This opinion will be unpublished and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

CX-01-2241

 

 

State of Minnesota,

Respondent,

 

vs.

 

Heather Amanda McMahon,

Appellant.

 

 

Filed October 15, 2002

Affirmed

Anderson, Judge

 

Swift County District Court

File No. K100138

 

Mike Hatch, Attorney General, Tracy L. Perzel, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

Robin W. Finke, Swift County Attorney, 114-14th Street North, Benson, MN  56215 (for respondent)

 

John Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Anderson, Presiding Judge, Klaphake, Judge, and Willis, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

G. BARRY ANDERSON, Judge

 

A jury convicted appellant of five counts of criminal vehicular operation, including one count of criminal vehicular operation resulting in death to an unborn child.  The district court sentenced appellant to a presumptive sentence of 48 months in prison.  Appellant argues the district court erred by excluding evidence of alleged intervening, superseding causes of the unborn child’s death.  Appellant also argues the district court abused its discretion by denying her motion for downward durational and dispositional sentencing departures.  We affirm.

FACTS

 

            On December 10, 1999, appellant and four friends were involved in a one-vehicle accident.  Appellant was driving the vehicle in excess of the posted speed limit and was unable to negotiate a 45 mile-per-hour curve in the road.  M.E.M., a 16-year-old friend of appellant’s who was nine-months pregnant, was ejected from the vehicle.  Emergency personnel transported M.E.M. to a local hospital and doctors began to monitor her unborn child’s heart rate.  Initially, the unborn child’s heart rate was stable at approximately 120 beats per minute; later it decreased to approximately 80 to 90 beats per minute, which indicated that the unborn child was experiencing stress.

            Hospital personnel decided to transport M.E.M. by ambulance to Rice Memorial Hospital in Willmar.  En route, the unborn child’s cardiac activity ceased; on arrival at Rice Memorial, hospital personnel determined the child had died.  An autopsy report concluded the cause of death appeared to be placental abruption[1] associated with retroplacental hematoma.  The report concluded that the placental abruption was most likely caused by the injuries M.E.M. sustained in the accident.  The report, however, also stated that other causes of retroplacental hematoma include hypertension and pre-eclampsia, although no anatomical findings supported either of these causes.

            The state charged appellant with one count of criminal vehicular operation resulting in death to an unborn child, a violation of Minn. Stat. § 609.21, subd. 3(1) (1998), and four other counts of varying degrees of criminal vehicular operation, violations of Minn. Stat. § 609.21, subds. 2(1), 2a(1), 2b(1) (1998).  Before trial, the defense retained Dr. Athi Narayan, a neonatalist, who examined the medical records associated with M.E.M.’s treatment after the accident.  Narayan’s pretrial report concluded the child’s death was “secondary to abruption of the placenta” and “[t]he most likely cause of the abruption was the automobile accident with or without blunt injury to the uterine area.”   It also concluded, however, that

there was adequate time available in [the] hospital setting to save the infant if an emergency C-section would have been performed at [the local hospital] or if [M.E.M.] was taken to a facility where such capabilities exist.

 

It further concluded that the local hospital should have employed an external fetal monitor to constantly monitor the child’s heart rate and, because hospital personnel failed to employ constant fetal monitoring and failed to consult with the hospital’s OB/GYN unit, they “did not use the time beneficially for the fetus.”  The report acknowledged, however, that notwithstanding the hospital’s failure to take these specific preventative measures, “the proximate cause of fetal demise was the automobile accident.”

The state moved to exclude the testimony of Dr. Narayan and the district court granted that motion.  At trial, several witnesses testified concerning appellant’s driving on the night of the accident.[2]  Dr. Sharon Banister confirmed the conclusions of her autopsy report.[3]  At the close of trial, the court instructed the jury that it had to find beyond a reasonable doubt that “the defendant caused the death of [the child] by operating a motor vehicle in a grossly negligent manner.”  The district court had previously denied appellant’s request to instruct the jury that the prosecution must prove both causation and the absence of any superseding cause beyond a reasonable doubt.  The jury found appellant guilty of all five charges.  The district court denied appellant’s motion for a new trial, sentenced her to 48 months in prison, and this appeal followed. 

D E C I S I O N

 

I.          Intervening, Superseding Cause

Appellant argues the district court erred by excluding the testimony of Dr. Naryan concerning M.E.M.’s treatment at the local hospital.  She argues his testimony would have been relevant to determine who ultimately caused the death of M.E.M.’s child, and that by denying her request to present Dr. Naryan’s testimony, the court denied her constitutional right to present a defense. 

Evidence is relevant if it tends to make the existence of a material fact more or less probable than it would be without the evidence.  Minn. R. Evid. 401; State v. Ture, 632 N.W.2d 621, 631 (Minn. 2001).  Moreover, a criminal defendant has a constitutional right to present a defense that complies with the rules of evidence.  State v. Buchanan, 431 N.W.2d 542, 550 (Minn. 1988) (district court must balance a defendant’s constitutional right to introduce testimony against the relevancy requirements of the rules of evidence).    

But this court largely defers to a district court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989); State v. Iten, 401 N.W.2d 127, 129 (Minn. App. 1987) (stating that a district court has “broad discretion to exclude evidence on the basis of relevancy” (citation omitted)). 

Thus, even when a defendant alleges that his inability to present a defense violates his constitutional rights, evidentiary questions are reviewed for abuse of discretion.

 

State v. Henderson, 620 N.W.2d 688, 698 (Minn. 2001) (citation omitted).

Consequently, the exclusion of expert testimony is within the broad discretion afforded a district court; decisions concerning “materiality, foundation, remoteness, relevancy, or the cumulative nature of the evidence may be reversed only if the trial court clearly abused its discretion.”  State v. Ritt, 599 N.W.2d 802, 810 (Minn. 1999) (quotation omitted).

To convict a person of criminal vehicular operation the state must prove beyond a reasonable doubt that the defendant’s conduct was a “substantial causal factor” in causing injury or death.  Minn. Stat. § 609.21, subd. 3(1); State v. Dunagan, 521 N.W.2d 355, 356 (Minn. 1994); State v. Sutherlin, 396 N.W.2d 238, 240 (Minn. 1986); State v. Hofer, 614 N.W.2d 734, 737 (Minn. App. 2000), review denied (Minn. Aug. 15, 2000).

An intervening, superseding cause of injury or death, however, will limit a defendant’s liability for her culpable conduct.  Hofer, 614 N.W.2d at 737; see also State v. Jaworsky, 505 N.W.2d 638, 643 (Minn. App. 1993), review denied (Minn. Sept. 30, 1993).  “An intervening, superseding act breaks the chain of causation set in operation by a defendant’s negligence, thereby insulating his negligence as a direct cause of the injury.”  Hofer, 614 N.W.2d at 737 (quotation omitted).

Intervening force’ is a term easier of comprehension than of exact definition.”  Robinson v. Butler, 226 Minn. 491, 494, 33 N.W.2d 821, 823 (1948) (quotation omitted).  An intervening, superseding cause sufficient to relieve a person from the consequences of negligent behavior

must (1) come between the negligence and the occurrence at issue; (2) not have been brought about by the original negligence; (3) turn aside the natural sequence of events producing a result which otherwise would not have followed the original negligence; and (4) not have been foreseeable from the original negligence.

 

In re Welfare of C.P.W., 601 N.W.2d 204, 209 (Minn. App. 1999), review denied (Minn. Nov. 23, 1999) (citations omitted); see also Hofer, 614 N.W.2d at 737.

An intervening, superseding cause of harm can be “the act of a third party occurring after a defendant’s negligent act and operating as an independent force to produce the injury.”  Hofer, 614 N.W.2d at 737 (quotation omitted).  But an

act of a third person, intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen. The original negligence still remains a culpable and direct cause of the injury. 

 

State v. Schaub, 231 Minn. 512, 519, 44 N.W.2d 61, 65 (1950) (quotation omitted).  More importantly, where the circumstances created by the original negligence induced the intervening act, the intervening act will not sever the causal connection between the initial negligent act and the resulting injury.  Schaub, 231 Minn. at 519, 44 N.W.2d at 65; see also In re Welfare of J.G.B., 473 N.W.2d 342, 347 (Minn. App. 1991) (concluding that “but for” the head-on collision, which caused a motor home to crush the victim, the victim would not have been crushed by the motor home).

            In State v. Wickstrom, this court commented on the relevancy of a hospital’s failure to place a mother on a continuous fetal monitor.  State v. Wickstrom, 405 N.W.2d 1, 3 (Minn. App. 1987), review denied (Minn. June 30, 1987).  In Wickstrom, an expert witness testified that the hospital negligently failed to place the victim/mother on continuous fetal monitoring.  Such monitoring, according to the expert, would have alerted the doctors to fetal distress allowing sufficient time to perform a Caesarian section.  Id.  Wickstrom thus argued on appeal that the hospital’s alleged negligence “was an intervening cause of the fetal death, relieving him of criminal responsibility.”  Id. at 6.  After noting that the supreme court has never decided “whether improper medical treatment which is not the sole cause of death may relieve a defendant of criminal responsibility for that death,” this court recognized

that the majority rule is that negligent treatment of the victim does not relieve a defendant of criminal responsibility * * * unless it is so bad as to constitute gross negligence or intentional malpractice. 

 

Id. (quotation omitted).  Because there was no evidence that the hospital was grossly negligent, the Wickstrom court did not reach the ultimate causation question.

In State v. Lund, this court approved the holding in Wickstrom and rejected the appellant’s argument that the district court erred by excluding evidence that the victim was not wearing a seatbelt at the time of the accident:

We find no merit to appellant’s argument that the failure to wear a seatbelt * * * broke the causal chain and therefore was relevant testimony. * * * *  

* * * On the record here, the trial court did not abuse its discretion by excluding the testimony.

 

474 N.W.2d 169, 174 (Minn. App. 1991).

 

Here, the state filed a motion in limine requesting the exclusion of the testimony of Dr. Narayan and preventing appellant from introducing testimony regarding possible intervening, superseding causes of the unborn child’s death.  It also requested an order preventing appellant from presenting testimony regarding the possible negligence of the local hospital contributing to the unborn child’s death.  The state contended that this evidence should be excluded because, as a matter of law, there was no break in the chain of causation to indicate an intervening, superseding cause of death.  The state also argued that the relevance of this evidence was substantially outweighed by the danger of unfair prejudice and jury confusion.  The district court granted the state’s motion in limine, concluding that “whether a different medical procedure might have saved the baby is irrelevant as the proximate cause remains the defendant’s driving conduct.”

Although appellant asserts that the district court’s order prevented her from fully presenting her defense, we conclude the district court did not abuse its discretion by excluding the testimony of Dr. Naryan and the evidence of the hospital’s alleged negligent treatment of M.E.M., because it was simply not relevant to the ultimate causation question.

First, setting aside the question whether the hospital was negligent in treating M.E.M. after the accident, there is no evidence in the record that the conduct of the hospital personnel broke the chain of causation set in operation by appellant’s gross negligence, thereby insulating that negligence as the direct cause of the child’s death.  Hofer, 614 N.W.2d at 737.  Appellant should have foreseen that any accident resulting from her gross negligence would likely result in death or injury to her passengers, injuries that would require treatment at local health-care facilities and perhaps transfers to other facilities.  Therefore, the hospital’s conduct did not “turn aside the natural sequence of events producing a result which otherwise would not have followed the original negligence.”  In re Welfare of C.P.W., 601 N.W.2d at 209.

Moreover, it is clear that “but for” appellant’s grossly negligent conduct, M.E.M. would never have been thrown from the vehicle and would not have sustained her various injuries.  Thus, appellant’s original gross negligence induced the hospital’s intervening acts, namely, M.E.M.’s treatment at the local hospital.  Schaub, 231 Minn. at 519, 44 N.W.2d at 65; In re Welfare of J.G.B., 473 N.W.2d at 346.

Second, both Wickstrom and Lund, read together, indicate that a district court does not err by excluding evidence of an intervening cause that, although perhaps contributing to the ultimate injury, does not sever the causal connection between the original negligence and the injury.  If, as a matter of law, the testimony would not indicate a break in the causal connection, Wickstrom and Lund suggest that it may be properly excluded.  Here, appellant wanted to offer the testimony of Dr. Naryan to support her theory that the hospital’s alleged negligence caused the death of M.E.M.’s child; but even Dr. Naryan indicated in his pretrial report that “the proximate cause of fetal demise was the automobile accident.”  Although the hospital may have incorrectly decided to transfer M.E.M to Willmar based on the condition of the child at the time of transfer, appellant proffered no evidence that this decision broke the causal connection between her gross negligence and the child’s death. 

Finally, Wickstrom suggests that the standard in Minnesota for breaking the causal connection between original negligence and resulting injury is gross negligence or intentional malpractice.  Although we again decline to determine whether gross negligence or intentional malpractice is required to break a chain of causation because of the particular procedural posture of this case, it is undisputed that appellant’s offer of proof did not allege gross negligence or intentional malpractice on the part of the local hospital.

II.         Harmless Error

We also conclude that even if the district court erred by excluding the evidence, the district court’s error was harmless.  Harmless error analysis is appropriate where, as here, a defendant’s right to go to the jury is only “partially denied.”  State v. Ferguson, 561 N.W.2d 901, 902 (Minn. 1997); Buchanan, 431 N.W.2d at 550 (stating that “even if exclusion of the evidence did violate [appellant’s] constitutional right to present a defense, the decision still will not be reversed if it is found harmless beyond a reasonable doubt” (citation omitted)). 

An evidentiary ruling is only prejudicial, and therefore reversible, “if there is a reasonable possibility the error complained of may have contributed to the conviction.”  Buchanan, 431 N.W.2d at 550 (citation omitted).  We must not determine whether the jury could have convicted appellant without the error, but instead must determine what effect the error had on the jury’s verdict, “and more specifically, whether the jury’s verdict is ‘surely unattributable’ to [the error].”  State v. King, 622 N.W.2d 800, 811 (Minn. 2001) (quoting State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997)).

Here, even if Dr. Naryan had testified for the defense, as his report makes clear, he would have admitted that the “proximate cause” of the placental abruption was the trauma experienced by M.E.M when she was ejected from the vehicle.  The state only had to prove that appellant’s gross negligence was a substantial causal factor in the death of M.E.M.’s unborn child.  Therefore, any error by the district court in excluding Dr. Naryan’s testimony was harmless as a matter of law because there is no reasonable possibility that the error contributed to appellant’s conviction.  Buchanan, 431 N.W.2d at 550.

II.         Sentencing

Appellant also argues the district court abused its discretion by failing to consider the effect of the local hospital’s alleged negligence in sentencing.  She contends the alleged negligence was a substantial and compelling mitigating factor and that the failure to consider this factor was error.

            Generally, it is the rare case where a district court’s refusal to depart from the sentencing guidelines warrants a reversal.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  A district court has broad discretion in deciding not to depart from the sentencing guidelines and Minnesota appellate courts will generally not interfere with the exercise of that discretion.  Id.; see also State v. Curtiss, 353 N.W.2d 262, 263 (Minn. App. 1984).

But even if a mitigating factor is clearly present, it does “not obligate the court to place defendant on probation or impose a shorter term than the presumptive term.”  State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984); see also State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001) (stating that the “existence of [mitigating] factors [does] not obligate the sentencing court to depart from the presumptive sentence”), review denied (Minn. Aug. 22, 2001).

The district court issued a written sentencing order stating that it had “considered possible mitigating and aggravating factors to justify downward or upward departures from the Sentencing Guidelines.”[4]  The court recognized appellant’s limited cognitive ability but acknowledged that “her subnormal IQ has not prohibited her from leading a normal life and holding jobs which require good judgment and responsibility.”  The court therefore concluded appellant’s limited cognitive ability did not constitute a mitigating factor justifying a downward departure. 

The court instead concluded that appellant’s grossly negligent conduct that caused the accident “border[ed] on exceptional cruelty to the victims, who were already vulnerable.”  The court also recognized the significant impact of the death of M.E.M.’s unborn child on her parents and relatives.  The district court did not address the significance of the hospital’s alleged negligence in its sentencing order.

Appellant does not cite any authority that suggests a district court must refer to each possible mitigating factor in its oral or written sentencing order.  The record here indicates the district court thoughtfully and deliberately considered both the aggravating and mitigating factors present in this case.  The court, aware of its pretrial ruling excluding the testimony of Dr. Naryan, plainly understood the different facets of this case, including the conduct of the hospital personnel after the accident. 

It is well-established that a decision not to depart, even where a mitigating factor is present, is still reviewed for an abuse of discretion.  Wall, 343 N.W.2d at 25; Oberg, 627 N.W.2d at 724.  We conclude the district court did not abuse its discretion by sentencing appellant to a presumptive 48-month prison sentence.

            Affirmed.

 



[1] Placental abruption “is the premature separation of the placenta from the implantation site.”  Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 192 n.6  (Minn. 1990) (citing 4C R. Gray, Attorney’s Textbook of Medicine ¶ 305.51, at 305-43 (3d ed. 1989)).  The existence of vaginal bleeding, uterine tenderness, absence of fetal heart tones, hypertonicity of the uterus, and hypovolemia all indicate severe placental abruption.  Id. “With respect to treatment, [i]f cesarean section is not accomplished immediately, the fetus must be monitored carefully for signs of distress and the facilities for cesarean section should be on hand, ready for use, if necessary.”  Id. (quotation omitted).

[2] M.E.M. testified that she asked appellant to slow down several times because M.E.M. was pregnant.  J.M. testified that appellant was driving 65 to 70 miles per hour and failed to stop at two stop signs.  The other juveniles all testified that appellant drove approximately 100 miles per hour on certain stretches of the road.  The highway patrol accident report estimated that appellant was driving 76 to 79 miles per hour when the accident occurred.

[3] Banister testified that there are several documented causes of placental abruption including trauma, chronic high blood pressure, and cigarette smoking; however, the most likely cause of the hemorrhaging was the trauma caused by the accident.  M.E.M., however, admitted that she smoked cigarettes during her pregnancy.

[4] The court withheld its sentencing decision at the hearing, stating that it needed additional time to consider the arguments of the parties:

 

Normally, I would issue a sentence on the spot at this hearing but there’s so much I have to digest yet considering the victims’ statements and the defense statements that I’m going to have to take this under advisement * * * .