### No. 14812 INTHE SUPREMECOURTOF THE STATEOF MONTANA 1981

STATEOF MONTANA, Plaintiff and Respondent,

BONNIE LEEHOFFMAN, DefendantandAppellant.

Appeal from: District Court of the FourthJudicial District, Inand for the County of Missoula Honorable Jack 

### L. Green,Judgepresiding Counsel of Record: ForAppellant: Garnaas,Hall,Riley & 

### Pinsoneault, Missoula,Montana For Respondent: Hon. Mike Greely,Attorney General, Helena,Montana RobertL. Deschamps 111,CountyAttorney, Missoula,

Montana Submittedon briefs: October 1,1981 Decided:January 14, 1982 

### Filed:

## JAN

# 14

# 1982Mr. JusticeGene B. Daly delivered theOpinion of theCourt. The defendant, Bonnie Lee Hoffman, was charged with negligent homicide under section45-5-104, MCA, based on her failure to provide medical attention for her three-year-old

son. She was convicted after a jury trial in the District Court of the Fourth Judicial District, Missoula County, and received a ten-year suspended sentence. Bonnie Lee Hoffman met Kinley Dobson in 1974 when theywere both living inCut Bank, Montana. The defendant

was sixteenatthe 

### time; Dobson was twenty-four and married. The defendant became pregnant by Dobson, and on February 16, 1975, their son, Chad, was born. Dobson and the defendant did not get married atthis 

### time but continued to see one anotherperiodically over the next few years. Dobson and the defendant had a volatile and violent relationship, which ended with the death of their young child. In August 1977, Dobson and the defendant married. They lived together in Missoula, Montana, where defendant had ajob asa key-punch operator ata bank. Sheworked from about 2:00 p.m. until 10:OO p.m. Dobson was unemployed and stayed athome with their two-year-old son, Chad. After about a month, the relationship again turned violent. Dobson frequently threatened the defendant and physically abused both her and the child. InDecember 1977, afterdefendanthad stayedwith friendsand ina shelter for battered women, she divorcedDobson. Dobson, nevertheless, continued toliveatthedefendant's apartment, staying with Chad while defendant worked. Defendant testified that she could not make Dobson leave.She had tried to lock him out of the house, but he always forced his way back in by coming through the windows or picking the lock on thedoor. On February 22, 1978, Chad was taken to the hospital by Dobson. Chad's body was covered with numerous bruises. Hehad a severelydistended stomach and was showing no sign of life. The child was pronounced dead at the hospital. The cause of his death was extreme shock resulting from a ruptured stomach. In statements tothe police and inher own testimony at trial, defendant outlined the role she played inChad's death. When shewoke up atabout 11:OO a.m. on February 22, Chad seemed fine. She said that she gave the child his lunch, including some cake. Defendant recalled thatDobson became angry because shehad givenChad cakewhen he had not finished his sandwich. She testified that while she was watching television, Dobson was whispering what she assumed

were threats to the boy and the boy responded by yelling, "No! No!" and hitting Dobson. Then the boy yelled, "Mommy, my tummy hurts." Defendant left for work at about 2:00 p.m. that afternoon. Dobson called her at work at about 3:00 p.m. saying that Chad had been vomiting. Defendant told Dobson to give Chad some Pepto-Bismol. At about 4:15 that afternoon, Dobson called again saying that Chad had fallen down

some stairswhile riding histricycle and was hurtbadly. Defendant did not believe that Chad was hurt badly because Dobson called her at work many times each day, trying topersuade her tocome home. Dobson would generally say that she should come home because Chad was hurt. Thedefendant told Dobson she would be home for her break at 5:00 p.m. Defendant returned home about 4:50 that afternoon. Chad was consciousbut pale. Hehad blood on hisnose and mouth, and his stomach was swollen. Chad went limp when the defendant placed him in his high chair and looked, according to defendant, "exhausted" and "uncomfortable.

### " Also, according to defendant, he was abletodrink a small amount of Seven-Up. Not recognizing that Chad was seriously ill, defendant when back towork at approximately 5:30 p.m. As soon

as she arrived atwork, she received a message that Dobson had called and he was taking Chad to Saint Patrick's Hospital. Defendant called the hospital to make sure that Dobson was there and then left. Chad showed no signsof lifewhen Dobson brought him into thehospital at6:00 p.m. The doctors intheemergency

room tried to revive the boy, but at 6:45 p.m. Chad was declared legallydead. The doctor on duty at the emergency room when Chad

was brought in testified that Chad had bruises on nearly every part of his body--his legs, buttocks, back, face and arms--and that he was in extreme shock. The doctor further testified thatforty-five minutes prior toChad's arrival at the hospital, it would have been obvious that he was seriously ill. A pathologist performed an autopsy on the child's body the day after his death. The pathologist testified that the bruises on the child's stomach were about the same age as the others and had occurred two to fivehours before death. The large bruise on the child's stomach, according

### to the pathologist, was caused by a blunt force. The pathologist further testified that there was evidence of prior injuries both to the child's skull and stomach. Defendant raises two issues on review: (1)whether there is sufficient evidence to support the jury's verdict that she was guilty of negligent homicide because she failed to provide medical attention for her small child; and (2) whether the District Court erred by admitting into evidence color slides of the dead child taken by the pathologist prior to the autopsy. Because there is substantial evidence to support the verdict and because the probative value of the slides outweighed any prejudicial effect, the defendant's conviction is affirmed. Under section 40-6-211, MCA, a parent entitled to custody of 

### a child must provide the child with support and education suitable to his circumstances. In State v. Mally (1961), 139 Mont. 599, 366 P.2d 868, we concluded that the failure to obtain medical aid for one who is owed a duty is

a sufficient degree of negligence as to constitute involuntary manslaughter, provided death results from a failure to act. 366 P.2d at 872. Likewise, in State v. Bischert (1957)

### , 131 Mont. 152, 308 P.2d 969,we noted that an omission to perform an act required by law can be the basis for manslaughter. See also, State v. Parmenter (1968), 74 Wash.2d 343, 444 P.2d 680; Palmer v. State (1960), 223 Md. 341, 164A.2d 467; and for a discussion of homicide based on failure to provide medical attention see, 100A.L.R.2d 483. Thedefendant here would be guilty of negligent homicide if, by failing to provide medical attention for her son, shedisregarded a risk of which she should have been aware, and the riskwas sogreat that todisregard it was a grossdeviation from a reasonable standard of conduct. See section 45-5-104, MCA, and section45-2-101(37), MCA. The factssurroundingChad's death support thejury's finding that defendant grossly deviated from a reasonable standard of care when she failed to provide medical attention for her three-year-old son. Defendant's own testimony, the testimony of the doctors inthe emergency room, and the testimony of thepathologist show thaton February 22, 1978, Chad was seriously ill at5:00 p.m. when defendant came home for her break. According tothe emergency room doctors, the seriousness of Chad's injuries would have been obvious to anyone. Further, they testified that had Chad been brought to the hospital while conscious and able to drink liquids, inalllikelihood hislifecould have been saved. By disregarding the seriousness of Chad's injuries-- the bruiseson hisbody, hisvomiting, theblood on hisnose and mouth, thedistentionof hisstomach, hispallor and the dilationof hiseyes--defendant acted negligently within the meaning of section45-2-101(37), MCA. Defendant refused to acknowledge to herself that Chad was seriously ill. The record shows ample proof of Chad's obvious need for medical

care and defendant's failuretoprovide it. Defendant next contends that the admission of color slides taken by the pathologist prior to the autopsy were too prejudicial and were submitted only to arouse the sympathies of the jury. Defendant claims that the color slides were not necessary since the black and white photographs of the child taken by a policeman at the hospital

### were sufficient to show Chad's death. Citing State v. Bischert, supra, defendant claims the color slides should have been excluded. It is well established in this state that the trial court has the discretion to allow into evidence duly verified photographs to aid the jury in its fact-finding process. State v. Mackie (1981),

# -Mont. 

## - , 622 P.2d 673, 38 St.Rep. 86. As we stated in the often-quoted case of Fulton v. Choteau County Farmers' Co. (1934), 98 Mont. 48, 37 P.2d 1025, 1029: 

# ".

.. photographs stand on the same footing as diagrams, maps, plans, and the like, and as a general rule, whenever relevant to describe a person, place, or thing, they are admissible for the purpose of explaining and applying the evidence and assisting the court and jury in understanding the case." Here, because the color slides showed the extent of Chad's injuries more clearly than the black and white photographs, they helped the jury to determine the reasonableness of the defendant's actions. While we found that admission of the color slides in Bischertwas reversible error,we emphasized that failure to provide medical carewas not in issue. Here, the defendant's failure toprovide medical attention is the central and controlling issue. Further, the pathologist in Bischert said he did not need the colored slides to explain his findings. Here, the pathologist explicitly testified that he preferred to use his own color slides in order to be as accurate as possible. The color slides are therefore admissible since their probative value outweighed any prejudicial effect they may have had. See Statev. O'Donnell (1972), 159Mont. 138, 496The judgment

### of theDistrict Court is affirmed.

We concur: