This opinion is subject to revision
publication in the Pacific
IN THE UTAH COURT OF APPEALS
State of Utah,
Plaintiff and Appellee,
Defendant and Appellant.
(For Official Publication)
Case No. 971137-CA
F I L E D
December 24, 1998
The Honorable K.L. McIff
E. Kent Winward, Ogden, for
Jan Graham, J. Frederic Voros Jr.,
Robert N. Parrish,
and Craig L. Barlow, Salt Lake
City, for Appellee
Before Judges Davis,
Bench, and Jackson.
Fisher appeals his conviction of abuse or neglect of a disabled
child, a third degree felony, in violation of Utah Code Ann. §
76-5-110 (Supp. 1998). Fisher argues that the evidence at trial was
insufficient to support a finding that he was a "caretaker" of a
"disabled child," as those terms are used in section 76-5-110, and
that section 76-5-110 is unconstitutionally vague. He further argues
that, under State v. Shondel, 22 Utah 2d 343, 453 P.2d 146
(Utah 1969), the charges against him should be reduced to
misdemeanor child abuse. Finally, Fisher argues that his right to a
unanimous jury verdict was violated. We affirm.
Fisher was a
nineteen-year-old counselor for Northstar, a wilderness program for
troubled youth, in 1994. The Northstar program had four sections:
"A-team," which was an orientation/holding area for youth entering
the program; "Primitive," in which the children were taken out into
the Escalante River basin with backpacks, sleeping bags, and modest
amounts of food; "Handcarts," in which the students learned to work
together as a team; and "Llamas," the final section of the program,
in which the students learned to care for animals and also prepared
to return to their homes.
Fisher was assigned
as a staff member, along with Sonny Duncan and Jeff Hohenstein,(1)
to lead a group on the Primitive section of Northstar in March 1994.
Duncan was the "head instructor." Fisher had about three months
experience, which was more than the other two instructors. The
Primitive section began with a two-day fast called "Impact." This
forty-eight-hour fast was the maximum allowed by state regulations.
After Impact, each student was given a can of peaches to break the
fast, and then they received a one-week supply of food. Each week,
the group would meet with other Northstar employees to pick up the
next week's food supply.
provided that the students were not told how to ration their week's
supply of food; rather, they were allowed to eat as much as they
wished each day. Each food package generally consisted of rice,
lentils, oatmeal, cornmeal, trail mix, and smaller amounts of fresh
vegetables, cheese, and sausage. The students were required to cook
their food themselves in a metal cup (holding about five fluid
ounces) provided by Northstar. The three instructors could have
other food, but they were not allowed to share with the students.
Each instructor was also given one twenty-four-hour leave each week.
At the beginning of
the program, each student was assigned a backpack, sleeping bag
(rated to twenty degrees below zero), and clothing.(2)
The students were not allowed to wear a watch or carry a compass,
and were unaware of their location except to know that they were a
long way from the nearest town. To make any attempt to run away more
difficult, the instructors kept the group away from roads.
The students had to
keep a daily journal in which they recorded their progress through
the program. Each student's journal was read by an instructor, who
also wrote comments to the student in the student's journal. The
instructors also had to keep journals.
The students were
instructed in various wilderness skills, such as identifying edible
plants and learning to start a fire using a "bow drill." The general
rule was that a student could not "use the fire"--that is, sit by
the fire in the evenings--until he or she had succeeded in starting
a fire with the bow drill. Most nights the group slept under a
shelter of tarpaulins.
The practice in the
Primitive phase of the Northstar program was for the students and
staff to eat only two meals a day--breakfast and dinner. However,
students were allowed to eat their weekly food allotment at whatever
pace they chose, and they were not prohibited from eating a mid-day
meal if they wished. No one was allowed to share food with anyone
Most days, an
instructor was in radio contact with Northstar's Escalante office.
The instructors were expected to report any illness, complaint, or
disciplinary incident (such as a student refusing to carry his or
her pack or trying to run away) to their backup supervisor.
Upon being employed
by Northstar, each instructor reviewed and signed a copy of the
Northstar policies and procedures, which were consistent with state
licensing standards. The policies provided that "line staff" (the
instructors) were responsible "for the safety and welfare of fellow
staff members and students."
One section of the
policies detailed the duties of staff members, and also outlined
actions forbidden by Northstar. In particular, the policies
instructed staff never to "call students names or make jokes
directed toward any individual that could be interpreted as
emotional abuse," and never to "make comments that are condeming
[sic] of the students." Each staff member--including Fisher--was
also required to review and sign a copy of the Provider Code of
Conduct. Fisher initialed each line of the pages entitled
"Discipline and Treatment of the Student," which provided that
The following is not
appropriate treatment of a student and is grounds for dismissal:
. . . .
2. Verbal abuse
using language which attacks the well being of the student. This may
include but is not limited to name calling, teasing, humiliation,
ridicule, use of foul and abusive language, etc.
3. The withholding
of any meal.
4. Excessive denial
of ongoing program services or denial of any essential program
services solely for disciplinary purposes.
. . . .
8. Denial of shelter, clothing or
. . . .
11. Failure to provide adequate
medical care and/or treatment as is necessary or as is instructed by
A.B. was enrolled in Northstar on February 28, 1994, by his
parents. A.B. had been removed from his Phoenix home early that
morning--with no warning to him, but with his parents' consent--and
escorted by Northstar employees to Escalante, Utah. When A.B.
entered the program, he was five feet, ten inches tall and weighed
131 pounds. A.B. was assigned to Fisher's Primitive section on
March 11, and in accord with Northstar practice, ate no food on
March 12-13 (the "Impact" portion) except some prickly pear cactus
he foraged. On March 12, A.B. noted in his journal that he fell
twice while hiking and could not get up because the pack was too
heavy . . . . I fell because I lost balance and my legs were so weak
. . . . My whole body became numb that time and I was so weak that I
couldn't even lift my arms. I was down for so long that I began to
lose sight. Not go blind but I couldn't keep my eyes open.
often heard complaints of various ailments from students, and
believed that most times, students feigned complaints in an attempt
to be taken out of the program. The instructors testified that they
believed A.B., too, was feigning his problems and fell because he
was lazy and did not want to carry a pack.
On March 13, to
break the Impact fast, A.B. and the others each ate a can of
peaches. That night A.B. ate rice and lentils for dinner. The next
day, March 14, he ate both breakfast and dinner. A.B. also fell
while hiking on this day. He did not eat breakfast on the morning of
March 15. He stopped hiking and lay down, complaining that he was
too tired to hike and could not go any further. Again, Fisher and
the other instructors interpreted A.B.'s complaints as "a lack of
motivation and laziness." A.B. and another student decided to drop
their packs--that is, continue hiking with the group but without
their packs--and they were told by Fisher and the other instructors
that if they dropped their packs, it would be several days before
they could retrieve them. A.B. and the other student decided
nonetheless to drop their packs, leaving behind their food, sleeping
bags, and cooking cups. As a result, A.B. was not able to cook food
that evening (although he ate some cold food). A.B. was also
without his sleeping bag and coat that night, and slept under the
shelter with the group. The low temperature that night was
thirty-one degrees Fahrenheit.
A.B. had less
difficulty hiking the next day, March 16, although he and another
student slid down a slickrock wall, breaking a couple of water
containers and suffering a few minor abrasions. Fisher interpreted
A.B.'s ability to hike well that day as proof of A.B.'s laziness
on the previous days. None of the students ate dinner that night,
because they did not have enough water. The low temperature was
thirty-six degrees Fahrenheit, and A.B. again slept without a
On March 17, the
only breakfast A.B. ate was a six-inch-long raw lizard and one
cooked scorpion (several other students and staff members also ate
scorpions). The group returned to the dropped packs that day, and
A.B. was able to eat a hot dinner. A.B. ate two meals on March 18.
That day, the entire group waded through chest-deep water, and
A.B.'s pack and its contents, including his clothes and sleeping
bag, were soaked through. The low temperature that night was
thirty-six degrees Fahrenheit.
None of the students
ate breakfast on March 19, but they did eat rice and lentils for
dinner. The group did not hike on March 20. When A.B. and another
student were still not able to make a fire using the bow drill,
Fisher established a "no fire, no food" rule, and the other
instructors acquiesced in his decision. The next day, March 21,
A.B. wrote in his journal that
"I haven't been able
to eat for awhile [sic] and I'm pretty cold and hungry. I haven't
eaten for a long time. Actually for more than a day." He also wrote
that I am in terrible condition here. My hands are all chapped and
my lips are cracking. I feel like I'm losing control of my body. I
start[ed] to pee my pants every night for the past three nights and
today when we started our little hike I took a dump in my pants. I
didn't even feel it coming. It just happened. I told Jeff [Hohenstein]
because I thought he might be more sympathetic and easy on . . . me,
but he yelled to Craig [Fisher], "He took a dump in his pants." . .
. All of the other students started to laugh and I couldn't help it.
Again, Fisher and
the other instructors interpreted A.B.'s incontinence as a sign
that A.B. lacked "self-respect" and was feigning ailments. Although
the group often slept in a "burrito"--with everyone sleeping close
together under the same tarp--after this date no one would sleep
next to A.B.
It is not clear
whether A.B. ate dinner that night, but he never succeeded in
starting a fire using the bow drill and would thus have been
prohibited from eating anything but cold or foraged food under
Fisher's "no fire, no food" rule. Fisher left for his
twenty-four-hour leave on the evening of March 21.
A.B. was not
allowed to eat breakfast on the morning of March 22 because "his cup
wasn't clean" and he "didn't get a fire," but he did forage some
prickly pear cactus. Because Fisher was in town on leave, he did not
participate in this decision. Fisher returned from leave on the
evening of March 22 and was angry at the students because they were
late setting up camp. As a result, the students were not allowed to
eat dinner, although the staff ate a dinner of bacon and pork chops.
That evening, A.B. wrote in his journal that
"[a]ll I can think
about is cold and pain . . . . I need to eat now. I haven't been
able to eat trail food all day, no breakfast, no trail food,
nothing. I am so cold."(3)
On March 23,
cup was still not clean, so he was not allowed to cook food. The
other students ate rice and lentils. A.B. again told the
instructors that he could not carry his pack any longer and that his
stomach hurt. Fisher reminded A.B. that if he dropped his pack he
would not have food or a sleeping bag for the next few days, but
A.B. dropped his pack anyway. A.B.'s only dinner that night was a
mixture of powdered milk and brown sugar given to him secretly by
another student. That night, he slept under the shelter, without a
sleeping bag, blanket, or coat. The low temperature that night was
twenty-five degrees Fahrenheit.
A.B. was not
allowed to eat breakfast or dinner on March 24, and he again slept
without a sleeping bag or blanket. The low temperature that night
was twenty-nine degrees Fahrenheit, and A.B. told the instructors
that he was cold. The next morning, March 25, A.B. had only prickly
pear cactus or pine needle tea for breakfast. The group hiked eight
miles that day. The instructors "were a little bit concerned about
[A.B.'s] energy level" and "his appearance. He was getting a bit
thin at that point [and] was weak, his face was pale and his cheeks
were hollow" and he was "looking gaunt." A.B. was not allowed to
eat that night, again complained of a stomach ache, and was listless
The owners of
Northstar, Bill Henry and Lance Jaggar,(4)
visited the group's camp that night. They gave A.B. a wool blanket
to sleep with, but they directed the instructors not to let A.B.
sleep under the shelter because he had not helped build it. A.B.
slept near the fire. The low temperature that night was twenty-seven
pear cactus and pine needle tea for breakfast the next morning,
March 26. On Henry and Jaggar's direction, the instructors made the
students do "physical training"--100 four-count jumping jacks, 100
leg raises, 100 sit-ups, and 50 pushups. A.B. was able to do only
ten sit-ups on his own power, and the instructors helped him do
another twenty more. The group hiked only two miles that day,
because A.B. said he could not hike any longer. That night, Fisher
and another instructor took rice and lentils from another student
and gave them to A.B. to eat. Later that night, he again complained
of stomach pain and vomited. The low temperature was twenty-eight
Fisher left for his
second twenty-four-hour leave late on the night of March 26. He
called Henry and asked for A.B. to be transferred to the "A-team"
section of Northstar because A.B. was poorly motivated and had a
bad attitude. Also on March 26, Jeff Hohenstein filled out a weekly
evaluation for A.B. He wrote that A.B.'s health was "[n]ot good.
Since he dropped his pack he has lost more weight. He is listless .
. . ." Hohenstein described A.B.'s motivation as "[n]on-existent:
even in the face of the strictest consequences he practically,
almost literally, has to be picked up and made to move."
On March 27,
was allowed to eat rice and lentils for breakfast and dinner, in
spite of the "no fire, no food" rule. The group hiked more than ten
miles that day. When Fisher returned from his twenty-four-hour
leave, he brought an electrolyte replacement drink for A.B. and
another student. Although he still had not made a fire, A.B. was
allowed to eat that night, because Fisher and Hohenstein were
concerned about him. The low temperature was thirty-two degrees
The "no fire, no
food" rule was invoked again by the three instructors on March 28,
and A.B. was not allowed to eat breakfast. They hiked between eight
and fifteen miles that day. By this time, A.B. looked skinny and
unhealthy, his face was drawn, and he could not hike well. A.B. had
to be carried the last half-mile into camp that night, and was
"always complaining" that his stomach hurt. Again, the instructors
discounted A.B.'s complaints and called him a "faker."
At this point, the
instructors were concerned about A.B.'s weight loss and told him he
had to eat. The instructors made him eat a cup of rice and lentils,
and A.B. complained that it hurt him to eat. A.B. told the
instructors that his stomach hurt and he needed to see a doctor, but
they told him it was a long way to a doctor. The low temperature
that night was thirty-two degrees Fahrenheit.
The group did
"full-body hygiene" on March 29--that is, they all stripped down,
washed their bodies, and laundered their clothes. A.B.'s fellow
students testified that he was pale and "really skinny" and looked
like a "Jewish person" in a "concentration camp."
A.B. again asked
that day, in Fisher's presence, to see a doctor. He again complained
that his stomach hurt and that he was dizzy, and he also reported
seeing spots. A.B. hiked poorly that day, and repeatedly fell down.
When Fisher asked A.B. why he was "falling all the time,"
responded that he did not know. A.B.'s "very general and vague"
answers led Fisher to conclude that "it was something minor being
exaggerated or an outright fake."
had difficulty gathering wood. The instructors, including Fisher,
mocked A.B. by saying "I'm to [sic] week [sic] to pick up wood. I'm
weak. My stomach hurts. I can't eat." A.B. ate rice and lentils
that night. The low temperature was thirty-two degrees Fahrenheit.
A.B. ate oatmeal
for breakfast on March 30. He retrieved his pack after the group had
hiked a mile or two. However, he decided to abandon it again after
he fell over while carrying it. A.B. was carried back to camp by
other students, and on the way there A.B. looked up at the sky and
said that it "looked purple and that there was lights flashing."
A.B. again complained of stomach pain. Fisher wrote in his journal
that the group "tried to hike, but [A.B.] wouldn't allow us
to," and that A.B. was "throwing fits and moaning." Fisher radioed the Northstar office, and Georgette Costigan,(5)
an emergency medical technician, met the group to check on A.B.
how he was doing and gave him a piece of cheese. She did not do a
medical assessment beyond noticing that his skin was flushed and dry
and feeling for (but not counting) his pulse. A.B. told Costigan
that his stomach hurt. Neither Fisher nor the other instructors told
Costigan that A.B. had been complaining of stomach pain; he had
gone without food or a sleeping bag; he complained of dizziness and
seeing spots and other visual hallucinations; he had repeatedly
fallen while hiking; he was incontinent; he had vomited; he had
repeatedly asked to see a doctor; or that he had been losing weight.
When Fisher asked Costigan to take A.B. back into town with her, Costigan said that because it was not anything serious, she would
leave him there for the night and come back to check on him again
the next day.
A.B. vomited again
that night. He was moaning, and when Fisher told him to stop
moaning, A.B. said that he could not. While the other students ate
dinner and wrote in their journals, A.B. sat away from the group,
his head tilted to the side and his jaw agape, drooling. Fisher told
him to stop drooling and mimicked him. A.B. ate rice and lentils
that night, and complained that his stomach was hurting "really
bad." He told Fisher that he did not want to die, and Fisher assured
him that he would not. A.B. slept in a sleeping bag that night for
the first time in eight days.
On the morning of
March 31, A.B. took about one hour to leave the shelter and crawl
to the campfire, which was twenty feet away. Fisher testified that
A.B. looked "really bad . . . . He looked really sick and he
was--he was weak. We had to . . . pick him up off the ground."
repeatedly fell asleep while he was crawling, and Fisher and the
other instructors would wake him up and tell him to keep going. He
had again become incontinent. When A.B. was finally able to stand
up, he immediately fell over again. A.B. told Fisher and Hohenstein
that he had to use the latrine, and when they went to check on him
they found that A.B. could not make it to the latrine. They carried
him to the latrine and left him there; when they returned for him,
they found that he had fallen into the latrine and his feet were
covered in excrement.
radioed the Northstar office to tell them that A.B. refused to hike
and was complaining of a stomach ache. Costigan told the instructor
to leave A.B. with the Llama group, which she would be visiting
that day. Students carried A.B. to the Llama camp. Some time later,
other Northstar employees arrived to take A.B. from the Llama group
to the A-team (holding group). A.B. was unable to walk and looked
pale and sickly, and he told one of these staff members that he was
"really sick." A Northstar employee, who had been told that
was feigning illness, told A.B. that he just needed to get in the
truck. A.B. got into the truck and the Northstar employee fastened
A.B.'s seat belt.
For the next few
minutes, the staff made fun of A.B. and imitated his collapse. When
A.B. slouched over in the truck, they unbelted him, checked for a
pulse, began CPR, and radioed Northstar for help. A physician's
assistant, who had examined A.B. before he began the Northstar
program, arrived and began advanced life support procedures on
A.B. The physician's assistant later testified that A.B. was so
gaunt he did not recognize A.B. as the boy he had examined several
weeks earlier. A helicopter arrived, and A.B. was flown to Page,
Arizona, where he was pronounced dead.
The autopsy revealed
that A.B. died of acute peritonitis resulting from a perforated
ulcer. Expert testimony established that the ulcer had most likely
developed around March 15, and that malnutrition and hypothermia
would have aggravated his condition. During his time at Northstar,
A.B.'s weight dropped from 131 pounds to 108 pounds, a 17% loss of
I. Sufficiency of the Evidence
Fisher first argues
that the evidence presented at trial was insufficient to show that
A.B. was a "disabled child" and Fisher was his "caretaker," as
those terms are used in Utah Code Ann. §§ 76-5-110(1)(b)-(1)(c)
When examining the
sufficiency of the evidence in a criminal jury trial, we begin with
the threshold issue of statutory interpretation, which we decide as
a matter of law. With regard to the facts, "we review the evidence
and all inferences which may reasonably be drawn from it in the
light most favorable to the verdict of the jury." Under this
standard, we will reverse a conviction only when the evidence,
viewed in light of our interpretation of the statute, "is
sufficiently inconclusive or inherently improbable that reasonable
minds must have entertained a reasonable doubt that the defendant
committed the crime of which he [or she] was convicted."
State v. Gibson,
908 P.2d 352, 355 (Utah Ct. App. 1995) (alteration in original)
When faced with an
issue of statutory construction, we first examine the statute's
plain language. See State v. Rudolph, 349 Utah Adv.
Rep. 11, 14 (Utah 1998). Section 76-5-110 provides that "[a]ny
caretaker who abuses or neglects a disabled child is guilty of a
third degree felony." Utah Code Ann. § 76-5-110(2) (Supp. 1998). The
statute defines a "disabled child" as "any person under 18 years of
age who is impaired because of . . . physical illness . . . or other
cause, to the extent that he is unable to care for his own personal
safety or to provide necessities such as food, shelter, clothing,
and medical care." Id. § 76-5-110(1)(c). A "caretaker" is
defined as "any parent, legal guardian, or other person having under
his care and custody a disabled child; or any person [who] has
assumed by contract or court order the responsibility to provide
food, shelter, clothing, medical, and other necessities to a
disabled child." Id. § 76-5-110(1)(b)(i) & (ii).
A. Disabled Child
The State contends
A.B. was a disabled child because he was "impaired because of
[some] other cause." In particular, the State argues that because
A.B. was unable to provide his own food, clothing, and shelter, and
because food and shelter were withheld from him, Northstar is an
"other cause" under the statute. In that sense, A.B. was a
"disabled child" from the moment he began the Primitive section of Northstar. The State also argues that
A.B. was disabled because his
ulcer disease (and resulting peritonitis), coupled with malnutrition
and exposure to cold, was a physical illness within the meaning of
the statute. In this respect, it is impossible to say when, exactly,
during the Primitive section A.B. became a disabled child.
Fisher argues, in
effect, that interpreting the statute this way would not comport
with the legislative intent behind the statute, and that this
definition of "disabled" could apply to any child. He argues
specifically that A.B.'s ulcer disease did not render him
physically disabled until, at most, the last forty-eight hours of
his life. Fisher argues further that, under the doctrine of
A.B.'s participation in the Northstar program cannot be considered
an "other cause" of A.B.'s disability.
However, we need not
apply the doctrine of ejusdem generis because
we conclude that, under the statute's plain language, A.B. was a
disabled child. See Freund v. Utah Power & Light Co.,
793 P.2d 362, 367 (Utah 1990) (stating that "the ejusdem
generis rule does not apply in the absence of ambiguity"). At
some time after his ulcer developed--and certainly after he
developed the peritonitis that killed him--A.B. was unable to
provide his own food, clothing, and shelter as a result of "physical
illness." Utah Code Ann. § 76-5-110(1)(c) (Supp. 1998). Thus, we
hold that under section 76-5-110's plain language, A.B. was a
Fisher argues that
he was not A.B.'s "caretaker" because, under the doctrine of
ejusdem generis, "the common trait contained in all the
other types of caretakers in the statute is legal obligation." We
disagree. First, ejusdem generis does not apply
when the language of the statute is unambiguous, as is the case with
section 76-5-110. See Freund v. Utah Power & Light Co.,
793 P.2d 362, 367 (Utah 1990). Second, the definition clearly
applies to Fisher. Fisher admitted that he was responsible for
A.B.'s physical well-being while A.B. was in the Primitive section
of the Northstar program. Thus, Fisher was an "other person having
under his care and custody" a disabled child.
interpretation of section 76-5-110's plain language, and viewing the
evidence presented at trial in a light most favorable to the jury's
verdict, we cannot say that the evidence "'is sufficiently
inconclusive or inherently improbable that reasonable minds must
have entertained a reasonable doubt that [Fisher] committed the
crime of which he . . . was convicted.'" State v. Gibson, 908
P.2d 352, 355 (Utah Ct. App. 1995) (quoting State v. Johnson,
821 P.2d 1150, 1156 (Utah 1992)).
II. Constitutionality of Section 76-5-110
Fisher makes the
bald assertion that section 76-5-110 is unconstitutionally vague,
but does not analyze the issue and makes only a tangential cite to
one case. Because Fisher failed to brief this argument adequately as
required by Rule 24(a)(9) of the Utah Rules of Appellate Procedure,
we decline to address it. See State v. Thomas, 961
P.2d 299, 305 (Utah 1998) (stating that Rule 24(a)(9) "requires not
just bald citation to authority but development of that authority
and reasoned analysis based on that authority").
III. Shondel Issues
Fisher argues that,
because A.B. was not a disabled child, the elements the State was
required to prove under section 76-5-110 are identical to the
elements of misdemeanor child abuse, Utah Code Ann. § 76-6-109(3)
(Supp. 1998). If Fisher's assertion were accurate, State v.
Shondel, 22 Utah 2d 343, 453 P.2d 146 (Utah 1969), would require
reducing Fisher's conviction to misdemeanor child abuse.
Our "review under
the Shondel rule 'focuses on the trial court's legal
conclusions, which we review under a correction-of-error standard,
according no particular deference to the trial court's ruling.'"
State v. Kent, 945 P.2d 145, 146 (Utah Ct. App. 1997) (quoting
State v. Vogt, 824 P.2d 455, 456 (Utah Ct. App. 1991)). The
Shondel rule provides that "where there is doubt or
uncertainty as to which of two punishments is applicable to an
offense[,] an accused is entitled to the benefit of the lesser."
Shondel, 453 P.2d at 148. Our inquiry focuses on "'whether the .
. . statutes at issue proscribe exactly the same conduct,
i.e., do they contain the same elements?'" Kent, 945
P.2d at 147 (quoting State v. Gomez, 722 P.2d 747, 749 (Utah
1986)). If the statutes do not require proof of the same elements,
the defendant may be charged under the statute carrying the more
severe sentence. See id.
We agree with the
State that the Shondel rule does not apply to this case. The
two statutes in question do not require proof of the same elements.(7)
The statute under which the State charged Fisher requires proof of
four elements: (1) that a caretaker (2) abuses or neglects (3) a
disabled (4) child. See Utah Code Ann. § 76-5-110(2) (Supp.
1998). In contrast, the elements of misdemeanor child abuse are (1)
that a person inflicts or, "having the care or custody of [a] child,
causes or permits another to inflict" (2) physical injury (3) upon a
child, with (4) either intentional, reckless, or negligent mens rea.
See Utah Code Ann. § 76-5-109(3) (Supp. 1998).
The abuse of a
disabled child statute requires proof of elements not required by
the misdemeanor child abuse statute: most significantly, the
"disabled child" element. Thus, the statutes are not "wholly
duplicative as to the elements of the crime," State v. Bryan,
709 P.2d 257, 263 (Utah 1985), and therefore the Shondel
doctrine does not apply to this case.
IV. Jury Unanimity
Fisher argues that
the jury unanimity rule was violated because the jury was asked
whether he abused A.B. between March 11 and March 31, and the jury
might have considered conduct occurring during Impact or during the
forty-eight hours when Fisher was on leave. The crux of Fisher's
argument is that the State argued "several theories" that were
legally insufficient and that we cannot know whether the jury based
its verdict on one of these "theories."
"'[T]he propriety of
a jury instruction presents a question of law'" which we review for
correctness. State v. Carlson, 934 P.2d 657, 659 (Utah Ct.
App. 1997) (quoting State v. Brooks, 833 P.2d 362, 363 (Utah
Ct. App. 1992)).
The jury unanimity
rule provides that "in a criminal case . . . a jury must be
unanimous on all elements of a criminal charge for the
conviction to stand." State v. Johnson, 821 P.2d 1150, 1159
(Utah 1991) (emphasis added); see Utah Const. art. I, § 10
("In criminal cases the verdict shall be unanimous."). However, a
defendant is not entitled to a unanimous verdict on the precise
manner in which the crime was committed, or by which of several
alternative methods or modes, or under which interpretation of the
evidence so long as there is substantial evidence to support each of
the methods, modes, or manners charged.
State v. Russell,
733 P.2d 162, 165 (Utah 1987).
In this case, Fisher
argues that (1) the forty-eight-hour Impact period, (2) the
forty-eight-hours when Fisher was on leave, and (3) the last
forty-eight-hours of A.B.'s life, when he was given food and
rudimentary medical attention, were "theories" of liability argued
by the State, and that the jury might have based its verdict on one
of these "theories."
We agree with the
State that Fisher's argument confuses days with theories. The State
alleged only one theory of the case: that Fisher's actions over a
twenty-day period cumulatively constituted abuse or neglect of a
disabled child. After a verdict was returned, the jury was polled
and each juror affirmed that he or she found Fisher guilty of the
offense charged--that is, of the elements of abuse or neglect of a
disabled child. Our cases do not require jury unanimity on the
factual question of which days within the period Fisher did, and
which days he did not, commit acts contributing to the abuse or
neglect of a disabled child. Hence, Fisher's right to a unanimous
jury verdict was not violated.
The evidence at
trial was sufficient to show that Fisher was a caretaker of a
disabled child, as those terms are used in section 76-5-110. We do
not reach the issue of section 76-5-110's constitutionality because
that issue was inadequately briefed. Further, because section
76-5-110 requires proof of an element--that the victim be a disabled
child--not required by section 76-5-109 (misdemeanor child abuse),
the Shondel doctrine is not implicated in this case. Finally,
the jury unanimity rule was not violated when the jury was
instructed to consider whether Fisher abused or neglected A.B.
during the period of March 11 to March 31.
affirm Fisher's conviction.
Norman H. Jackson, Judge
James Z. Davis,
Russell W. Bench, Judge
1. Duncan and
Hohenstein each pleaded guilty to negligent homicide regarding this
2. Each student was
given a hooded sweatshirt, three shirts, three pairs of cotton
pants, socks, boots, underwear, a cap, some handkerchiefs, lip balm,
and a water bottle.
A.B. did not
write in his journal after this day.
4. Henry and Jaggar
pleaded guilty to negligent homicide and operating a human services
program in violation of licensing standards in connection with
5. Costigan pleaded
guilty to negligent homicide regarding A.B.'s death.
6. Under the
doctrine of ejusdem generis ("of the same kind"),
"general terms in a statute should 'be given a meaning that is
restricted to a sense analogous to the [more] specific terms.'"
Field v. Boyer Co., L.C., 952 P.2d 1078, 1087 (Utah 1998)
(alteration in original) (quoting Nephi City v. Hansen, 779
P.2d 673, 675 (Utah 1989)).
7. Our criminal code
defines an "element of the offense" as "[t]he conduct, attendant
circumstances, or results of conduct proscribed, prohibited, or
forbidden in the definition of the offense; [and t]he culpable
mental state required." Utah Code Ann. § 76-1-501 (1995).