State v. Hilding

                                       487

 Argued and submitted October 28, 2020; convictions on Counts 11 through 14
 reversed, convictions on Counts 1, 2, and 7 reversed and remanded, remanded
              for resentencing, otherwise affirmed June 29, 2022


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                 BRANDON MICHAEL HILDING,
                       Defendant-Appellant.
                   Lincoln County Circuit Court
                       18CR28793; A169256
                                    

    Defendant appeals from a judgment of conviction for two counts of first-degree assault (Counts 1 and 2), one count of third-degree assault (Count 3), and
nine counts of first-degree criminal mistreatment (Counts 4 to 7 and Counts 10
to 14). Those charges stem from injuries that the state alleged defendant caused
his infant son. On appeal, defendant challenges the trial court’s denial of his
motions for judgment of acquittal on Count 2 and on Counts 11 to 14, the trial
court’s refusal to give his requested jury instruction for first-degree assault,
which included a criminal negligence mental state for the result element, the
trial court’s limitation on the testimony of his expert, and the trial court’s giving
of a nonunanimous jury instruction and accepting nonunanimous jury verdicts
on Counts 2 and 7. Held: (1) The trial court did not err in denying defendant’s
motion for judgment of acquittal on Count 2, because the state adduced sufficient evidence of a serious physical injury. (2) The trial court did err in denying
defendant’s motion for judgment of acquittal on Counts 11 to 14, because the legal
theory on which the court relied was not legally cognizable under the Supreme
Court’s construction of the applicable statute. (3) The trial court erred in refusing
to give defendant’s requested jury instruction for first-degree assault and the
error was not harmless. (4) The trial court did not err in limiting the testimony
of defendant’s expert. (5) The trial court plainly erred in giving a nonunanimous
jury instruction, which requires reversal of the counts for which the jury verdicts
were nonunanimous.
   Convictions on Counts 11 through 14 reversed; convictions on Counts 1, 2,
and 7 reversed and remanded; remanded for resentencing; otherwise affirmed.



    Sheryl Bachart, Judge.
  George W. Kelly argued the cause and filed the briefs for
appellant.
   Christopher A. Perdue, Assistant Attorney General, argued
the cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
488                                        State v. Hilding

  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
  ORTEGA, P. J.
   Convictions on Counts 11 through 14 reversed; convictions
on Counts 1, 2, and 7 reversed and remanded; remanded for
resentencing; otherwise affirmed.
Cite as 

 (2022)                             489

        ORTEGA, P. J.

         Defendant appeals from a judgment of conviction
for two counts of first-degree assault (Counts 1 and 2), one
count of third-degree assault (Count 3), and nine counts
of first-degree criminal mistreatment (Counts 4 to 7 and
Counts 10 to 14). Those charges stem from injuries that
the state alleged defendant caused his son, C, when C was
between the ages of two and five months old. Defendant
raises four assignments of error on appeal and one supplemental assignment of error.

         In his first two assignments, defendant challenges
the trial court’s denial of his motions for judgment of acquittal on Count 2 and on Counts 11 to 14. With respect to
Count 2, first-degree assault, the state adduced sufficient
evidence of a serious physical injury and thus the court
did not err in denying defendant’s motion. However, with
respect to Counts 11 to 14, first-degree criminal mistreatment, the trial court erred in denying defendant’s motion,
because the legal theory on which the court relied is not
legally cognizable under the Supreme Court’s construction
of ORS 163.205(1)(a) articulated in State v. Baker-Krofft,

, 

 (2010). We thus reverse those
counts.

         In his third assignment of error, defendant challenges the trial court’s refusal to give his requested jury
instruction for first-degree assault, which included a criminal negligence mental state for the result element. Based on
State v. Owen, 

, 

 (2022), we agree with
defendant that the trial court erred, and we further conclude that, under the circumstances of this case, that error
was not harmless. We thus reverse and remand Counts 1
and 2.

        In his fourth assignment of error, defendant challenges the court’s limitation on the testimony of his expert,
Dr. Hyman. Specifically, the court excluded Hyman’s diagnosis that C had “temporary bone fragility” and determined
that Hyman was not qualified to render a child-abuse diagnosis. We conclude that the trial court did not err.
490                                           State v. Hilding

         Finally, in his supplemental assignment of error,
defendant argues that the trial court plainly erred in giving
a nonunanimous jury instruction and that all of his convictions should be reversed as a result. The state concedes
that defendant is entitled to reversal on the nonunanimous
counts, Counts 2 and 7, under Ramos v. Louisiana, 

, 

, 

 (2020), and State v.
Ulery, 

, 

 (2020). We agree and
accept the state’s concession. As for the remaining convictions by unanimous verdict, we conclude that any error in
giving the nonunanimous jury instruction was harmless.
State v. Flores Ramos, 

, 

 (2020).
         In sum, we reverse and remand defendant’s convictions on Counts 1, 2, and 7, reverse his convictions on
Counts 11 through 14, remand for resentencing, and otherwise affirm.
         For purposes of reviewing the trial court’s denial
of defendant’s motions for judgment of acquittal, “we view
the evidence in the light most favorable to the state.” State
v. Nickles, 

, 

 (2019). We provide the following background facts with that standard in
mind. To the extent we must consider other facts, or with
a different standard in mind, to address defendant’s other
assignments of error, we do so in the analysis of those other
assignments.
         Defendant is C’s father. C was born prematurely at
33 weeks in November 2017. His birth was uncomplicated,
and he showed no signs of injury from the birth process; he
did not show any signs of pain or weakness in his extremities or any sign of a skull fracture or a subdural hematoma.
Dr. Lam, who treated C while he was in the hospital after
his premature birth, testified that the injuries that C suffered between the ages of two and five months would not
have been caused by his birth. While C was in the hospital
following his birth, both defendant and C’s mother received
education on how to calm a crying baby, the consequences of
shaking a baby, fall risks to a baby, and safe sleep for a baby.
        C and his parents lived with friends for about six
weeks after his birth. During that time, defendant saw
bruises on C’s arm, and he showed C’s mother. C’s mother
Cite as 

 (2022)                             491

testified that C did not have the bruise when she left C with
defendant. Also during this time, C’s mother, in a follow-up
medical appointment after C experienced jaundice, asked
about bleeding that she saw in C’s mouth, but the nursing
assistant did not find a source of trauma.

         C and his parents next lived with C’s maternal
grandparents for about a month. C’s grandmother testified
that C cried a lot, was anxious and hard to soothe, that
defendant would wear headphones at night and not attend
to C when he cried, and that, at some point, she saw bruising on C’s arm, leg, and on his head over his eyebrow. C
also suffered bruising to his mouth when defendant forcefully held a pacifier in C’s mouth when he would not stop
crying. C’s grandfather also saw bruises on C’s arm and leg
like “somebody had grabbed him too hard.” C’s grandmother
also thought that defendant was a little too rough with C
and that he swaddled C too tight.

         On January 22, 2018, C’s mother took him to the
emergency room because he was sick and having difficulty
breathing. C was diagnosed with bronchiolitis, or an inflammation of the lungs, and required treatment in the hospital.
C’s mother reported that he had been sick for several days,
was coughing, and had not been feeding well. Defendant
expressed a concern that C had cracked ribs from coughing because he could feel some crackling in his torso. The
treating doctor, Dr. Dourgarian, found defendant’s question
strange and troubling, because it would not be normal for a
baby to have crackling over their ribs or to have a rib injury
from coughing. When asked, C’s parents did not report that
C had fallen or had an injury. Dourgarian testified that rib
fractures in infants are very abnormal because their ribs are
mostly cartilage and difficult to break and “it takes quite a
bit of force to break an infant’s ribs.” Dourgarian followed
up with a regular x-ray, mostly because of C’s breathing
difficulty. On the first report, the radiologist could not rule
out rib fractures. A second x-ray was taken, and the second radiologist did not see signs of rib fractures. C’s mother
again took C to the ER a week later on January 30, because
of a cough, congestion, and difficulty breathing. The hospital
again took chest x-rays of C.
492                                          State v. Hilding

         Also around the end of January, C’s parents moved
out of C’s grandparents’ house and began living with a
friend, Ray, where they stayed until April. While they lived
there, C’s mother worked, but defendant did not and would
watch C, unless C’s mother found someone else to babysit.
Ray testified that defendant would swaddle C too tight and
would be forceful with holding the bottle to C’s mouth when C
refused the bottle. Ray also saw bruises on C’s forehead and
arm while he was living there. During that time period, C’s
mother also twice noticed bruises on C; once he had bruises
“all over his head,” which defendant attributed to C “head
butting” his head into defendant’s chest, and he attributed
another bruise to C flipping himself out of defendant’s lap.
         On February 18, while Ray was home with defendant and C, C stopped breathing. Ray called 9-1-1. On recommendation of the 9-1-1 operator, defendant performed CPR
on C for about 20 seconds. When the ambulance arrived, C
was crying, breathing normally, and his color was good. C
did not have swelling or bruising to his chest from the CPR,
and he was not showing signs of pain. C’s mother arrived
before the ambulance left, and she rode with C to the hospital. At the hospital, the treating doctor could not find a
medical reason for the event. He testified that those types of
episodes are called a “brief resolved unexplained event” or
BRUE. During that hospital stay, C again had x-rays of his
torso.
         On February 20, C’s mother called his primary doctor, Dr. Wherry, because C was vomiting, not eating well,
and had some cough and congestion. Wherry reported that
C was irritable and screaming but otherwise “looked very
well.” On March 8, C’s mother called again, concerned that
C continued to be sick. A different doctor treated C, and she
noted that C’s soft spot felt a little more full, and C had a
small bruise on his forehead. Defendant told the doctor that
C had rolled onto the floor from a mattress that was sitting
on the floor.
        In April, C’s parents moved in with Hernandez.
During that time, C’s mother worked two jobs and defendant
primarily watched C. Hernandez was also often home with
her own child at the same time and observed that defendant
Cite as 

 (2022)                            493

was rough with C and that C would cry a lot and defendant would ignore C’s cries. She testified that once defendant came home drunk, picked up C, who was crying, and
took him into the bedroom for a nap, while talking aggressively to C. When C got up from the nap, he had a bruise on
his face from the bottom of his eye to his cheek. C’s mother
also related the same incident and that defendant could not
explain the bruise. Hernandez also saw C with a lip injury
and with a bruise on his ear about the size of a quarter.
       On April 3, C’s mother called Wherry, concerned
that C was vomiting and not able to keep any food down.
On advice from Wherry’s office, she took C to the emergency
room. The hospital believed the cause was a viral infection
and gave C a medication to stop his vomiting.
        On April 23, C’s mother again called Wherry, concerned that C was acting abnormally, that his soft spot was
strange, and that he had some bruising along his head. At
an appointment on April 25, Wherry noted that C’s soft spot
was “bulging” and his head circumference was significantly
larger. Wherry ordered blood labs which showed that C did
not have a bleeding disorder, but he could not get insurance
approval for a head CT right away and sent C home with his
mother. The CT was approved the next day, April 26.
         On that follow-up visit, Wherry noted that C’s head
circumference was about the same as the previous day and
also noticed a bruise on his foot. The CT showed that C had
subacute subdural hematomas on the right and left side,
with the one on the right slightly larger and more hyperattenuated than the one on the left, which meant that the
hematomas were different ages and that the right side probably had rebleeding from a repeat trauma. At that point,
Wherry believed that C had had a nonaccidental trauma,
and C was transferred to Randall’s Children’s Hospital.
         At Randall’s, Dr. Zoeller, a pediatric neurosurgeon,
performed surgery to remove the blood and relieve pressure
on C’s brain. Zoeller testified that C’s scans showed a large
collection of blood near the brain that required surgery, some
brain atrophy consistent with injury, and a skull fracture.
At the time, however, C did not have bruising, indicating
494                                          State v. Hilding

that the fracture was more than a few days old. Zoeller also
testified that the enlarged size of C’s head indicated that
blood had been accumulating for some time, but also that
the presence of newer bleeding indicated that C had more
than one injury. Zoeller testified that the type of trauma he
observed in C could cause a baby to stop breathing, be fussy
and difficult to calm, and have seizures. Zoeller opined that
C’s vomiting incidents were related to the head trauma,
because the increasing pressure from the blood on the brain
can cause vomiting. He also opined that the bleeding could
only have been caused by trauma and was not caused by
birth-related trauma because of the location of the fracture,
the amount of blood, and that C was five months old. Zoeller
testified that C did not have brittle bone disease because the
imaging showed “nice thick bone.”

        A pediatric radiologist at Randall’s reviewed the
chest x-rays taken during C’s three hospital visits on
January 22, January 30, and February 18, and found rib
fractures present on all three dates. A skeletal survey of C
on April 28 showed a right skull fracture, multiple rib fractures on both sides, some of which were healed, a healing
fracture to the forearm, and a bone injury in his leg. That
April scan showed that C had rib fractures that were not
present in January and February.

         Dr. Adewusi, a pediatrician with CARES Northwest,
checked for bone or bleeding issues that could explain C’s
injuries, but did not find any. Adewusi testified that C’s
head trauma was consistent with violent, repetitive movement, like being thrown, and that symptoms could include
being fussy, vomiting, stopping breathing, coma, and death.
The parents’ explanations for C’s injuries did not match the
reported bruising that C had. Adewusi also testified that it
would require significant compression force or blunt force
trauma to cause the rib fractures that C had and that fractures from CPR on infants is rare. Adewusi also testified
that a rib fracture could also cause internal injury, like a
contusion to the lungs, which would be concerning for “significant morbidity.” Adewusi also confirmed that studies
have found that the odds of mortality in children increases
with each additional rib fracture.
Cite as 

 (2022)                             495

          In speaking with detectives, defendant never blamed
C’s mother for C’s injuries. Rather, he took responsibility for
them, but offered accidental causes, including that C rolled
off the mattress, would head-butt defendant’s chin, and
fell off the couch, that defendant had dropped C once after
he had been drinking alcohol, and that C “back-flipped”
out of defendant’s arms about a month and a half earlier.
Defendant also admitted to detectives that he sometimes
gets “black-out drunk,” that “things” could have happened
to C when defendant was drinking, that he probably did
hurt C when he was drunk, and that, until recently, he was
drinking almost every day. Defendant also admitted that,
a couple of days before C’s surgery, he got mad at C and
threw him into his crib and “heard a thunk,” which could
have been C’s head hitting the wall. Defendant also said
that C’s ribs could have been injured because he might have
squeezed C when he was drunk.

         In messages between defendant and C’s mother on
four different dates in March, defendant made statements,
including that he “can’t do this” and was about to “walk off,”
that he was scared he will “snap” and hurt C and that he
did not want to be alone with C, that C would not stop crying and defendant was about to “blow up” and “walk out,”
and that C had bruises on his head because he head-butted
defendant. On April 18, defendant messaged C’s mother that
he is “afraid to touch him” and that he is not a good father.

         C was placed in foster care immediately following
his discharge from the hospital after his brain surgery. He
did not have any further injuries or suspicious bruising. His
emergency-care foster mother testified that C never head-butted or caused injury to himself during the five days he
was with her. C’s foster mother, who had continuous care of
C after those five days and through trial, testified that, on
his arrival to her home, C had developmental delays, such as
not being able to sit up or support his head, not rolling over,
not using his left arm, and not babbling. Before C started
crawling, she never observed C to bruise himself or to butt
his head. Since his foster placement, C has improved, but
still has some developmental delays in communication and
cognitive processing.
496                                                        State v. Hilding

         At the close of the state’s case, and as relevant to
his appeal, defendant moved for judgments of acquittal on
Count 2, first-degree assault, and Counts 11 through 14,
first-degree criminal mistreatment. For Count 2, the indictment alleged that, on or about the period between November 20,
2017 and January 22, 2018, defendant knowingly caused
serious physical injury to C’s ribs and torso. Defendant
argued that the state had failed to prove that C’s rib injuries
met the standard of serious physical injury, because there
was no testimony that the fractures created a substantial
risk of death.1 The state’s theory was that C’s physical injury
created a substantial risk of death because the injury to C’s
ribs or torso contributed to the February 18 BRUE when C
stopped breathing. The trial court denied the motion, ruling
that, based on testimony that the type of trauma to C’s ribs
required a level of force that could cause respiratory problems, the jury could infer that the BRUE on February 18
was related to that injury.
         For Counts 11 through 14, first-degree criminal
mistreatment, the indictment alleged that, with respect to
four different date ranges, defendant knowingly withheld
necessary and adequate physical care from C. The state’s
theory was that, between January and April 2018, defendant was C’s primary caretaker and, during that time, he
paid inadequate attention to C—left C in his crib for long
periods, failed to feed him, and ignored his crying while
playing video games—and that, despite knowing that C
was injured in his care and that he, at least once, dropped
C while he was drunk, he continued to care for C and to
drink while caring for C. The state clarified that it was not
arguing that defendant failed to provide medical care for
C. Defendant argued that the state’s theory did not allege
anything that rose to the level of withholding care from C
for purposes of first-degree criminal mistreatment.
        The trial court denied defendant’s motion, relying
on State v. Burciaga, 

, 

, adh’d
    1
      A “serious physical injury” means “physical injury which creates a substantial risk of death or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function
of any bodily organ.” ORS 161.015(8). “Physical injury” means “impairment of
physical condition or substantial pain.” ORS 161.015(7).
Cite as 

 (2022)                                497

to as modified on recons, 

, 

,
rev den, 

 (2014). The court reasoned that there
was sufficient evidence that defendant withheld care by
continuing as C’s primary caretaker although he knew that
C was experiencing injuries and defendant expressed fear
that he was hurting or would hurt C because of his anger,
frustration, and blackouts from drinking. In so ruling, the
court emphasized that the unique feature of the case was
that defendant was aware that he posed a risk to C, but he
continued to care for C after each time that C was injured.
The court reasoned that, due to C’s age, necessary physical
care of C included ensuring that he did not sustain bruises
or fractures. The court summarized its reasoning this way:
       “So in relying on the Burciaga case, here it’s the …
   knowingly withholding necessary and adequate physical
   care. If the Court can find that a defendant can be guilty
   of criminal mistreatment for knowingly withholding necessary and physical care from leaving a child in the care of
   somebody who is known to be physically abusive towards
   minor children who are nonverbal and not able to protect
   themselves, a defendant could also be found guilty of continuing to care for an infant where he is repeatedly …
   frustrated, and when he becomes frustrated he becomes
   physically abusive. … The evidence that’s been presented
   here is his own consciousness of his frustration and his
   anger and fear of himself.”
         On appeal, defendant challenges the court’s denial
of his motions on Count 2 and on Counts 11 through 14.
On review of a denial of a motion for judgment of acquittal,
we examine the evidence “in the light most favorable to the
state to determine whether a rational trier of fact, accepting reasonable inferences and reasonable credibility choices,
could have found the essential element of the crime beyond a
reasonable doubt.” State v. Cunningham, 

, 

 (1994), cert den, 

 (1995).
         With respect to Count 2, in his first assignment of
error, defendant argues that the court erred because there
was no evidence from which the jury could infer that C’s
February 18 BRUE was caused by the fractures to his ribs
that were visible in the x-rays taken on January 22, which
was the end of the date range alleged in that count. Having
498                                                         State v. Hilding

reviewed the evidence in the light most favorable to the
state, we conclude that the state adduced sufficient evidence
from which a rational jury could find beyond a reasonable
doubt that C’s rib injuries were caused with sufficient force
to also cause respiratory problems that contributed to C’s
February 18 BRUE. Thus, the trial court did not err in denying defendant’s motion for judgment of acquittal as to that
count.
         With respect to Counts 11 through 14, in his second
assignment of error, defendant argues that the trial court
erred when it extended Burciaga to his case, because that
reading would allow the state to charge an additional criminal mistreatment count, based on withholding of physical
care,2 with every instance that a person abuses a child more
than once. Defendant argues that continuing to care for a
child even though the person knows that they could pose a
risk to that child when drinking or frustrated is not the conduct that the legislature intended to cover in the withholding of care section of the first-degree criminal mistreatment
statute. Rather, defendant argues, the statute is directed
at precisely what it states, withholding of care, which is a
failure to attend to the child’s bodily needs, and an abuser
does not withhold care simply by allowing themselves to be
around a child.
         The state responds that, given the evidence in this
case, defendant could be convicted of criminal mistreatment for his pattern of neglect and carelessness with C. The
state argues that, “[p]ut simply, defendant failed to provide
the necessary attention that C required when [defendant]
repeatedly drank to excess yet assumed responsibility for
care for C.” Here, the state asserts, it was not the abuse
itself that amounted to withholding of care, it was “defendant’s more general pattern of violent drunkenness and

    2
     First-degree criminal mistreatment also applies if
   “[t]he person, in violation of a legal duty to provide care for a dependent person or elderly person, or having assumed the permanent or temporary care,
   custody or responsibility for the supervision of a dependent person or elderly
   person, intentionally or knowingly … [c]auses physical injury or injuries to
   the dependent person or elderly person[.]”
ORS 163.205(1)(b)(A). Defendant was convicted of first-degree criminal mistreatment in Counts 4 to 7 and 10 based on that theory.
Cite as 

 (2022)                               499

gross inattentiveness [that] established a failure to attend
to C’s physical needs.”
        To begin our analysis, we emphasize the basis on
which the trial court denied defendant’s motion. Its ruling
was based on an explicit extension of the theory present in
Burciaga—that defendant left C in defendant’s own care
despite knowing that he was physically abusive toward C
when frustrated or drunk. That is not, as the state asserts,
a theory based on defendant’s “more general pattern” of violent drunkenness and inattentiveness; it is a theory that
defendant withheld physical care from C through the act
of assuming responsibility for C’s care despite knowing the
risk of physical abuse he posed to C. Thus, the question
before us is whether that theory is legally cognizable under
ORS 163.205(1)(a), the section of the first-degree criminal
mistreatment statute at issue. We conclude that it is not.
         We begin with a brief overview of the law on which
the trial court relied. The relevant section of the first-degree
criminal mistreatment statute provides:
     “(1) A person commits the crime of criminal mistreatment in the first degree if:
      “(a) The person, in violation of a legal duty to provide
   care for another person, or having assumed the permanent or temporary care, custody or responsibility for the
   supervision of another person, intentionally or knowingly
   withholds necessary and adequate food, physical care or
   medical attention from that other person[.]”
ORS 163.205(1)(a).
         In Baker-Krofft, the Supreme Court interpreted the
phrase “withholds necessary and adequate … physical
care” to mean “the defendant keeps back from the dependent
person those physical services and attention that are necessary to provide for the dependent person’s bodily needs.” 

. The court rejected the state’s proffered interpretation, which would have included in the definition “creating
or failing to correct any and all dangers to the child’s safety.”

 The court noted that the state’s interpretation did not
square with the text, because it converted the verb “withhold” to “create” or “fail to correct,” and thereby converted
500                                           State v. Hilding

the prohibition on withholding specific services “into a prohibition against creating any and all risks to a dependent
person’s health,” and converted “a statute that prohibits a
present deprivation of services or attention into one that
prohibits creating a risk of future harm.” 

.
         In Burciaga, we extended the Supreme Court’s reasoning to circumstances where the defendant had left her
two children, J and N, in the care of Ros, who had previously physically abused J when the child was two years old,
resulting in a fourth-degree assault conviction. 

. After that conviction, the defendant left the children
alone with Ros two more times—when J was three years old
and N two years old—during which time he again assaulted
J. The defendant then left the children in Ros’s care a third
time, during which time Ros assaulted N, resulting in N’s
death. 

. The state’s theory for two of the counts of
first-degree criminal mistreatment against the defendant
was that, by leaving her children in the care of Ros, who
she knew had assaulted one of the children, the defendant
withheld from her children “the physical care required to
meet their basic safety and survival needs and left them in a
condition almost certain to cause them serious physical pain
and injury.” 

.
         We reasoned that the court in Baker-Krofft had
suggested “that necessary and adequate physical care
may include some types of preventative or protective care.”
Burciaga, 

 (internal citations omitted). We
concluded that the rule that the court announced “d[id] not
preclude the possibility that necessary and adequate physical care of a dependent person includes protecting the person from certain types of future harms.” 

. In terms
of the case before us, we concluded that the state presented
sufficient evidence that the defendant had withheld necessary and adequate physical care from her two children. In
particular, the defendant withheld her attention from them,
which,
   “under the circumstances, was necessary to provide for
   their basic bodily needs, indeed for their survival. …
   Defendant put her children in a situation where there was
   a substantial risk that they would suffer serious harm and
Cite as 

 (2022)                                              501

      then she turned her back on them. Her conduct constituted
      a present deprivation of essential physical care.”

         This case presents circumstances that are not comparable to those present in Burciaga. Here, defendant did not
withhold his attention from C. Indeed, it was his attention
that presented the safety risk to C—the attention he gave to
C when he was drunk or frustrated was abusive attention.
A person cannot withhold necessary and adequate physical
care from a dependent person through the act of continuing
to care for the dependent person, as reasoned by the trial
court. The gravamen of the charge is missing under that
line of reasoning—the keeping back of a necessary service
from the dependent person. See Baker-Krofft, 

(concluding that “the statutes rest on the premise that the
actor keeps back something (food, physical care, or medical attention) from a person who would not otherwise be
able to obtain it for him or herself”).3 Extending the statute to encompass the conduct here would prohibit what the
Supreme Court in Baker-Krofft said ORS 163.205(1)(a) does
not prohibit. Accordingly, the trial court erred in denying
defendant’s motion for judgment of acquittal on Counts 11
through 14, and we reverse the convictions on those counts.
         We turn next to defendant’s third assignment of
error, in which he challenges the trial court’s jury instructions on Counts 1 and 2, first-degree assault. Defendant had
requested a jury instruction that included a culpable mental
state of criminal negligence for the result element of serious
physical injury on those counts. The court declined to give
that instruction.
        Based on recent cases, we agree with defendant that
the trial court erred in not giving the requested instruction. In Owen, the Supreme Court held that the result

    3
      See also Baker-Krofft, 

 (reciting the legislative history,
which includes commentary that the statute sought to reach conduct not covered
by the criminal code, such as withholding food or other services; that commentary stated that, “if it’s a physical abuse thing where somebody actually hits
someone, the criminal code takes care of that [already]” (quoting Tape Recording,
Senate Floor, SB 780, June 29, 1973, Tape 32, Side 1 (statement of Sen Wallace P.
Carson) (brackets in Baker-Krofft))).
502                                          State v. Hilding

element—physical injury—in the crime of second-degree
assault carries, at a minimum, a culpable mental state of
criminal negligence. 

. The court further
held that a court errs when it fails to instruct the jury that
a defendant must act with a culpable mental state as to
the element of causing physical injury. 

; see also
State v. McKinney/Shiffer, 

, 

 (2022).
The same reasoning applies to the result element—serious
physical injury—of first-degree assault as charged in this
case. See ORS 163.185(1)(b) (“A person commits the crime
of assault in the first degree if the person … [i]ntentionally or knowingly causes serious physical injury to a child
under six years of age.”). Here, defendant requested a jury
instruction that applied a culpable mental state of criminal negligence to the injury element of first-degree assault.
Based on Owen, defendant was entitled to have the court
deliver the requested instruction and the court erred in not
doing that. See State v. McNally, 

, 

 (2017) (“A criminal defendant is entitled to have the jury
instructed in accordance with his or her theory of the case if
the instruction correctly states the law and there is evidence
to support giving it.”); State v. Jury, 

,

 (2002), rev den, 

 (2003) (“The ‘benchmark’ for error is the law existing as of the time the appeal
is decided.”).
         Having concluded that the trial court erred, we
must determine whether that error was nonetheless harmless. State v. Davis, 

, 

 (2003) (trial
court error is harmless if there was “little likelihood that
the error affected the jury’s verdict”). “To make that determination, we consider the instructions ‘as a whole and in
the context of the evidence and record at trial, including
the parties’ theories of the case with respect to the various
charges and defenses at issue.’ ” Owen, 

 (quoting State v. Payne, 

, 

 (2020)).
“The party requesting an instruction is prejudiced if the
trial court’s failure to give the requested instruction probably created an erroneous impression of the law in the minds
of the members of the jury, and if that erroneous impression
may have affected the outcome of the case.” Hernandez v.
Barbo Machinery Co., 

, 

 (1998).
Cite as 

 (2022)                                   503

        Here, the court instructed the jury that it had to
find that defendant “acted with an awareness of the assaultive nature of his conduct. It does not require he was necessarily aware of the seriousness of the injury that resulted
from the conduct.” The court did not instruct the jury on the
meaning of “assaultive.” The court further instructed the
jury:
       “The term ‘physical injury’ means an injury that
   impairs a person’s physical condition or causes substantial
   pain. The term ‘serious physical injury’ means a physical
   injury that either: (1) creates a substantial risk of death, or
   (2) causes serious and protracted disfigurement, or (3) causes
   protracted impairment of health, or (4) causes protracted
   loss or impairment of the function of any bodily organ.”
In argument to the jury, the state presented its theory of
the case for Counts 1 and 2 in line with those instructions,
arguing that defendant caused C’s head and torso injuries by
some type of conduct that occurred while he was alone with
C when C was in his care and that those injuries created a
substantial risk of death to C. The state emphasized that
“[defendant] does not have to know that what he’s doing is
going to cause serious physical injury or put the child at risk
of death. But he has to know that his conduct is assaultive.”
         In the circumstances of this case, we conclude that,
had the jury been instructed on the culpable mental state
for the serious physical injury element, it could have made a
difference in the outcome of the case. Criminal negligence
   “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.”
ORS 161.085(10). Although the jury found that defendant
was aware of the assaultive nature of his conduct, based on
the jury instructions, it is not clear that the jury necessarily
would have also found that defendant failed to be aware of
a substantial risk that his conduct would cause C an injury
that created a substantial risk of death and that the risk
was of such a nature and degree that defendant’s failure
504                                                              State v. Hilding

to be aware of it was a gross deviation from the standard
of care a reasonable person would observe in the situation.
This is not a situation where the nature of the assaultive
conduct—which in this case was unknown—or other given
instructions necessarily encompassed a culpability standard
with respect to the serious physical injury element of first-degree assault. Cf. Owen, 

 (error was harmless where, based on the jury instructions, the jury found
that the defendant knew that his conduct was assaultive
and knew that the weapons he used were “readily capable of
causing serious physical injury,” because, even if instructed
on criminal negligence for the element of “physical injury,”
“the jury would not have found that defendant was unaware
that his actions would cause D physical injuries”); State v.
Chemxananou, 

, 

 (2022)
(“The jury found that defendant, with an awareness that
his conduct was assaultive in nature, strangled and kicked
K, hit the back of N’s head with a plate, and punched N in
the face. It is implausible that the jury, having found that
defendant knowingly took those actions, would then find
that he was not at least negligent with respect to the fact
that the children could be injured as a result.”). As a result,
we reverse and remand Counts 1 and 2.
          Finally, we address defendant’s fourth assignment
of error, in which he argues that the trial court erred when
it excluded Dr. Hyman, defendant’s expert, from testifying that he had diagnosed C with temporary bone fragility
and further excluded Hyman from giving an opinion about
whether C had been abused. As explained below, we conclude that the trial court did not err.
        Before trial, the state sought to exclude or limit
Hyman’s testimony and requested a OEC 104 hearing to
determine if his testimony met the threshold standard of
admissibility for scientific evidence under the factors in State
v. Brown, 

, 

 (1984), and State v. O’Key,

, 

 (1995).4 At the OEC 104 hearing,
     4
       Brown set out seven nonexclusive factors to use as guidelines to determine
if scientific evidence has met the threshold of admissibility: “(1) The technique’s
general acceptance in the field”; “(2) The expert’s qualifications and stature”;
“(3) The use which has been made of the technique”; “(4) The potential rate of
error”; “(5) The existence of specialized literature”; “(6) The novelty of the invention”;
Cite as 

 (2022)                                               505

defendant made an extensive offer of proof of Hyman’s testimony. Because it would not be beneficial to the bench or bar,
we do not summarize the record at length and only refer to
the most pertinent parts in our analysis.
         Following the offer of proof, the trial court concluded
that it would limit Hyman’s testimony in certain respects.
First, the court ruled that Hyman could testify about his
expertise in the fields of pediatrics and bone science and
about factors that affect bone strength, and that he could
talk about the term “temporary bone fragility.” The court
also ruled that Hyman could express his view on what he
believed the radiology of C’s bones showed. However, the
court ruled that Hyman could not offer a diagnosis of temporary bone fragility, because it did not meet the Brown
and O’Key threshold for scientific testimony “regarding an
actual diagnosis that he came to in this particular case.”5
         The court also ruled that Hyman was not qualified
as an expert in the field of child-abuse pediatrics such that
he could render an opinion about whether C was abused. The
court explained that a child-abuse diagnosis was allowed as
scientific testimony, as established by the state’s expert, but
Hyman testified that he expressly rejects the medical field
of child-abuse pediatrics as a science and that he has not
seen clinical patients since 1999. The court stated that “it’s
through his own testimony and his rejection of that area
of science that leads to his disqualification as an expert in
the field of child abuse [pediatrics].” The court did permit
Hyman to testify about whether C’s injuries were consistent
with the explanations given by defendant or what Hyman
believed was the amount of force required to cause those

and “(7) The extent to which the technique relies on the subjective interpretation
of the expert.” Brown, 

.
     The Supreme Court in O’Key also discussed four additional factors that may
be useful, and which overlap somewhat with the Brown factors: (1) “whether the
theory or technique in question can be (and has been tested)”; (2) “whether the
theory or technique has been subject to peer review and publication”; (3) “the
known or potential rate of error and the existence of operational standards controlling the technique’s operation”; and (4) “the degree of acceptance in the relevant scientific community.” O’Key, 

 (internal quotation marks
omitted).
     5
       In making that ruling, the trial court agreed with the state’s argument of
how to apply the Brown and O’Key factors.
506                                                           State v. Hilding

injuries. The court also permitted Hyman to testify about
his opinion of the field of child-abuse pediatrics, with a limiting instruction about hearsay if he were to rely on specific
studies for that opinion.
          On appeal, defendant argues that the trial court
erred because the Brown and O’Key factors favored admitting
Hyman’s diagnosis of temporary bone fragility. Defendant
also argues that the court erred in not allowing Hyman to
express his opinion on the diagnosis of child abuse, because
the court did not base its opinion about Hyman’s lack of
expertise on Hyman’s credentials, but rather on his rejection of the child-abuse pediatric field as a science. Defendant
asserts that Hyman’s credentials were sufficient, and that
he is not alone in his criticism of the child-abuse scientific
community.
          We review the trial court’s rulings on the admissibility of scientific evidence for legal error. State v. Reed, 

, 

, rev den, 

 (2015).
“Under Brown and O’Key, scientific evidence is admissible if
it is relevant under OEC 401, helpful to the trier of fact under
OEC 702, and not subject to exclusion under OEC 403.” State
v. Perry, 

, 

 (2009). Here, we need
only address the admissibility of the testimony under OEC
702.6 There are three general requirements a proponent of
evidence must meet for the admission of expert testimony:
(1) the witness must qualify as an expert on the particular
topic, (2) the expert’s testimony must be helpful to the jury,
and (3) the testimony must have an adequate foundation.
State v. Trujillo, 

, 

, rev den,

 (2015). For scientific testimony, “the proponent
of the evidence must demonstrate that an expert’s scientific
testimony is based on ‘scientifically valid principles’ and ‘is
pertinent to the issue to which it is directed.’ ” 

 (quoting
O’Key, 

). The Brown and O’Key factors help a
trial court determine whether the proffered scientific testimony meets that threshold. 

 Here, the court excluded
   6
     OEC 702 provides:
        “If scientific, technical or other specialized knowledge will assist the trier
   of fact to understand the evidence or to determine a fact in issue, a witness
   qualified as an expert by knowledge, skill, experience, training or education
   may testify thereto in the form of an opinion or otherwise.”
Cite as 

 (2022)                              507

Hyman’s diagnosis of temporary bone fragility based on the
lack of adequate foundation and excluded Hyman’s diagnosis relative to child abuse based on a lack of qualification.
We address those bases in turn.
          With regard to Hyman’s diagnosis of temporary
bone fragility, Hyman testified in the offer of proof that bone
fragility is defined as fractures due to low force trauma,
regardless of how the fractures look, which he determines
occurs when there is a lack of evidence of high force trauma,
such as a lack of internal injuries with rib fractures and
fractures that were not detected by the parent or medical
examiners. Hyman testified that he diagnosed C with bone
fragility based on a lack of evidence of high force trauma for
C’s injuries. He also testified that C had a history that suggested that he had weakened bones and that C’s radiology
supported Hyman’s diagnosis of temporary bone fragility.
Hyman, however, could not describe a set of diagnostic criteria for the condition and could not point to a single peerreviewed article or text from the medical community that
supports the diagnosis in an infant; he only stated simply,
and without references, that it is an accepted diagnosis in
the field of bone science. Hyman admitted that the diagnosis
is not accepted in the child-abuse pediatric community and
that he formerly diagnosed the same condition as “temporary brittle bone disease” which he admitted had been discredited “by the child abuse people.” Hyman admitted that
pediatric radiologists had submitted a letter and a peerreviewed article refuting his diagnostic theories, but stated
that those critiques were “all flawed.”
         We conclude that the trial court did not err in
excluding Hyman’s diagnosis of temporary bone fragility.
Hyman could not describe a process or set of criteria he used
to arrive at the diagnosis, relying primarily on not having
definitive evidence that high force was used to break C’s
bones. Hyman also could not explain “the standard practices, research, literature, guidelines or protocols that justified [his] reasoning.” State v. Sanchez-Alfonso, 

