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                  THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________

Rockingham
No. 2018-0341

                       THE STATE OF NEW HAMPSHIRE

                                         v.

                                  JAMI CASTINE

                           Argued: January 9, 2020
                         Opinion Issued: April 24, 2020

      Gordon J. MacDonald, attorney general (Elizabeth C. Woodcock,
assistant attorney general, on the brief and orally), for the State.


      Christopher M. Johnson, chief appellate defender, of Concord, on the
brief and orally, for the defendant.

       BASSETT, J. The defendant, Jami Castine, was convicted on two
charges of first degree assault against the minor victim, see RSA 631:1, I(d)
(2016), as well as one charge of an enhanced felony version of second degree
assault against the victim’s brother, see RSA 631:2, I(a) (2016); RSA 651:6, I(e)
(2016). The Trial Court (Delker, J.) sentenced the defendant to a stand-
committed prison sentence of 10-to-20 years on one of the first degree assault
convictions, a consecutive 10-to-20 year sentence on the enhanced second
degree assault conviction, and a consecutive 10-to-20 year sentence on the
second first degree assault conviction that was suspended in its entirety for a
period ending 10 years from the defendant’s release. The defendant appeals
the trial court’s denial of her motion to set aside the jury’s verdict, and for
judgment notwithstanding the verdict, as to one of her two first degree assault
convictions. She argues that one of the first degree assault convictions must
be reversed because the evidence at trial was insufficient to exclude the
reasonable conclusion that the injuries and serious bodily harm alleged in the
two first degree assault indictments were the result of a single act. We agree
that one of her first degree assault convictions must be reversed, and remand.
We note that the defendant does not challenge her other convictions.

       The jury could have found the following facts. The victim’s mother
(Mother) has four children, including the victim. In November 2014, a friend
introduced Mother to the defendant, who had provided babysitting services to
the friend. Between March 4 and April 8, 2016, when the victim was
approximately eighteen months old, Mother left him in the defendant’s care for
varying periods of time.

       On March 28, Mother took the victim from the defendant because the
defendant told her he had been vomiting, refusing to eat or drink, and his lips
were very dry. Mother took the victim to Elliot Hospital where he was examined
by Dr. D’Aprix, an emergency room physician who diagnosed him with viral
gastroenteritis. He was given medication for nausea and an electrolyte solution
to treat dehydration. The victim returned to the defendant’s care on March 31.

       On April 8, the defendant left the victim in her boyfriend’s care at their
home while she went out. Approximately ten minutes after the defendant left,
the victim began crying or screaming. The defendant’s boyfriend testified that
he picked the victim up from his crib, and the child “went limp” and became
unresponsive. The defendant’s boyfriend summoned help from the defendant’s
family and the victim was taken to Exeter Hospital, later transferred to Elliot
Hospital, and finally “med-flighted” to Boston Children’s Hospital, where he
was examined on April 9 by Dr. Ianniello. According to the medical testimony
at trial, the victim had sustained, among other injuries, two subdural
hematomas, consisting of an area of bleeding on “the front top part on the left
side [of the brain] and . . . also one on the right side,” as well as “retinal
hemorrhages and a retinal detachment.”

        The defendant was convicted of first degree assault on one indictment
alleging that she recklessly caused “serious bodily injury to [the victim] . . . by
inflicting non-accidental trauma, in the form of retinal hemorrhaging and
detached retinas,” and on a second indictment alleging that she recklessly
caused serious bodily injury to the victim “by inflicting non-accidental trauma,
in the form of brain bleeds.” The defendant argues that “in the face of expert
testimony that one cannot know whether the brain and eye injuries resulted
from the same or separate blows, the State failed to prove the requisite
separate blows necessary to support the separate convictions and sentences.”




                                         2
       To convict the defendant of first degree assault as charged, the State was
required to prove, beyond a reasonable doubt, that the defendant “recklessly
cause[d] serious bodily injury to a person under 13 years of age.” RSA 631:1,
I(d). In State v. Lynch, 169 N.H. 689 (2017), we held that the unit of
prosecution for the form of simple assault criminalizing “[r]ecklessly caus[ing]
bodily injury to another,” RSA 631:2-a, I(b) (2016), was “each individual act of
causing bodily injury to another,” Lynch, 169 N.H. at 708. We concluded that
“[t]he plain language of the statute establishes that the legislature has
criminalized the act of recklessly causing bodily injury — not each individual
injury.” Id. Relying upon Lynch, the defendant contends, and the State does
not dispute, that the unit of prosecution under RSA 631:1, I(d) in this case is
each act of knowingly or recklessly causing serious bodily injury to a person
under 13 years of age, not each individual injury. We agree. Accordingly, to
convict on both first degree assault charges, the State was required to prove
that the victim’s “retinal hemorrhaging and detached retinas,” as charged in
the first indictment, and his “brain bleeds,” as charged in the second
indictment, were caused by separate acts.

       “A challenge to the sufficiency of the evidence raises a claim of legal
error; therefore, our standard of review is de novo.” State v. Vincelette, 172
N.H. 350, 354 (2019). “Although our general rule is that we will uphold a jury’s
verdict unless no rational trier of fact could have found guilt beyond a
reasonable doubt, we employ a different test when the evidence is solely
circumstantial.” State v. Woodbury, 172 N.H. 358, 363 (2019) (citation
omitted). “In the latter circumstance, to be sufficient to sustain the verdict, the
evidence must exclude all reasonable conclusions except guilt.” Id.

      The defendant argues that we must use the standard we apply in solely
circumstantial evidence cases because the State had no direct evidence that
she caused the victim’s brain and eye injuries by means of more than one
assault. We agree. As the defendant notes, “No eyewitness testified to seeing
[the defendant] assault [the victim] even once with such force as would cause
the brain and eye injuries.” Nor did the defendant confess to any such
assaults. Rather, the State’s case depended upon drawing inferences from
medical opinion testimony as to when the injuries occurred, the defendant’s
access to the victim at those times, eyewitness testimony as to the defendant’s
maltreatment of the victim and his fear of her, the exclusion of other possible
perpetrators, and the defendant’s attempts to “cover her tracks” with
implausible explanations for the victim’s injuries.

      Because the evidence as to an element of proof in this case was “solely
circumstantial, it must exclude all reasonable conclusions except guilt.”
Vincelette, 172 N.H. at 354.

      [T]he proper analysis is not whether every possible conclusion
      consistent with innocence has been excluded, but, rather, whether


                                        3
      all reasonable conclusions based upon the evidence have been
      excluded. We do not review each circumstance proved in isolation
      or break the evidence into discrete pieces in an effort to establish
      that, when viewed in isolation, these evidentiary fragments support
      a reasonable hypothesis other than guilt. Rather, we must
      consider whether the circumstances presented are consistent with
      guilt and inconsistent, on the whole, with any reasonable
      hypothesis of innocence.

Id. at 354-55 (citation omitted).

       The defendant argues that, because the medical experts could not
determine whether the victim’s injuries resulted from one blow or from multiple
blows, one reasonable conclusion consistent with the evidence and, therefore,
inconsistent with guilt on two first degree assault charges, is that a single blow
caused the eye injury and the brain injury. Therefore, the defendant argues,
the evidence is insufficient to sustain two first degree assault convictions. We
agree.

      The jury heard testimony from several physicians who treated the victim,
including Dr. D’Aprix and Dr. Ianniello, as well as physicians who had
reviewed the victim’s medical records, including Dr. Chan and Dr. Ricci. The
jury heard expert testimony that both types of injuries the victim sustained —
subdural hematomas and retinal hemorrhaging/detachment — could result
from the same mechanism and that those injuries commonly occur together.
Several medical experts opined that the injuries could have been the result of a
single inflicted trauma or separate inflicted traumas, and that it was not
possible to determine with any certainty whether the injuries with which the
victim presented on April 8 occurred at the same time or separately.

        Dr. Ianniello stated: “I think unfortunately we can’t say whether this all
happened in one incident or if there was repeated trauma.” She specifically
testified that whether the bleeding in the victim’s brain had been the result of
one or multiple events, the presentation would have been the same and agreed
with counsel that “[i]t would not be possible to determine [from the CT scans
taken on or after April 8] whether [the victim] had any preexisting subdural
hematomas because if there was a prior [subdural hematoma], the blood would
just mix with the new blood and it’s difficult to tell about a preexisting
hematoma.” Similarly, when asked if she had an opinion as to whether the
victim’s injuries occurred at the same time or at different times, Dr. Chan
testified: “Commonly, all — all these things can occur with the same event.
They’re all . . . consistent with the acceleration deceleration injury, so given the
fact that it would be such a significant injury, commonly it would happen all
together.” And Dr. Ricci testified that “[t]ypically [subdural hematomas and
retinal hemorrhages] occur together,” and typically one would not see “that
degree of retinal hemorrhages without some form of brain injury.” When asked


                                         4
whether there is any way to determine chronologically when these two separate
traumas may have occurred or whether they came at the same time, he
testified: “No, I — I don’t think there’s any way to determine with any precision
when these injuries happened, other than the subdural hematomas were not
acute, not fresh.” None of the other experts testified to the contrary.

        The State readily admits that the medical evidence was not conclusive as
to the dates of the injuries. Nevertheless, the State argues that the defendant
made several statements from which the jury could have inferred she had
repeatedly hit the victim. In addition, the State points to evidence that the
victim was afraid of the defendant. The State also notes that Dr. Ricci testified
that “one can have subdural hematomas . . . without retinal hemorrhages,”
which the State argues “certainly left the possibility open that the injuries
happened on separate occasions.” Finally, the State contrasts Dr. Ricci’s
testimony that the victim presented with symptoms on March 28 “that could
have been related to pre-existing head trauma,” with Dr. D’Aprix’s testimony
supporting a finding that the victim did not present on March 28 with the
bruising of the upper and lower eyelid that was evident on April 8. The State
then concludes that this testimony shows that the victim “could have suffered
head trauma before his March 2016 emergency room visit and additional
trauma, causing the eye injuries, including retinal hemorrhaging, after that
visit.”

       We are not persuaded. Although the evidence relied upon by the State
might arguably support a finding that the defendant abused the victim on more
than one occasion, that evidence fails to exclude the reasonable conclusion
that the serious bodily injuries alleged in the two indictments were caused by a
single blow. As the defendant points out, statements that she made indicating
that the victim had been repeatedly assaulted by someone other than herself
could reasonably reflect a desire to explain bruising not causally-connected
with the serious bodily injuries alleged in the indictments. Similarly, evidence
of the victim’s fear of the defendant, while consistent with the victim having
been repeatedly abused, does not exclude the reasonable conclusion that the
serious bodily injuries alleged in the indictments resulted from a single blow.

       Nor are we persuaded by the State’s argument that the testimony of Dr.
Ricci and Dr. D’Aprix shows that the victim “could have suffered head trauma
before his March 2016 emergency room visit and additional trauma, causing
the eye injuries, including retinal hemorrhaging, after that visit.” On its face,
this argument fails. Proof that the victim “could” have suffered head trauma
before his March emergency room visit does not exclude all reasonable
conclusions other than guilt.

       The State relies upon Dr. Ricci’s opinion that the victim’s symptoms
presenting at his March emergency room visit “could have been related” to pre-
existing head trauma. Given the evidence in this case, determining whether


                                        5
the victim’s symptoms at his March emergency room visit were related to head
trauma requires the application of specialized medical knowledge. Accordingly,
the lay jury could not have concluded, based on evidence of the victim’s
symptoms, that the victim had suffered pre-existing head trauma absent expert
testimony supporting such a finding. Cf. State v. Martin, 142 N.H. 63, 65
(1997) (lay witness may not testify competently about a medical diagnosis, and
“may not draw conclusions which require application of specialized medical
knowledge”); People v. Buffington, 152 Cal. App. 4th 446, 455 (Ct. App. 2007)
(stating that “lay jury had no basis for offering a medical diagnosis”).

       Here, the State points to expert testimony that the victim “could” have
suffered pre-existing head trauma. “Could” is “used to indicate possibility.”
New Oxford American Dictionary 394 (3d ed. 2010). In the civil realm, where
facts need be proved only by a preponderance of the evidence, expert medical
testimony based on “could” has been held to lack the definiteness required to
meet even that lower burden of proof. See Kelly v. Cutch, Inc., 938 N.W.2d
102, 108-09 (Neb. Ct. App. 2019); Taglianetti v. Jo-Dee Corporation, 239 A.2d
192, 193 (R.I. 1968) (physician’s opinion expressed in terms of “could be
related” and “very possible” does not legally establish causation (emphasis
omitted)); Paulsen v. State, 541 N.W.2d 636, 643 (Neb. 1996) (“We have held
that expert medical testimony based on ‘could,’ ‘may,’ or ‘possibly’ lacks the
definiteness required to meet the claimant's burden to prove causation.”); cf.
Bronson v. The Hitchcock Clinic, 140 N.H. 798, 802 (1996) (quantum of expert
testimony necessary to survive a motion for directed verdict must be enough to
conclude that causal link “probably” existed).

       In this criminal case, where the evidence must meet the much more
demanding “proof beyond a reasonable doubt” standard, we conclude that the
expert medical evidence relied upon by the State in its brief is not sufficient to
sustain two first degree assault convictions. Dr. Ricci’s opinion that the
victim’s symptoms “could have been” related to pre-existing head trauma does
not exclude all reasonable conclusions except guilt. On the record before us,
the fact that the victim’s symptoms “could have been” related to pre-existing
head trauma does not exclude the reasonable conclusion that the symptoms,
in fact, were not so related. Accordingly, we conclude that, contrary to the
State’s argument, the evidence does not support a finding beyond a reasonable
doubt that the victim suffered head trauma prior to his March 28 emergency
room visit.

        Furthermore, although the State contends that the evidence would
support a jury finding that the victim “suffered head trauma” prior to his
March 28 emergency room visit, such a finding, standing alone, would be of
little value. In the absence of proof beyond a reasonable doubt that that head
trauma also resulted in the serious bodily injury alleged in the indictment,
specifically, the “brain bleeds,” the fact that the victim sustained head trauma
prior to the March 28 visit would not exclude the reasonable conclusion that


                                        6
the “brain bleeds” were the result of the same blow that caused the eye
injuries, a conclusion that is inconsistent with a guilty verdict on two first
degree assault charges.

        The State fails to point to any evidence that would support a jury finding
beyond a reasonable doubt that before the March 28 emergency room visit, the
victim suffered brain bleeds. Even if we agreed with the State that the evidence
supported a finding that the victim suffered head trauma prior to the March 28
visit, whether that head trauma resulted in brain bleeds is again a matter
requiring application of specialized medical knowledge. The only expert
testimony relied upon by the State is Dr. Ricci’s testimony that “one can have
 . . . bleeding on the surface of the brain without retinal hemorrhages.” That
testimony falls far short of opining that the victim was suffering from bleeding
on the surface of the brain at the time of the March emergency room visit.
Moreover, that testimony is only part of Dr. Ricci’s response. Dr. Ricci was
asked whether it was possible that the subdural hematomas occurred
independently from the retinal hemorrhages in this case. His full response
was:

       Typically they occur together. So I would say — we wouldn’t typically see
       that degree of retinal hemorrhages without some form of brain injury. So
       I — I think given in this case, they could well have happened at the same
       time. On the other hand, one can have subdural hematomas or bleeding
       on the surface of the brain without retinal hemorrhages, although the
       opposite is less true.

Thus, it is clear that Dr. Ricci was not opining that it was more probable than
not that the subdural hematomas occurred prior to the retinal hemorrhages.1

       Nor does the State point to evidence that would permit the jury to find,
beyond a reasonable doubt, that any head trauma suffered prior to the March
emergency room visit resulted in the “serious bodily injury” alleged. “‘Serious
bodily injury’ means any harm to the body which causes severe, permanent or
protracted loss of or impairment to the health or of the function of any part of
the body.” RSA 625:11, VI (2016). In this case, viewed in the light most
favorable to the State, there was evidence that on or before March 28, the
victim was pale, vomiting, not eating, dehydrated, had diarrhea, fever,
decreased activity level, and his eyes had been seen rolling in the back of his
head. However, Dr. D’Aprix, who diagnosed the victim on March 28 as having
viral gastroenteritis, testified that, when examined, the victim had no fever and
1 Indeed, the very next question asked of Dr. Ricci after he gave the response quoted above was
whether there was “any way to determine chronologically when these two separate traumas may
have occurred, that is, which came first and whether they came at the same time.” In response,
Dr. Ricci stated: “No, I — I don't think there's any way to determine with any precision when these
injuries happened, other than the subdural hematomas were not acute, not fresh [on April 8].”



                                                7
his pupils were normal. When asked whether it was “possible” that the victim
had both “the flu and a head injury,” he agreed that was possible, but
stipulated that in his opinion it would have been “a mild head injury.” The
evidence is undisputed that the victim responded well to the treatment he
received on March 28 — Dr. D’Aprix testified that he was much more active,
eating and drinking without further vomiting, and that he was stable for
discharge home. Mother testified that after leaving the hospital, the victim was
“feeling better,” eating, drinking, and playing, though he looked “a little tired.”
When asked how the victim was doing on March 30, she testified that “[h]e was
doing great.” She stated that “he was back to eating and drinking. He wasn’t pale,
took his normal naps, and up running around.” Dr. