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Nielsen v. State

Supreme Court of Wyoming

December 3, 2018

JOSEPH SCOTT NIELSEN, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal from the District Court of Campbell County The Honorable Michael N. Deegan, Judge

          Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Desiree Wilson, Senior Assistant Appellate Counsel. Argument by Ms. Wilson.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Rebecca J. Zisch, Assistant Attorney General. Argument by Ms. Zisch.

          Before DAVIS, C.J., and BURKE [*] , FOX, KAUTZ, and BOOMGAARDEN, JJ.

          FOX, JUSTICE.

         [¶1] A jury found Joseph Nielsen guilty of first-degree felony murder for causing the death of CF, a 3-year-old child. He appeals from his judgment and sentence, alleging that the district court committed plain error by permitting expert medical testimony opining on his guilt and credibility and by allowing improper cross-examination of his sole medical expert. We affirm.


         [¶2] Mr. Nielsen raises three issues on appeal which we rephrase:

1. Has Mr. Nielsen demonstrated plain error in testimony elicited from medical experts concerning a diagnosis that has a distinct legal meaning?
2. Has Mr. Nielsen demonstrated plain error in testimony elicited from medical experts concerning inconsistencies between Mr. Nielsen's proposed mechanism of injury and their observations of CF's injuries?
3.Has Mr. Nielsen demonstrated plain error in the State's cross-examination of Dr. Young?


         [¶3] Mr. Nielsen moved in with Crystal Hudson and her two young children shortly after they began dating in September 2015. The four of them lived together at Ms. Hudson's apartment until they were evicted in early August 2016. Three days after they moved into a new trailer home in Gillette, Wyoming, Ms. Hudson woke up at around 10 in the morning and checked on her children. She brought both her daughter, two-year-old SW, and her son, three-year-old CF, into the room she and Mr. Nielsen shared and asked him if they could get doughnuts for breakfast. They decided that Ms. Hudson would go get the doughnuts. As she was leaving, CF attempted to follow her out of the trailer home and became upset when Mr. Nielsen brought him back inside.

         [¶4] Ms. Hudson was about to check out at the grocery store when Mr. Nielsen called her and told her CF had fallen while trying to jump off the coffee table. Ms. Hudson heard "weird, . . . heavy breathing" in the background and told Mr. Nielsen to call 911. Mr. Nielsen called 911, and Officer Jeremy Traverse was dispatched to the trailer home. When Officer Traverse arrived, he saw CF lying on the couch. CF had a pulse, but his eyes were not reactive, he had urinated on himself, his breathing sounded like "snoring or gurgling," and he was "posturing."[1] Officer Traverse adjusted CF on the couch and held him in a "C-Spine" position, which involves straightening the spine and holding the head to prevent further injury. As he was holding the C-Spine position, Officer Traverse noticed a bruise on CF's sternum, "a bruise on the inside of his left arm, and other small bruises on his abdomen," "marks and bruises" on his face, and blood inside his mouth.

         [¶5] After paramedics arrived and began caring for CF, Officer Traverse spoke with Mr. Nielsen. Mr. Nielsen told him that he had been down the hallway near the bathroom when he saw CF standing on the coffee table. Mr. Nielsen told CF "no" and "[CF] then jumped and landed on [a] dollhouse, fell over it, and then the dollhouse fell on top of him." Mr. Nielsen believed CF had hit his chest on the dollhouse and that CF had gone "headfirst onto the carpet" before the dollhouse fell on him. When Mr. Nielsen moved the dollhouse, he saw that CF was "not acting normally," "breathing differently," and "making weird movements." Mr. Nielsen said he had carried CF to the couch and splashed cold water on CF's cheek, but he did not respond.

         [¶6] When CF arrived at the hospital, the paramedics told hospital staff that CF had reportedly jumped off a coffee table, flipped over a dollhouse, and hit his head on the ground. Emergency-room physician Dr. Theodore Lawson observed that CF was unconscious, non-responsive to stimulation, and that one of his pupils was larger than the other, indicating that brain-swelling was putting pressure on his optic nerve. Dr. Lawson ordered an immediate CT scan, which he testified showed that CF had a skull fracture, [2] a subdural hematoma, and several rib fractures[3] in various stages of healing. Dr. Joseph John Lawrence, the radiologist who interpreted CF's CT scan, testified that subdural hematomas "are unquestionably always the result of trauma" usually caused by motor vehicle accidents and "physical trauma, sometimes." Dr. Lawson testified similarly that subdural hematomas normally occur in "automobile wrecks where people are ejected and hit the ground . . . at highway speeds." He further testified that a subdural hematoma is "a terrible prognosis" and that he did not believe CF would survive. When asked if he found anything suspicious about CF's injuries, Dr. Lawson said:

[H]e had an abrasion on his head, and he apparently landed on a carpeted floor, which didn't make too much sense to me. He also had some other contusions.
. . . .
The fact that he had jumped off of a coffee table and supposedly hit a dollhouse just didn't conform to the amount of trauma that it would take to produce a skull fracture and a subdural hematoma[.]"

