This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Nicole Ladonna Ring,
Hennepin County District Court
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent)
Robert C. Moilanen, Marc G. Kurzman, St. Anthony Main, 219 SE Main Street, Suite 403, Minneapolis, MN 55414 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Hanson, Judge, and Huspeni, Judge.
In seeking reversal of her conviction of criminal child neglect, appellant argues that the evidence is insufficient to prove she willfully deprived her child of health care, and that the trial court abused its discretion in failing to define “willful” in the jury instructions, failing to admit evidence of polygraph tests taken and passed by appellant, preventing the defense from calling a polygraph examiner, and excluding a videotape prepared by the defense expert witness. Appellant also argues that the cumulative impact of the trial court’s rulings deprived her of a fair trial and that the prosecutor committed misconduct. Because we conclude the evidence was insufficient, we reverse the conviction and do not reach the remaining issues.
On October 17, 2000, appellant Nicole Ring gave birth to Cassandra, the third child of the marriage of appellant and Timothy Ring.
On the night of November 27, 2000, appellant was ill with the flu (as the two older children had been previously) and slept on the couch on the first floor of the Rings’ home. Timothy took Cassandra to sleep in his bed on the second floor of their home. Timothy testified that sometime around 2:30 a.m. on November 28, 2000, he awoke to Cassandra’s crying; she had fallen to the hardwood floor between the bed and the bedroom wall. Timothy testified that he picked up Cassandra, comforted her and she soon stopped crying; he tried giving her a bottle because it was about her normal nighttime feeding time, but she refused it; when he started rocking her, she fell asleep. Timothy slept until 5:30 a.m., at which time he looked at Cassandra and she appeared to him to be “fine.”
Appellant testified that she slept through the incident, and awoke at approximately 5:40 a.m. Timothy, then downstairs preparing for work, told appellant that Cassandra had fallen to the floor during the night, but seemed “fine.” Appellant did not check on Cassandra at that time. She woke her two sons between 7:15 and 7:30 a.m., drove them to school about 8:45 a.m., and returned home about 9:30 a.m. Timothy (who had decided to stay home from work because he, too, was now ill) was on a first floor couch; Cassandra was upstairs crying. Appellant, believing Cassandra might be hungry, made her a bottle, and then went upstairs to bring Cassandra downstairs for feeding. Cassandra drank only “a little bit” of her bottle. While she was holding Cassandra, appellant felt a “soft spot” on Cassandra’s head above her left ear about “the size of the soft spot on the top of her head.” Appellant did not observe any swelling. By 10:00 a.m., within one-half hour of waking, Cassandra fell back asleep.
At around 11:00 a.m., Cassandra awoke and seemed to appellant to “be warm like she had a fever.” Appellant gave Cassandra some Motrin. At about 1:00 p.m., appellant began getting ready to leave at 2:00 p.m. for a previously scheduled doctor’s appointment for herself. Sometime during the next hour, she observed Cassandra as Timothy was giving her a bath. Appellant observed Cassandra squirming in the bathtub and noticed a “real slight swelling where that soft spot was above her ear.” Timothy also noticed a “bump” on Cassandra’s head and described the swelling as “like a spaghetti noodle,” “like a line.”
Appellant left for her pre-scheduled appointment at about 2:00 p.m. After bathing Cassandra, Timothy wrapped her in blankets, put her in his bed, and placed her head on an ice pack. Timothy slept most of the afternoon until appellant arrived home.
Appellant, having run errands after her doctor’s appointment, returned home at about 5:30 p.m. and found Cassandra sleeping with an ice pack wrapped in a towel. She noticed “swelling” in Cassandra’s left eye. Because Cassandra felt “really cold,” appellant removed the ice pack; she asked Timothy to call his mother, who had some training as a nursing assistant, for advice. Timothy’s mother was reached about 6:00 p.m. Appellant explained about the swelling on Cassandra’s head, but did not mention the fall. Timothy’s mother told appellant to “keep an eye” on the swelling and to apply ice packs. Because ice packs had already been tried, appellant did not apply any additional ice.
Around 6:15 p.m., appellant checked on Cassandra and found that her breathing had become raspy. Appellant decided to call the doctor.
Appellant testified that she told the nurse to whom she spoke that Cassandra had “raspy breathing” and a “slight bump that went into her eye, it had moved over into her eye.” The nurse testified that appellant told her that Cassandra’s eye did not appear to be normal, that it looked “goopy.” Following further conversation, the nurse tentatively determined that Cassandra had conjunctivitis. The nurse also asked questions about general demeanor, eating, sleeping, fever, and any indications of pain. Appellant replied that the baby was behaving normally; she did not tell the nurse that Cassandra had fallen out of bed, nor, according to the nurse, tell her about the swelling or soft spot on Cassandra’s head.
Appellant and Cassandra left home at 7:45 p.m., drove to the Minnetonka office of her pediatrician, Southdale Pediatrics, and discovered that it was closed. Appellant then took Cassandra to South Lake Pediatrics, another pediatric facility that was located in the same building. Appellant told a certified medical assistant that Cassandra “woke up with a lump on the side of her head and throughout the day it had grown and now her eye was swollen shut.” The medical assistant determined that Cassandra was pale, cold, and unresponsive. A temperature reading could not be obtained because the thermometer was “going backwards.” A physician was called into the examining room and testified at trial that appellant had told her she had brought Cassandra in because she had been more sleepy than usual that day, had had a swelling on the back of her head all day that had been iced, had taken only about two ounces of milk, and had been lethargic and difficult to arouse. The physician testified further that appellant appeared to be calm and did not seem to appreciate the extent of the injury Cassandra had suffered. According to the physician, appellant only appeared to become concerned when told that Cassandra needed to be taken immediately to the hospital.
The physician testified that when she first looked at the swelling, it appeared as “a slight swelling. Nothing that unusual.” She then observed that Cassandra was cold and unconscious, that her left eye was bruised and swollen shut, that her extremities were stiff, and that she had a bruise on her left knee. The stiff extremities suggested a central nervous system or brain injury; intercranial bleeding and skull fracture were suspected, but could not be confirmed without an x-ray. The physician testified that, upon being asked if Cassandra had been shaken or dropped, Nicole replied that she had not.
Cassandra’s temperature was measured at 84 degrees; blood pressure measurements could not be obtained. Cassandra’s pulse was slow and her breathing was raspy and labored. She was largely unresponsive to stimuli. The physician testified that in her experience bruising is usually the only result of a child falling from bed; that injuries as severe as Cassandra’s were seen only from “very significant automobile accident[s] * * * [or] abuse cases.” But that injuries as severe as Cassandra’s could not be ruled out as resulting from a fall from bed.
Emergency responders were summoned, and Cassandra was taken to the hospital. The physician reported to the responding police that she suspected abuse. Upon Cassandra’s arrival at the hospital, medical personnel noticed a large left parietal contusion, swelling of the left eyelid, red-purple discoloration on the left anterior of the front of the knee, lethargy, and unconsciousness. A treating physician testified that the injuries were more severe than what would have been expected from a fall like the one described. Once stabilized, Cassandra was transferred to Minneapolis Children’s Hospital, where she arrived about 10:30 p.m. She was diagnosed with a skull fracture, a subdural hematoma, a broken tibia, and brain swelling. She also suffered from disseminated intravascular coagulopathy (DIC), a condition that prevented her blood from clotting and increased swelling.
Pursuant to protocol, personnel at Children’s Hospital reported suspected child abuse to Midwest Children’s Resource Center. A nurse from the Center arrived at Children’s Hospital and spoke with appellant and Timothy separately. In filing her subsequent report, the nurse did not check the box on the abuse form that indicated medical neglect, delay in seeking treatment, or serious non-compliance, but she testified that she concluded that the trauma was “inflicted trauma.” At trial she reviewed photographs of Cassandra’s eye that had been taken by police earlier in the evening, and compared them to photographs she had taken at approximately 2:30 a.m. She testified that there was less swelling on Cassandra’s eye in the earlier photographs.
The physician who first treated Cassandra when she arrived at Children’s Hospital performed numerous tests. Cassandra’s hemoglobin was found to be about one-quarter of that normal for a child her age. The physician testified that had the hemoglobin dropped so far in a short period of time Cassandra would have died, but that the body can compensate when the drop occurs over a longer period of time, which is what occurred in Cassandra’s case. He believed from his experience that infants would suffer only a linear skull fracture, at most, from a fall of four feet or less to a hard floor, and that such a fall would not create an underlying brain injury. He testified that there had been “an extravagant delay” in getting Cassandra treatment after her injury, but that the flu could have caused her to have decreased appetite and become lethargic.
Cassandra underwent surgery. The operating neurosurgeon testified that the nature of Cassandra’s skull fracture indicated that tremendous force was required to create the injury; more force than would be caused by falling from a bed to a hard floor. The most serious injury was the swelling of the brain. The physician repaired the dura and removed a portion of the left parietal bone. He testified that when the dura is torn, blood can escape into the area between the skull and scalp, and there was evidence of such bleeding at 9:30 a.m. when Nicole noticed the lump on Cassandra’s head. The neurosurgeon was unable to estimate when the DIC began; whether at the time of injury or at any time thereafter, including shortly before she arrived at Children’s Hospital; he indicated that onset could be rapid. He further testified that he had seen injuries similar to Cassandra’s only in cases where a child was run over by a car, had fallen from a three-story window, or had been hit with a baseball bat.
None of the medical experts testified that the swelling or other outward signs of Cassandra’s injuries would have appeared more severe than as noted by Nicole in her description of Cassandra at 2:00 p.m. Notably, the physician who first treated Cassandra upon her arrival at Children’s Hospital testified that there was no way he could have determined when the DIC condition, which caused most of the swelling, and the blood problems began. He also testified that onset could be rapid.
The Hennepin County Attorney’s Office filed a joint complaint charging appellant with criminal neglect, in violation of Minn. Stat. § 609.378, subd. 1(a)(1) (2000), and charging Timothy Ring with first-degree assault, in violation of Minn. Stat. §§ 609.221, subd. 1, .101, subd. 2 (2000). The state did not charge Timothy with criminal neglect. The state subsequently filed an amended complaint alleging that appellant was an accomplice after the fact to Timothy’s assault, in violation of Minn. Stat. § 609.495 (2000). That charge was later dismissed by the district court for lack of probable cause. Some evidence showed that the prosecutor decided to charge appellant with assault as well, until either appellant or Timothy gave a statement about the abuse.
Before trial, the court granted appellant’s motion in limine to prohibit the state from raising the issue of an extramarital affair appellant had had seven years before the incident and denied her motion to admit evidence of a polygraph examination that she had taken and passed.
A three-week consolidated jury trial was held on the charges against appellant and Timothy. The state alleged that Timothy had abused Cassandra and caused her injuries. Testimony presented at trial centered primarily on proving the allegations of abuse against Timothy. The state’s medical and expert testimony was concentrated on the issue of the extent of Cassandra’s injuries and whether those injuries could have been caused by a fall from a bed. The state’s experts all testified that Cassandra’s injuries were sustained by severe trauma and from abuse. Several experts testified exclusively on the issue of the severity of the injury to Cassandra’s head and her broken tibia, and on the relationship between those two conditions and the theory that child abuse had occurred. Medical and child abuse witnesses gave virtually no testimony that was relevant to the issues involving the charges against appellant.
During deliberation, the jury asked: “What is the definition of ‘Willful?’” In its decision on the motion for a new trial, the trial court noted:
[N]either counsel asked for a definition to be given and the jury was told to rely on the instructions as they had been given orally and in the written form which they had in the jury room with them.
The jury acquitted Timothy of assault in the first degree, but found appellant guilty of criminal neglect. The district court denied appellant’s motion for a new trial. This appeal followed.
Appellant argues that the evidence presented at trial was insufficient to support the jury’s verdict. In considering a claim of insufficient evidence, our review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jury to reach the verdict it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could have reasonably concluded the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). While circumstantial evidence warrants stricter scrutiny, it is entitled to the same weight as direct evidence. State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999). The jury is in the best position to evaluate circumstantial evidence, and its verdict is entitled to due deference. Webb, 440 N.W.2d at 430.
A parent is guilty of neglect of a child when that parent
willfully deprives a child of necessary * * * health care * * * appropriate to the child’s age, when the parent * * * is reasonably able to make the necessary provisions and the deprivation harms or is likely to substantially harm the child’s physical, mental, or emotional health.
Minn. Stat. § 609.378, subd. 1(a)(1) (2000). See also Minn. Stat. § 609.02, subd. 7a (2000) (“substantial bodily harm” means “bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or which causes a fracture of any bodily member.”).
Appellant argues that the state did not prove that she willfully deprived Cassandra of necessary health care. Specifically, she argues that no witness definitively stated that the delay in seeking medical treatment caused any additional injury to Cassandra. Appellant also asserts that no evidence was presented that she knew that Cassandra had fallen on her head or that she had fallen on the wood floor, that the only evidence was that she knew of a fall, and that Cassandra was “fine” according to Timothy. Appellant also contends that Cassandra’s injury was internal, only diagnosable through the use of CT scans, x-rays, or an MRI, and on the morning of November 28, 2000, there was no bruising, swelling, vomiting, or significant change in Cassandra’s behavior and that any such changes occurred later in the day when appellant was no longer caring for Cassandra. Appellant also urges that she did not believe that the short-distance fall seriously injured Cassandra, that this belief was supported by the testimony of a state expert who testified that the type of injury Cassandra suffered could not have been caused by a three-foot fall to a hardwood floor, and that a fall to the floor was the only type of injury that appellant had thought Cassandra had sustained.
Timothy told appellant in the early morning about the fall, but also told her that Cassandra was “fine.” Appellant points to her early day activities of taking her other children to school, feeding Cassandra without an awareness of a medical emergency, and going to her own pre-scheduled doctor’s appointment. Three of the state’s witnesses, medical providers at the urgent care facility, testified that appellant was “surprised” or did not appreciate the extent of Cassandra’s injury when she arrived at the urgent care facility. In addition, appellant argues that when she returned home about 5:30 p.m., she realized that Cassandra’s condition had worsened and immediately sought medical care, first through contact with her mother-in-law and then by taking Cassandra to an urgent care clinic.
Appellant also asserts there was insufficient evidence for the jury to conclude that “willful” deprivation occurred, because there was no evidence to show that she knew, prior to arranging for and obtaining medical assistance, that Cassandra had suffered an injury requiring medical attention.
Indeed, there is much that concerns us regarding the trial proceedings conducted in this case of tragic injury to a baby. And we are acutely aware that we must test our concerns against the knowledge that a jury returned a verdict of guilty and a trial court declined to set aside that verdict. We nonetheless are left with a firm conviction that appellant was not proven guilty beyond a reasonable doubt of the charge brought against her and that the verdict must be set aside.
This difficult case was made more difficult by the manner in which it was charged and tried. The conviction of appellant appears to us to have been a collateral (and arguably even an unintended) consequence of a prosecution that focused on a completely different theory of the case. There is evidence that appellant was charged with the offense of which she was found guilty as part of a strategy to pressure her to provide support for the state’s theory that the injury to Cassandra was caused, not from a fall from the bed, but from an assault perpetrated against her by Timothy. In fact, the record is clear that the state attempted to amend the charge against appellant to one consistent with this theory, alleging that appellant was an accomplice after the fact to Timothy’s assault upon Cassandra by engaging in a cover-up. That charge was dismissed upon the determination of the district court that there was no probable cause to support it.
The state, at trial, continued to focus on the charge of assault in the first degree against Timothy, while allowing the arguably ill-fitting charge of criminal neglect against appellant to be drawn along. We are not unaware of the wide-ranging prosecutorial discretion present here, and we respect the authority of the prosecutor to go forward to trial on a charge that has survived a probable cause assessment. Nonetheless, the burden on the prosecution is to prove such a charge beyond a reasonable doubt.
Because of the unusual juxtaposition of charges, the state offered evidence against Timothy that contradicted the charge against appellant. For example, in an effort to prove that Cassandra’s injuries were caused by an assault perpetrated by Timothy, state witnesses testified that the injuries presented by Cassandra could not have resulted from a fall from a bed. But does not this evidence contradict the state’s argument that appellant should have known that Cassandra’s injuries required immediate medical attention, when the only evidence of appellant’s knowledge of the injury was that Cassandra had fallen from the bed? We conclude that the state’s own experts’ testimony disproved the argument that knowledge of the fall should have alerted appellant to the possibility of serious injury. Knowledge of a fall, according to testimony, would not have alerted even the medical experts to that possibility.
To further complicate matters, the jury determined that the prosecution had not proved beyond a reasonable doubt the charge of first-degree assault against Timothy. For reasons that are not obvious from our review of the record, the state did not charge Timothy with the lesser offense of child neglect, even though Timothy was the primary caretaker of Cassandra for the majority of the time after the fall. Again, we are aware of the discretion vested in prosecutors regarding what offenses to charge against which defendants. However, in this case it can be argued that the only “middle ground” available to the jury, after participating in three weeks of a trial involving serious injuries to a baby, injuries resulting in tragic consequences, was the lesser charge against appellant.
We are left with the belief that there was a serious risk that the jury may have erroneously imposed on appellant some form of vicarious responsibility for the acts and omissions of Timothy. Cf. State v. Guminga, 395 N.W.2d 344, 346-47, 349 (Minn. 1986) (holding that due process prohibited criminal prosecution of restaurant owner for employee’s act of serving liquor to minor even though prosecution based on vicarious liability explicitly permitted by statute; court held “in Minnesota, no one can be convicted of a crime punishable by imprisonment for an act he did not commit, did not have knowledge of, or give expressed or implied consent to the commission thereof”); Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 3.2(f), at 282 (1986) (general principle of criminal law provides that one is not criminally liable for how someone else acts, unless person directs, encourages, or aids the other).
Under the undisputed evidence, Timothy and appellant took alternating responsibility for Cassandra as follows:
2:30 a.m. – 9:30 a.m.: For this seven-hour period immediately following Cassandra’s fall, she was under the exclusive care of Timothy, while appellant was sleeping in a separate room on a lower level of the home or was supervising the older children through breakfast and taking them to school. Timothy, in fact, had Cassandra with him in bed, under his immediate supervision. Unless the law can be interpreted and strained to place a greater duty on a mother than on a father, which clearly is not apparent from the statute under which appellant was convicted, appellant had the right to assume that Timothy was exercising his parental duties when he said Cassandra was “fine.” The state did not argue that Timothy should have sought health care, although in its discretion, the prosecution could have charged Timothy with an offense wherein his obligation to do so would have been tested.
9:30 a.m. – 1:00 p.m.: During this three and one-half hour period, appellant was the primary parent. She had been told by Timothy that Cassandra had fallen from the bed but was “fine.” While it was perhaps somewhat unusual that Cassandra did not take a full feeding and went back to sleep, this behavior would have been consistent with the flu in the home. Appellant observed a soft spot, but no swelling. When Cassandra seemed warm at about 11:00 a.m., appellant gave her some Motrin. By 1:00 p.m., appellant had turned the primary care of Cassandra back to Timothy.
1:00 p.m. – 5:30 p.m.: During this four and one-half hour period, Timothy gave Cassandra a bath. Appellant was still at home and observed the bath, noticing that Cassandra was active and responding. Appellant then left the home by 2:00 p.m. for a pre-arranged medical appointment and a series of errands. After 2:00 p.m., Timothy was home alone with Cassandra. He had continuing care and observation of her, but did not determine that it was appropriate to seek medical attention, and, in fact, slept. Again, the state did not charge Timothy with child neglect, and thus did not argue that Timothy should have sought medical attention for Cassandra during this period.
5:30 p.m. – 7:45 p.m.: During this two and one-quarter hour period, appellant returned home and immediately began a course of action that led to medical attention for Cassandra. Appellant first sought advice from her mother-in-law, who had some medical training. She then called the urgent care clinic and sought further medical advice. She made an appointment. While appellant was confused about the location of the clinic where the appointment was to be held, there is no reason to believe that her confusion was intentional or that her actions were designed to delay health care. In fact, there is no theory of the case that would explain any motive for appellant to delay actually obtaining medical attention once she had made arrangements to provide that attention for Cassandra.
Evidence relied upon by the state to prove appellant’s guilt was primarily circumstantial. Again, we are not unmindful that we must view such evidence in the light most favorable to the conviction. The supreme court has consistently held, however, that a conviction based upon circumstantial evidence requires stricter scrutiny, requiring that the circumstances proved must be inconsistent with the rational hypothesis of innocence. State v. Walen, 563 N.W.2d 742, 750 (Minn. 1997); see also State v. Bauer, 598 N.W.2d 352 (Minn. 1999).
Guilt for criminal child neglect requires proof of two elements: (1) that the parent “willfully deprives a child of necessary * * * health care,” and (2) that the “deprivation harms or is likely to substantially harm the child’s physical, mental, or emotional health.” Minn. Stat. § 609.378, subd. 1(a)(1). Because the state focused on the proof of assault upon Cassandra by Timothy, which we believe was at odds with proof of the elements of criminal child neglect by appellant, the record at the close of the state’s case had serious gaps, which, ultimately, left the jury with inadequate evidence of either element of the crime of which appellant now stands convicted.
First, it is undisputed that appellant did not, ultimately, deprive Cassandra of health care. To the contrary, she is the only parent who sought and obtained that care, at such time as it became apparent to her that health care was necessary.
Second, because appellant did obtain health care for Cassandra, the only basis for finding the first element of criminal child neglect would be that her delay in obtaining that care constituted “deprivation” within the meaning of the statute; a statute that does not explicitly make delay an element of the offense. Assuming that “delay” can constitute deprivation, any evidence of deprivation due to that delay in this case is insufficient.
Here, there was a lack of proof that the delay caused or was likely to cause substantial harm to Cassandra. This lack of proof, we believe, resulted from the state’s focus on the theory that Timothy had committed assault against Cassandra. State experts testified that Cassandra’s injuries were intentionally caused by an assault involving a “crush injury.” Under this theory, the harm would have occurred at 2:30 a.m., long before appellant had any knowledge of any relevant facts. One state expert testified that there was one “golden hour” after the injury was sustained when there would be the best opportunity to reduce the damage. But that expert could not testify with precision that treatment, even within the first few minutes after injury, would have resulted in less harm. In sum, there was no expert testimony causally relating any delay by appellant to any specific harm to Cassandra. See Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757, 762 (Minn. 1998) (“Expert opinion is required to prove causation if the issue is outside the realm of common knowledge * * * .”); Walstad v. Univ. of Minn. Hosps., 442 F.2d 634, 639 (8th Cir. 1971) (“when the causal relation issue is not one within the common knowledge of [laypeople], causation in fact cannot be determined without expert testimony.”).
Third, even if there had been evidence on the second element supporting the conclusion that the delay in obtaining health care caused or aggravated some part of Cassandra’s harm, the first element of the offense with which she was charged – willfully depriving a child of necessary health care – would require evidence that appellant knew that Cassandra suffered an injury that necessitated medical attention. However “willfully” is ultimately defined, at a minimum it requires knowledge that there has been an injury, and that the injury necessitates health care, before a parent can be held to have intentionally, purposely, or by design deprived a child of that health care. See State v. Cyrette, 636 N.W.2d 343, 348 (Minn. App. 2001), review denied (Minn. Feb. 19, 2002).
The only evidence of appellant’s knowledge was that Timothy had told her that Cassandra had fallen out of bed and that he believed her to be “fine.” Because Cassandra’s injuries were internal, any determination of their extent or severity was beyond the competence of appellant. Appellant observed a soft spot on Cassandra’s head in the morning. The unrefuted evidence, however, was that there was no bruising, swelling, or vomiting that might have been indicative of serious injury. The state’s own expert witnesses, in an effort to prove that the injuries to Cassandra did not occur as a result of a short fall, testified affirmatively that a short fall could not cause serious injury. Thus, the state’s own witnesses support the conclusion that appellant had no reason to believe, from the report of a short fall, that Cassandra required health care. Further, the symptoms observed by appellant were consistent with the flu in the household, thereby masking any symptoms that may otherwise have been associated with the fall described to her. Each of the state’s expert witnesses who observed appellant the evening she arrived with Cassandra to seek medical attention agreed that appellant was “surprised” and did not appreciate the severity of the injuries to Cassandra. Thus, we conclude that the evidence presented by the state was consistent with a rational hypothesis of innocence and was insufficient to support a verdict of guilty.
A final observation: While the statute under which appellant was charged requires that an accused parent have “willfully deprived” a child of necessary health care, neither the statute nor the jury instructions define “willfully.”
Appellant’s several requests that the trial court define “willfully” were denied. Thus, both the state and the defense found it necessary to attempt, during final argument, to define the word. Such attempts, we believe, recognized that the definition of “willfully” was not commonly known or self-evident. Both the prosecutor and the defense attorney agreed that “willfully” required at least a threshold level of knowledge of a serious injury. Most significantly, during deliberations the jury submitted a question to the trial court which asked specifically “what is the definition of willful?” No answer was given; instead, the trial court instructed the jurors to deliberate based on the instructions that had been given. This “answer” was tantamount, we believe, to instructing the jurors to use their own understanding of “willful.”
