2018-0341, State of New Hampshire v. Jami Castine

the trial court’s denial of her motion to set aside the jury’s verdict, and for period ending 10 years from the defendant’s release. The defendant appeals second first degree assault convicti on that was suspended in its entirety for a degree assault conviction, and a consecutive 10 - to - 20 year sentence on the convictions, a consecutive 10 - to - 20 year sentence on the enhanced second committ ed prison sentence of 10 - to - 20 years on one of the first degree assault (2016). The T rial C ourt (Delker, J.) sentenced the defendant to a stand assault against the victim’s brother, see RSA 631:2, I (a) (2016); RSA 651:6, I(e) (2016), as well as one charge of an enhanced felony version of second degree charges of first degree assault against the minor victim, see RSA 631:1, I(d) BASSETT, J. The defendant, Jami Castine, was convicted on two

brief and orally, for the defendant. Christopher M. Johnson, chief appellate defender, of Concord, on the

assistant attorney general, on the brief and orally), for the State. Gordon J. MacDonald, attorney general (Elizabeth C. Woodcock,

No. 2018 - 0341 Rockingham

http://www.courts.state.nh.us/supreme. release. The direct address of the court’ s home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by e - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to pre ss. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

separate blows necessary to support the separate convictions and sentences.” from the same or separate blows, the State failed to prove the requisite testimony that one cannot know whether the brain and eye injuries resulted in the form of brain bleeds.” The defendant a rgues that “in the face of expert cau se d serious bodily injury to the victim “by inflicting non - accidental trauma, detached retinas,” and on a second indictment alleging that she r ecklessly inflicting non - accidental trauma, in the form of retinal hemorrhaging and alleging that she recklessly caus ed “serious bodily injury to [the victim]. . . by The defendant was convicted of first degree assault on one indictment

hemorrhages and a retinal detachment.” side [of the brain] and . . . also one on the right side,” as well as “retinal he matomas, consisting of an area of bleeding on “the front top part on the left at trial, the victim had sustained, among other injuries, two subdural was examined on April 9 by Dr. Ianniello. According to the medical testimony Hospital, and finally “med - flighted” to Boston Children’s Hospital, where he family and the victim was taken to Exeter Hospital, later transferred to Elliot unresponsive. The defendant’s boyfriend summoned help from the defendant’s he picked the victim up from his crib, and the child “went limp” and became the victim began crying or sc reaming. The defendant’s boyfriend testified that home while she went out. Approximately ten minutes after the defendant left, On April 8, the defendant left the victim in her boyfriend’s care at their

to treat dehydration. The victim returned to the defendant’s care on March 31. gastroenteritis. He was given medication for nausea and an electrolyte solution by Dr. D’Aprix, an emergency room physician who diagnosed him with viral were very dry. Mother took the victim to Elliot Hospital where he was examined defendant told her he had been vomiting, refusing to eat or drink, and his lips On March p. 2 28, Mother took the victim from the defendant because the

varying periods of time. approximately eighteen months old, Mother left him in the defendant’s care for the friend. Between March 4 and April 8, p. 2 2016, when the victim was introduced Mother to the defendant, who had provided babysitting services to (Mother) has four children, including the victim. In November 2014, a friend The jury could have found the following facts. The victim’s mother

We note that the defendant does not challenge her other convictions. that one of her first degree assault convictions must be reversed, and remand. two first degree assault indictments were the result of a single act. W e agree reasonable conclusion that the injuries and serious bodily harm alleged in the be reversed because the evidence at trial was insufficient to exclude the convictions. She argues that one of the first degree assault convictions must judgment notwithstanding the verdict, as to one of her t wo first degree assault p. 3 3

consistent with innocence has been excluded, but, rather, whether [T]he proper analysis is not whether every possible conclusion

Vincelette, 172 N.H. at p. 3 354. circumstantial, it must exclude all reasonable conclusions except guilt.” Because the evidence as to an element of proof in this case was “solely

implausible explanations for the victim’s inju ries. perpetrators, and the defendant’s attempts to “cover her tracks” with maltreatment of the victim and his fear of her, the exclusion of other possible access to the victim at those times, eyewitness testimony as to t he defendant’s medical opinion testimony as to when the injuries occurred, the defendant’s assaults. Rather, the State’s case depended upon drawing inferences from the brain and eye injuries.” Nor did the defendant confess to any such [the defendant] assault [the victim] even once with such force a s would cause assault. We agree. As the defendant notes, “N o eyewitness testified to seeing she caused the victim’s brain and eye injuries by means of more than one circumstantial evidence cases because the State had no direct evidence that The defendant argues that we must use the standard we apply in solely