         Dr. Lawson asked the Gillette police department to investigate the incident.

         [¶7] Dr. Lawson determined that CF's injuries were "not something [they could] deal with in the ER." An air ambulance service transported CF to Children's Hospital Colorado, where several doctors, including Dr. Denis Bensard, took over CF's care. When asked what his assessment of CF's condition was, Dr. Bensard responded:

My assessment was that he was a young child that had suffered serious injuries. On his physical examination . . . we also saw scattered bruising of the face and the chest. . . . And with the history we were provided, [] the constellations of findings made us suspicious that this was nonaccidental trauma.

         The State asked Dr. Bensard to define "nonaccidental trauma," to which he responded: "It's inflicted injury." Finally, the State inquired about potential mechanisms of injury for subdural hematomas. Dr. Bensard responded:

We've studied this area and we've written on this area. Subdural hematoma is the most common pattern of injury we see for abusive head trauma. There are additional studies that indicate that it is very difficult from this height to sustain these types, this severe of an injury. And the bruising that he -- the pattern of bruising he had is very suspicious for abusive trauma.

         [¶8] Dr. Gina DeMasellis was the supervising physician in the pediatric intensive care unit of Children's Hospital Colorado when CF arrived there. She testified that she had been told that the mechanism of CF's injury was "a fall from a table." She was "not told the height of a table or any other further details." According to Dr. DeMasellis, the mechanism of injury affects her initial evaluation of a patient and is critical to the process of treatment. In her initial examination of CF, she noticed

a significant amount of bruising on his forehead and the sides of his head, including his right ear, his cheeks, . . . below his chin, and around his clavicles, . . . his right shoulder, the sides of his chest, as well as the sides of his abdomen, . . . and then bruising down his legs as well. He at this point was not sedated, but his pupils were fixed and dilated, meaning they're not responsive to light.

         Dr. DeMasellis testified that the fixed and dilated pupils made her "very concerned" because it indicates that "pressure that is applied to the brain stem may be irreversible. And that this is where we would lose all ability as humans to sense oxygen and carbon dioxide in our bloodstream, so your ability to breathe." She summarized his condition as "a young man who had a severe traumatic brain injury with significant concern for his ability to improve from it[.]" When asked about typical mechanisms of injury producing subdural hematomas, she testified that CF's injuries were "very consistent with motor vehicle collisions, as well as patients who downhill ski, who have an accident with a tree, maybe a pedestrian or someone who is on a bicycle being struck by a vehicle." She was concerned about the possibility of non-accidental trauma because

[a]nytime a young child comes in with the severity of his brain injury, we would be questioning that as a possibility, just by the subdural and the swelling of the brain as well as the herniation findings.
But in [CF's] case, when I was told the proposed mechanism, knowing the severity of injuries that we found on exam, that heightened my concern, yes.
. . . .
I would say that his subdural is definitely consistent with a very high speed with an abrupt stop injury. I would venture to say that I would find it hard to see enough of a high speed to develop from a 28-inch fall.

         [¶9] The State also asked the hospital's pediatric neurosurgeon, Dr. Brent O'Neill, about typical mechanisms of injury resulting in subdural hematomas. He testified:

With a very large subdural hematoma of the size [CF] had, it is usually a very high speed impact like a high speed motor vehicle crash, a fall from a two- or three-story building, a very high speed impact in sports, skiing. Very rarely in football, but on rare occasions we've seen those from football injuries. And then abusive head injury is a common source in our younger patients.

         He was concerned about the reported cause of injury because

things were most consistent with an abusive head injury. Sort of all the other ways to get that degree of brain injury . . . would be from a very high speed, high velocity mechanism. . . . a fall from a several story building or a high speed motor vehicle accident. . . .
But injuries to the extent that [CF had] are really never seen with a low height fall.

         [¶10] Four days after he arrived at the hospital, Dr. Carleen Zebuhr declared CF dead. She concluded that his death was "a result of his severe brain injury, part of which was subdural hematoma, and the resultant . . . swelling that the brain had, as demonstrated by the increased pressure in the brain." Dr. Zebuhr testified that "[i]n pediatric patients, the most common mechanism [for subdural hematomas] would be trauma, so something like a car accident or that type of thing." She was concerned the mechanism of injury was not as reported and that "anytime . . . that we have concerns for either nonaccidental trauma, or even if there are things that don't really make sense about the history and we have a concern for potential abuse, we consult [the hospital's Child Protection Team].

         [¶11] The State called pediatric nurse practitioner Denise Abdoo, who was a member of the hospital's Child Protection Team when CF was admitted. Nurse Abdoo spoke with CF's mother about his medical history and learned that CF had allegedly jumped off a coffee table and injured himself. She also performed a physical examination of CF. The State asked her a series of questions about her diagnosis and how she arrived at it:

Q. And you had indicated as part of your job with the Child Protection Team, you make diagnoses of patients; is that right?
A. Yes, sir.
Q. And in making those diagnoses, you take into account the history as provided?
A. Yes, sir.
Q. You take into account radiology?
A. Yes, sir.
Q. And any labs that are ...

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