This court has recently had an opportunity to consider the meaning of “willfully” in Cyrette where we held that in Minn. Stat. § 609.378, the term “willfully” means “intentionally.” Id. at 347. In 1963, the advisory committee revising Minnesota’s criminal code remarked that a purpose of the statutory revisions was to have criminal statutes
state more clearly than do present statutes the particular criminal intent or purpose required for each particular crime. Terms in the present statutes such as “willful,” * * * have produced much confusion and uncertainty as to what mental state is intended. Throughout the proposed criminal code, the word “intentionally” or “with intent to” has been used.
Id. (quoting Minn. Stat. Ann. § 609.02, advisory comm. cmt. (West 1963)). Unfortunately, when the child-neglect statute was adopted in 1983, that history was forgotten and the word “willfully” was reinserted in the law. Id. at 348.
There are abundant definitions of “willful” in the law. In Cyrette, we noted that in tort laws, the term “willfully” means “an aggravated form of negligence.” Id. (quoting Prosser & Keaton on Torts, 212 (5th ed. 1984)). We stated that in the negligence context,
[w]illfully applies to conduct that is negligent, but that is so far from a proper state of mind that it is treated in many respects as if it were so intended. The most common meaning assigned to willfully in the tort context is that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences.
Id. (citations and quotations omitted).
Here, the potential for jury confusion was high because the bulk of the evidence was not directed to the charge against appellant; the dispute over what caused Cassandra’s injuries complicated the question of what appellant knew; and the failure to charge Timothy with child neglect presented the potential that the jury would mistakenly hold appellant responsible for the acts or omissions of Timothy. The jury, in seeking a definition of “willful,” arguably sought assistance on the question of what it needed to determine in order to find appellant guilty of child neglect. This court should not conjecture as to what the jury might have decided had it been told that “willful” meant “intentional.” We do not need to conjecture, however, to reach the conclusion that the evidence before the jury was insufficient to convict.
In view of our decision that there was insufficient evidence to convict appellant of child neglect, we do not reach the additional issues raised in her appeal.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 In contrast, appellant testified that when Cassandra was two to three weeks old, she started sleeping through the night.
 There is some confusion about the procedure followed in contacting medical personnel. Appellant testified that she called the number on the Southdale Pediatrics pamphlet for the Minnetonka office and that the pamphlet indicated that office was open until 9:00 p.m. At trial, however, testimony from a triage nurse indicated that at 6:30 the Minnetonka office would have been closed, and appellant would have been advised by recording to contact the Edina office. Appellant ultimately spoke with a triage nurse at Southdale Pediatrics’ Edina office.
 The triage nurse conceded that the head trauma protocol she was supplied with did not indicate that she should refer a child to the emergency room or call emergency services in cases where an infant falls without considerable impact. The protocols also do not mandate that a child be seen immediately even if some neurological checks were positive. The head trauma protocol only states that emergency services should be called if the infant is having a seizure, sustained a neck injury, or the child is not responsive or awakens with great difficulty. The nurse testified, however, that she would have abandoned protocol in Cassandra’s instance, had she been told what was actually happening, and called emergency services.
 Testimony is in conflict on this point. Appellant testified that upon continued questioning she stated that Cassandra had fallen out of bed the previous night. The physician testified, however, that appellant did not say Cassandra had fallen off the bed until after appellant called Timothy to report that Cassandra was very sick and then told medical personnel that Timothy mentioned Cassandra’s fall from bed.
 Minn. R. Crim. P. 17.03, subd. 2(1), provides that “[w]hen two or more defendants are jointly charged with a felony, they may be tried separately or jointly in the discretion of the court.” In making that determination, “the court shall consider the nature of the offense charged, the impact on the victim, the potential prejudice to the defendant, and the interests of justice.” Id. We look to whether the defendants suffered any substantial prejudice as a result of being joined for trial. State v. Hathway, 379 N.W.2d 498, 502 (Minn. 1985). Substantial prejudice may exist when the defenses were inconsistent or when the defendants seek to shift blame to one another. State v. DeVerney, 592 N.W.2d 837, 842 (Minn. 1999). There was no allegation of error in the joint trial in this case.
 For example, testimony was elicited that addressed whether Timothy was frustrated with his situation and the new baby and whether Cassandra was planned, questioned the family’s financial situation, including recently missed debt payments, and questioned whether appellant had stopped taking birth control without Timothy’s knowledge.