evidence must exclude all reasonable conclusions except guilt.” Id. omitted). “In the latter circumstance, to be sufficient to sustain the verdict, the circumstantial.” State v. Woodbury, 172 N.H. p. 3 358, 363 (2019) (citation reasonable doubt, we employ a different test when the evidence is solely verdict unless no rat ional trier of fact could have found guilt beyond a N.H. 350, 354 (2019). “Although our general rule is that we will uphold a jury’s error; therefore, our standard of review is de novo.” State v. Vincelette, 172 “A challenge to the sufficiency of the evidence raises a claim of legal

indictment, were caused by separate acts. the first indictment, and his “brain bleeds,” as charged in the second that the victim’s “retinal hemorrhaging and detached retinas,” as charged in convict on bo th first degree assault charges, the State was required to prove under 1 p. 3 3 years of age, not each individual injury. We agree. Accordingly, to each act of knowingly or recklessly causing serious bodily injury to a person not dispute, that the unit of prosecution under RSA 631:1, I(d) in this case is injury.” Id. Relying upon Lynch, the defendant contends, and the State does criminalized the act of recklessly causing bodily injury — not each individual “[t]he plain language of the statute establishes that the legislature has causing bodily injury to another,” Lynch, 169 N.H. at 708. We concluded that bodily injury to another,” RSA 631:2 - a, I(b) (2016), was “each individual act of prosecution for the form of simple assault criminalizing “[r]ecklessly caus[ing] I(d). In State v. Lynch, 169 N.H. 689 (2017), we held that the unit of cause[d] serious bodily injury to a person under 13 years of age.” RSA 631:1, required to prove, beyond a reasonable doubt, that the defendant “recklessly To convict the defendant of first degree assault as charged, the State was p. 4 4

deg ree of retinal hemorrhages without some form of brain injury.” When asked retinal hemorrhages] occur together,” and typically one would not see “that together.” And Dr. Ricci testified that “[t]ypically [subdural hematomas and fact that it would be such a significant injury, commonly it would happen all They ’ re all. . . consistent with the acceleration deceleration injury, so given the testified: “Commonly, all — all these things can occur with the same event. victim’s injuries occurred at the same time or at different times, Dr. Chan hematoma.” Similarly, when asked i f she had an opinion as to whether the just mix with the new blood and it ’ s difficult to tell about a preexisting hematomas because if there was a prior [subdural hematoma], the blood would taken o n or after April 8] whether [the victim] had any preexisting subdural with counsel that “[i] t would not be possible to determine [from the CT scans one or multiple events, the presentation would have been the same and agreed testified that whether the bleeding in the victim’s brain had been the result of happened in one incident or if there was repeated trauma.” She specifically Dr. Ianniello stated: “I think unfortunately we can’t say whether this all

victim presented on April 8 occurred at the same time or separately. possible to determine with any certain ty whether the injuries with which the single inflicted trauma or separate inflicted traumas, and that it was not Several medical experts opined that the injuries could have been the result of a from the same mechanism and that those injuries commonly occur together. subdural hematomas and retinal hemorrhaging/detachment — could result jury heard expert testimony that both types of injuries the victim sustained — reviewed the victim’s medical records, including Dr. Chan and Dr. Ricci. The including Dr. D’Aprix and Dr. Ianniello, as well as phys icians who had The jury heard testimony from several physicians who treated the victim,

agree. the evidence is insufficient to sustain two first degree assault convictions. We caused the eye injury and the brain injury. Therefore, the defendant argues, inconsistent with guilt on two first degree assault charges, is that a single blow blows, one reasonable conclusion consistent with the evidence and, therefore, determine whether the victim’s injuries resulted from one blow or from multiple The defendant argues that, because the medical experts could not

Id. at 35 p. 4 4 - 55 (citation omitted).

hypothesis of innocence. guilt and inconsistent, on the whole, with any reasonable consider whether the circumstances presented are consistent with a reasonable hypothesis other than guilt. Rather, we must that, when viewed in isolation, these evidentiary fragments support or break the evidence into discrete pieces in an effort to establish excluded. We do not review each circumstance proved in isolation all reasonable conclusions based upon the evidence have been p. 5 5

existing head trauma. Given the evidence in this case, d etermining whether presenting at his March emergency room visit “could have been related” to pre - T he State relies upon Dr. Ricci’s opinion that the victim’s symptoms

conclusions other than guilt. before his March emergency room visit does not exclude all reasonable this argument fails. Proof that the victim “could” have suffered head trauma the eye injuries, including retinal hemorrhaging, after that visit.” On its face, before his March 2016 emergency room visit and additional trauma, causing Ricci and Dr. D’Aprix shows that the victim “could have suffered head trauma Nor are we persuaded by the State’s argument that the testimony of Dr.

serious bodily injuries alleged in the indictments resulted from a single blow. been repeatedly abused, does not exclude the reasonable conclusion that the of the victim’s fear of the defendant, while consistent with the victim having with the serious bodily injuries alleged in the indictments. Similarly, evidence could reasonably reflect a desire t o explain bruising no t causally connected that the victim had been repeatedly assault ed by someone other than herself single blow. As the defendant points out, statements that she made indicating that the serious bodily injuries alleged in the two indictments were caused by a than one occasion, that evidence fails to exclude the reasonable conclusion might arguably support a finding that the defendant abused the v ictim on more We are not persuaded. Although t he evidence relied upon by the State

visit.” trauma, causing the eye injuries, including retinal hemorrhaging, after that head trauma before his March 2016 emergency room visit and additional then concludes that this testimony shows that the victim “could have suffered bruising of the upper and lower eyelid that was evident on April 8. The State supporting a finding that the victim did not present on March 28 with the have been related to pre - existing head trauma,” with Dr. D’Aprix’s testimo ny testimony that the victim presented with symptoms on March 28 “that could happened on separate occasions.” Finally, the State contrasts Dr. Ricci’s which the State argues “certainly left the possibility open that the injuries that “one can have subdural hematomas . . . without retinal hemorrhages,” victim wa s afraid of the defendant. T he State also notes that Dr. Ricci testified repeatedly hit the victim. In addition, the State points to evidence that the made several statements from which the jury could have inferred she had to the dates of the injuries. Nevertheless, the State argues that the defendant The State readily admits that the medical evidence was not conclusive as

acute, not fresh.” None of the other experts testified to the contrary. when these injuries happened, other than the subdural hematomas were not testified: “No, I — I don’ t think there’s any way to determine with any precision traumas may have occurred or whether they came at the same time, he whether there is any way to determine chronologically when these two separate p. 6 6

prior to the March 28 visit wo uld not exclude the reasonable conclusion that specifically, the “brain bleeds,” the fact that the victim sustained head trauma trauma also resulted in the serious bodily injury alleged in the indictment, little value. In the absence of proof beyond a reasonable doubt that that head March 28 emergency room visit, such a finding, standing alone, would be of support a jury finding that the victim “suffered head trauma” prior to his Furthermore, although the State contends that the evidence would

room v isit. doubt that the victim suffered head trauma prior to his March 28 emergency State’s argument, the evidence does not support a finding beyond a reasonable in fact, were not so related. Accordingly, we conclude that, contrary to the head trauma does not exclude the reasonable conclusion that the symptoms, the fact that the victim’s symptoms “could have been” related to pre - existing not exclude all reasonable conclusions except g uilt. On the record before us, victim’s symptoms “could have bee n” related to pre - existing head trauma does sustain two first degree assault convictions. Dr. Ricci’s opinion that the expert medical evidence relied upon by the State in its brief is not sufficient to demanding “proof beyond a reasonable doubt” standard, we conclude that the I n this criminal case, where the evidence must meet the much more

conclude that causal link “probably” existed). testimony necessary to survive a motion for directed verdict must be enough to Bronson v. The Hitchcock Clinic, 140 N.H. 798, 802 (199 p. 6 6) (quantum of expert definiteness required to meet the claimant's burden to prove causation.”); cf. that expert medical testimony based on ‘ could, ’ ‘may,’ or ‘possibly’ lacks the omitted)); Paul sen v. State, 541 N.W.2d 636, 643 (Neb. 1996) (“We have held related” and “very possible” d oes not legally establish causation (emphasis 192, 193 (R.I. 1968) (physician’s opinion expressed in terms of “could be 102, 108 - 09 (Neb. Ct. App. 2019); Taglianetti v. Jo - Dee Corp oration, 239 A.2d meet even that lower burden of proof. See Kelly v. Cutch, Inc., 938 N.W.2d testimony based on “could” has been held to lack the definiteness required to facts need be proved only by a preponderance of the evidence, expert medical New Oxford American Dictionary 394 (3d ed. 20 1 0). In the civil realm, where suffered pre - existing head trauma. “Could” is “used to indicate possibility.” Here, the State points to expert testimony that the victim “could” have

(stating that “la y jury had no basis for offering a medical diagnosis”). knowledge”); People v. Buffington, 152 Cal. App. 4th 44 p. 6 6, 455 (Ct. App. 200 p. 7 7) “may not draw conclusions which require application of specialized medical (1997) (lay witness may not testify competently about a medical diagnosis, and testimony supporting such a finding. Cf. State v. Martin, 142 N.H. 63, 65 symptoms, that the victim had suffered pre - existing head trauma absent expert the lay jury could not have concluded, based on evidence of the victim’s trauma requires the application of speciali zed medical knowledge. Accordingly, the victim’s symptoms at his March emergency room visit were related to head 7

injuries happened, other than the subdural hematomas were not acute, not fresh [on April 8].” Dr. Ricci stated: “No, I — I don't think there's any way to determine with any precision when these have occurred, that is, which came first and whether they came at the same time.” In resp onse, whether there was “any way to determine chronologically when these two separate traumas may Indeed, the very next question asked of Dr. Ricci after he gave the response quoted above was 1 viral gastroenteritis, testified that, when examined, the victim had no fever and head. However, Dr. D’ Aprix, who diagnosed the victim on March 28 as having decreased activity level, and his eyes had been seen rolling in the back of his victim was pale, vomiting, not eating, dehydrat ed, had diarrhea, fever, favorable to the State, there was evid ence that on or before March 28, the the body.” RSA 625:11, VI (2016). In this case, viewed in the light most protracted loss of or impairment to the health or of the function of any part of bodily injury’ means any harm to the body which causes severe, permanent or emergency room visit resulted in the “serious bodily injury” alleged. “‘Serious beyond a reasonable doubt, that any head trauma suffered prior to the March Nor does the State point to evidence that would permit the jury to find,

not that the subdural hematomas occurred prior to the retinal hemorrhages. 1 Thus, it is clear that Dr. Ricci was not opining that it was more probable than

opposite is less true. o n the surface of the brain without retinal hemorrhages, alth ough the time. On the other hand, one can have subdural hematomas or bleeding I — I think given in this case, they could well have happened at the same that degree of retinal hemorrhages without some form of brain injury. So Typically they occur together. So I would say — we wouldn’t typically see

was: independently from the retinal hemorrhages in this case. His full response asked whether it was possible that the subdural hematomas occurred Moreover, that testimony is only part of Dr. Ricci ’s response. Dr. Ricci was on the surface of the brain at the time of the March emergency room visit. testimony falls far short of opining that the victim was suffering from bleeding .. . bleeding on the surface of the brain without ret inal hemorrhages.” T hat testimony relied upon by the State is Dr. Ricci’s testimony that “one can have requiring application of specialized medical knowledge. The only expert visit, whether that head trauma resulted in brain bleeds is again a matter supported a finding that the victim suffered head tr auma prior to the March 28 victim suffered brain bleeds. Even if we agreed with the State that the evidence beyond a reasonable doubt that before the March 28 emergency room visit, the The State fails to point to an y evidence that would support a jury finding

degree assault charges. injuries, a conclusion that is inconsistent with a guilty verdict on two first the “brain bleeds” were the result of the same blow that caused the eye p. 8 8

HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.

convictions, and remand. court to enter a judgment of not guilty on one of the two first degree assault judgment notwithstanding the verdict to the extent that it requested the trial reverse the denial of the defendant’s motion to set aside verdict and for beyond a reasonable doubt, the product of different acts. Accordin gly, we reasonably conclu ded that the victim’s injuries and serious bodily harm were, assault charges. Given the evidence in this case, the jury could not have conclusion that is inconsistent with a findin g of guilt on both first degree degree assault indictments were the result of a single act — a reasonable conclusion that the injuries and serious bodily harm alleged in the two first In sum, we conclude that the evidence was insufficient to exclude the

bleeds” and serious bodily injury alleged in the indictment. beyond a reasonable doubt that that head trauma resulted in the “brain 2 p. 8 8 visit, we would conclude that the evidence does not support a finding we were to assume that the victim did suffer h ead trauma prior to his March was tied to the symptoms with which he presented on March 28. Thus, even if that is, after he had suffered both brain and eye injuries. None of that evidence evidence relat ed to the victim’ s condition after he was hospitalized on April 8; While evidence of serious bodily injury was presented to the jury, that

brain injury.” treatment he received that day was not consistent with his having a “severe records from March 2 p. 8 8, testified that the victim’s improvement based on the took his normal naps, and up running around.” Dr. Chan, who reviewed the doing great.” She stated that “he was back to eating and drinking. He wasn’t pale, When asked how the victim was doing on March 30, she testified that “[h]e was “feeling better,” eating, drinking, and playing, though he looked “a little tired.” discharge home. M other testified that after leaving the hospital, the victim was eating and drinking without further vomiting, and that he was stable for received on March 28 — Dr. D’ Aprix testified that he was much more active, evidence is undisputed that the victim responded well to the treatment he stipulated tha t in his opinion it would have been “a mild head injury.” T he had both “the flu and a head injury,” he agreed that was possible, but his pupils were normal. When asked whether it was “possible” that the victim