, 

 (2012) (concluding doctor’s diagnosis of
child abuse did not meet threshold for scientific testimony
where she “did not identify the potential causes of C’s injuries
nor explain how or why she had ruled one of these causes in,
508                                                          State v. Hilding

and others out” and she did not explain the scientific bases
to justify her reasoning). As explained in Sanchez-Alfonso,
    “[t]o conclude that scientific evidence is sufficiently reliable to be admissible under OEC 702, it is not enough that
    there are experts on a subject, that the person who testifies
    is credible, or that evidence takes the form of a medical
    record. Neither is it enough that ‘a lot’ of literature exists
    on the subject or that the expert gathers the information
    to which that literature refers and conducts a differential
    diagnosis. Instead, the expert must explain more precisely
    his or her own expertise, how he or she gathers and uses
    particular information, how that information informs his
    or her conclusions, and the scientific basis for the steps that
    he or she takes in the process.”

 Although Hyman could describe his experience in “bone
science” and the information he used to make the bone fragility diagnosis, his testimony lacked an explanation of the
scientific basis for the diagnosis itself or the process used to
arrive at it, and it failed to demonstrate that the diagnosis
and process were generally accepted or supported by literature in the field. Defendant, as the proponent of the scientific testimony, did not meet his burden to demonstrate that
Hyman’s diagnosis was based on scientifically valid principles. See, e.g., Trujillo, 

. Accordingly, the
trial court did not err in excluding Hyman from testifying
that he diagnosed C with temporary bone fragility.
         Finally, we address defendant’s claimed error with
regard to Hyman’s opinion on the diagnosis of child abuse
for C.7 At the OEC 104 hearing, Hyman testified that he had
never been board-certified as a child-abuse pediatrician,
had never taken a fellowship in child-abuse pediatrics, and
had not seen a clinical pediatric patient since 1999, but he
testified that he read all the child-abuse journals and that
was all he needed to do. He also testified that child-abuse
pediatricians do not use any techniques other than learning the teaching points of the “child-abuse community,” that
the field is not based on science, that he rejects the diagnostic criteria used by the child-abuse pediatric field, and
that child-abuse interpretation is “very subjective.” The
    7
      We reject the state’s assertion that defendant failed to preserve his claim of
error in this respect.
Cite as 

 (2022)                             509

trial court ruled that Hyman could not be qualified as an
expert for purposes of making a scientific child-abuse diagnosis of C, because he rejected the entire child-abuse pediatric field as not scientific. And, as the court explained, the
child-abuse diagnoses offered in the case by the state were
already admitted as scientific evidence.
           “We review for errors of law the question ‘whether
a trial court properly applied OEC 702 to decide whether an
expert is qualified to give testimony relative to a particular
topic.’ ” State v. Woodbury, 

, 114, 

(2017) (quoting State v. Rogers, 

, 

(2000) (emphasis in Rogers)). To be qualified as an expert on
a particular topic, the person “must have the ‘knowledge,
skill, experience, training or education’ to provide testimony
‘in the form of an opinion or otherwise’ regarding the ‘particular topic’ on which the person claims expertise.” State v.
Althof, 

, 

 (2015), rev den, 

 (2016) (quoting OEC 702). “The capacity to testify in
every case is a relative one, i.e., relative to the topic about
which the person is asked to make his statement.” 

 (internal quotation marks and brackets omitted).
         We conclude that the trial court did not err in limiting Hyman from testifying about a child-abuse diagnosis
for C. As the trial court recognized, the child-abuse diagnosis, as scientific testimony, was admitted at trial through
the state’s witness, who testified about her qualifications
and the scientific process for making a child-abuse diagnosis. Hyman testified that he read child-abuse journals and
rejected the criteria used to make child-abuse diagnoses
and, indeed, rejected the entire child-abuse pediatric field
as not based in science and being “very subjective.” Based
on that testimony, the trial court correctly determined that
Hyman was not qualified to give a child-abuse diagnosis
of C—he could not reliably apply the scientific principles
as an expert to C’s case because he entirely rejected them.
See Marcum v. Adventist Health System/West, 

, 

 (2008) (admissibility of a particular diagnosis using a differential diagnosis methodology “will turn
on whether the particular use of differential diagnosis to
determine causation meets the more general test of scientific
validity”). Hyman did not offer in his testimony a different
510                                          State v. Hilding

set of principles on which he was an expert and could apply to
make a child-abuse diagnosis or how he applied those principles to C. See Sanchez-Alfonso, 

 (discussing
what the expert must explain to establish a foundation for
scientific testimony). Thus, the court correctly determined
that Hyman was not qualified to give a child-abuse diagnosis. In addition, we reject defendant’s suggestion on appeal
that the trial court prevented Hyman from testifying about
“the other side” of the scientific thinking on child abuse. In
its ruling, the court expressly permitted Hyman to testify
about his criticisms of the child-abuse pediatric field, and
Hyman did voice some of those criticisms during trial.
         Convictions on Counts 11 through 14 reversed;
convictions on Counts 1, 2, and 7 reversed and remanded;
remanded for resentencing; otherwise affirmed.