Argued and submitted on September 11, 2012.
Clackamas County Circuit Court CR0801358, CR0801359. Steven L. Maurer, Judge.
Wayne Mackeson argued the cause for appellants. With him on the brief was Steve Lindsey.
Cecil A. Reniche-Smith, Assistant Attorney General, argued the cause for respondent. With her on the brief was John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.
SCHUMAN, P. J.
Defendants were convicted of criminally negligent homicide, ORS 163.145, after their 16-year-old son died from an extended illness during which defendants, in accord with their religious beliefs, did not provide any conventional forms of medical care. The jury found that defendants failed to be aware of a substantial and unjustifiable risk that the child would die and that the failure was "a gross deviation from the standard of care that a reasonable person would observe in the situation." ORS 161.085(10) (defining criminal negligence). On appeal, defendants argue that, for several reasons, the indictment did not state a crime; that the court's jury instructions were prejudicially erroneous in several respects; and that the court erroneously denied their motion to exclude evidence regarding the death of defendants' granddaughter, who also died after not receiving needed medical treatment. We affirm.
Although the record in this case is lengthy, the relevant facts on appeal are few. Defendants' son, Neil, had a rare congenital abnormality that caused the progressive loss of kidney function. The abnormality began to manifest, at the latest, in March 2008. Thereafter, Neil became increasingly weak, unable to hold down food, and unable to breathe freely. Because of their religious beliefs, and because Neil (who shared those beliefs) did not want to be medically treated, the family relied on what is commonly called "faith healing"--prayer, the laying on of hands, and anointment with oil. Neil rallied on one or two occasions but, on June 17, 2008, he died from complications of kidney failure. Medical intervention in the week before Neil died would have saved his life.
Defendants were each tried for criminally negligent homicide. ORS 163.145. The indictments charged each with causing the death of Neil "by failing to provide adequate medical care to [him], in violation of the duty of a parent." Defendants unsuccessfully demurred to the indictment, and a nine-day trial ensued. The jury returned guilty verdicts. Defendants now appeal.
A precise and complete definition of "criminal negligence" as it applies to this case will clarify several of the issues on appeal. A person commits criminally negligent homicide "when, with criminal negligence, the person causes the death of another person." ORS 163.145. "Criminal negligence, " in turn, is defined in ORS 161.085(10):
"'Criminal negligence' or 'criminally negligent, ' when used with respect to a result or to a circumstance described by a statute defining an offense, 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 person would observe in the situation."
Further, like all criminal offenses, criminally negligent homicide may be based on a person's "omission to perform an act which the person is capable of performing, " ORS 161.095(1), if the act is one "the performance of which is required by law, " ORS 161.085(3).
Thus, to be guilty of criminally negligent homicide in a case like this, a person must (1) have a legal obligation to provide life-sustaining medical care to the person's child, (2) have the capability to perform that act, (3) fail to be aware that not performing the act creates a substantial and unjustifiable risk that the child will die, such failure of awareness being a gross deviation from the standard of care that a reasonable person would observe in the situation, and (4) not act, resulting in (5) the child's death. The first element--the existence of a parent's legal obligation to provide life-sustaining medical care to his or her child--is a question of law. The second, fourth, and fifth elements are undisputed: Defendants were capable of providing medical care, did not do so, and that failure caused Neil's death. The questions presented on appeal, then, cluster around three issues: first, whether the criminal negligence statute as charged in this case imposed, or constitutionally could impose, an obligation on defendants to provide life-sustaining medical care for Neil; second, whether the jury was properly instructed as to what facts it needed to find in order to return a guilty verdict; and third, whether the jury might have been prejudiced by hearing inadmissible evidence.
Defendants raised the first cluster of arguments by demurrer, which the court denied. Those arguments, in essence, reduce to two propositions: First, ORS 163.145 as applied in this case does not state a crime because the gravamen of the offense as charged in the indictment is an unjustifiable failure to perform a duty "required by law, " and the duty to provide needed medical care to one's child is not "required by law"; and second, if the indictment does state a crime, it violates constitutional guarantees of religious freedom.
The issues raised by these arguments do not come to us on a blank slate. In State v. Hays, 155 Or.App. 41, 964 P.2d 1042, rev den, 328 Or 40 (1998), the defendant, following the teachings of his religion, relied on faith healing instead of medical care to treat his son's leukemia. When the son consequently died, the defendant was convicted of criminally negligent homicide. Id. at 43. On appeal, he raised statutory and constitutional challenges to the prosecution. We affirmed the conviction, and in the process reached several conclusions that bear on the disposition of this case. We held that a parent has an "absolute" duty to "provide needed medical care to a child, " subject only to legislatively established exceptions to accommodate the parent's belief in "treatment by spiritual means." Id. at 47 n 3. The legislature, we observed, had enacted a statute, ORS 163.206(4), relieving a parent of his or her duty to provide needed medical care for purposes of prosecution for criminal mistreatment, but not with respect to prosecutions for criminal negligence. Id. at 47. Read together, we reasoned, the criminal negligence and criminal mistreatment statutes produce the following rule:
"[T]he statutes permit a parent to treat a child by prayer or other spiritual means so long as the illness is not life threatening. However, once a reasonable person should know that there is a substantial risk that the child will die without medical care, the parent must provide that care, or allow it to be ...