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.
DAVIS, C.J., and BURKE [*] , FOX, KAUTZ, and BOOMGAARDEN, JJ.
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.
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?
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.
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." 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.
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.
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,  a subdural hematoma, and
several rib fractures 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[.]"
Lawson asked the Gillette police department to investigate
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
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
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.
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.
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
[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.
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.
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.
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].
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
Q. And you had indicated as part of your job with the Child
Protection Team, you make diagnoses of patients; is that
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 ...