnosis itself or the process used to

arrive at it, and it failed to demonstrate that the diagnosis

and process were generally accepted or supported by liter-

ature in the field. Defendant, as the proponent of the scien-

tific testimony, did not meet his burden to demonstrate that

Hyman’s diagnosis was based on scientifically valid princi-

ples. See, e.g., Trujillo, 271 Or App at 791. Accordingly, the

trial court did not err in excluding Hyman from testifying

that he diagnosed C with temporary bone fragility.

Finally, we address defendant’s claimed error with

regard to Hyman’s opinion on the diagnosis of child abuse

for C.7 At the OEC 104 hearing, Hyman testified that he had

never been board-certified as a child-abuse pediatrician,

had never taken a fellowship in child-abuse pediatrics, and

had not seen a clinical pediatric patient since 1999, but he

testified that he read all the child-abuse journals and that

was all he needed to do. He also testified that child-abuse

pediatricians do not use any techniques other than learn-

ing the teaching points of the “child-abuse community,” that

the field is not based on science, that he rejects the diag-

nostic criteria used by the child-abuse pediatric field, and

that child-abuse interpretation is “very subjective.” The

7

We reject the state’s assertion that defendant failed to preserve his claim of

error in this respect.

Cite as 320 Or App 487 (2022) 509

trial court ruled that Hyman could not be qualified as an

expert for purposes of making a scientific child-abuse diag-

nosis of C, because he rejected the entire child-abuse pedi-

atric field as not scientific. And, as the court explained, the

child-abuse diagnoses offered in the case by the state were

already admitted as scientific evidence.

“We review for errors of law the question ‘whether

a trial court properly applied OEC 702 to decide whether an

expert is qualified to give testimony relative to a particular

topic.’ ” State v. Woodbury, 289 Or App 109, 114, 408 P3d 267

(2017) (quoting State v. Rogers, 330 Or 282, 315, 4 P3d 1261

(2000) (emphasis in Rogers)). To be qualified as an expert on

a particular topic, the person “must have the ‘knowledge,

skill, experience, training or education’ to provide testimony

‘in the form of an opinion or otherwise’ regarding the ‘par-

ticular topic’ on which the person claims expertise.” State v.

Althof, 273 Or App 342, 345, 359 P3d 399 (2015), rev den, 358

Or 550 (2016) (quoting OEC 702). “The capacity to testify in

every case is a relative one, i.e., relative to the topic about

which the person is asked to make his statement.” Id. (inter-

nal quotation marks and brackets omitted).

We conclude that the trial court did not err in lim-

iting Hyman from testifying about a child-abuse diagnosis

for C. As the trial court recognized, the child-abuse diagno-

sis, as scientific testimony, was admitted at trial through

the state’s witness, who testified about her qualifications

and the scientific process for making a child-abuse diagno-

sis. Hyman testified that he read child-abuse journals and

rejected the criteria used to make child-abuse diagnoses

and, indeed, rejected the entire child-abuse pediatric field

as not based in science and being “very subjective.” Based

on that testimony, the trial court correctly determined that

Hyman was not qualified to give a child-abuse diagnosis

of C—he could not reliably apply the scientific principles

as an expert to C’s case because he entirely rejected them.

See Marcum v. Adventist Health System/West, 345 Or 237,

248, 193 P3d 1 (2008) (admissibility of a particular diag-

nosis using a differential diagnosis methodology “will turn

on whether the particular use of differential diagnosis to

determine causation meets the more general test of scientific

validity”). Hyman did not offer in his testimony a different

510 State v. Hilding

set of principles on which he was an expert and could apply to

make a child-abuse diagnosis or how he applied those prin-

ciples to C. See Sanchez-Alfonso, 352 Or at 804 (discussing

what the expert must explain to establish a foundation for

scientific testimony). Thus, the court correctly determined

that Hyman was not qualified to give a child-abuse diagno-

sis. In addition, we reject defendant’s suggestion on appeal

that the trial court prevented Hyman from testifying about

“the other side” of the scientific thinking on child abuse. In

its ruling, the court expressly permitted Hyman to testify

about his criticisms of the child-abuse pediatric field, and

Hyman did voice some of those criticisms during trial.

Convictions on Counts 11 through 14 reversed;

convictions on Counts 1, 2, and 7 reversed and remanded;

remanded for resentencing; otherwise affirmed.