No. 14812 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

STATE OF MONTANA, 

Plaintiff and Respondent, 

BONNIE LEE HOFFMAN, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Missoula 

Honorable Jack L. Green, Judge presiding 

Counsel of Record: 

For Appellant: 

Garnaas, Hall, Riley & Pinsoneault, Missoula, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Robert L. Deschamps 111, County Attorney, Missoula, 

Montana 

Submitted on briefs: October 1, 1981 

Decided: January 14, 1982 

Filed: JAN 14 1982 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

The defendant, Bonnie Lee Hoffman, was charged with 

negligent homicide under section 45-5-104, 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 

they were both living in Cut Bank, Montana. The defendant 

was sixteen at the 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 at this time but continued to see one 

another periodically 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 a job as a key-punch operator at a bank. She worked from 

about 2:00 p.m. until 10:OO p.m. Dobson was unemployed and 

stayed at home 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. In December 1977, 

after defendant had stayed with friends and in a shelter for 

battered women, she divorced Dobson. 

Dobson, nevertheless, continued to live at the defendant'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 the door. 

On February 22, 1978, Chad was taken to the hospital 

by Dobson. Chad's body was covered with numerous bruises. 

He had a severely distended 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 to the police and in her own testimony 

at trial, defendant outlined the role she played in Chad's 

death. When she woke up at about 11:OO a.m. on February 22, 

Chad seemed fine. She said that she gave the child his 

lunch, including some cake. Defendant recalled that Dobson 

became angry because she had given Chad cake when 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 stairs while riding his tricycle and was hurt badly. 

Defendant did not believe that Chad was hurt badly 

because Dobson called her at work many times each day, 

trying to persuade her to come home. Dobson would generally 

say that she should come home because Chad was hurt. The 
defendant told Dobson she would be home for her break at 

5:00 p.m. Defendant returned home about 4:50 that afternoon. Chad was conscious but pale. He had blood on his nose 

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 

able to drink a small amount of Seven-Up. 

Not recognizing that Chad was seriously ill, defendant when back to work at approximately 5:30 p.m. As soon 

as she arrived at work, 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 signs of life when Dobson brought him 

into the hospital at 6:00 p.m. The doctors in the emergency 

room tried to revive the boy, but at 6:45 p.m. Chad was 

declared legally dead. 

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 that forty-five minutes prior to Chad'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 five hours 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, 164 A.2d 467; and for a discussion of homicide based on 

failure to provide medical attention see, 100 A.L.R.2d 483. 

The defendant here would be guilty of negligent homicide if, 

by failing to provide medical attention for her son, she 
disregarded a risk of which she should have been aware, and 

the risk was so great that to disregard it was a gross deviation from a reasonable standard of conduct. See section 

45-5-104, MCA, and section 45-2-101(37), MCA. 

The facts surrounding Chad's death support the jury'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 in the emergency room, and the 

testimony of the pathologist show that on February 22, 1978, 

Chad was seriously ill at 5:00 p.m. when defendant came home 

for her break. According to the 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, 

in all likelihood his life could have been saved. 

By disregarding the seriousness of Chad's injuries-- 

the bruises on his body, his vomiting, the blood on his nose 

and mouth, the distention of his stomach, his pallor and the 

dilation of his eyes--defendant acted negligently within the 

meaning of section 45-2-101(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 failure to provide 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 

Bischert was reversible error, we emphasized that failure to 

provide medical care was not in issue. Here, the defendant's 

failure to provide 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 State v. O'Donnell (1972), 159 Mont. 138, 496 
The judgment of the District Court is affirmed. 

We concur: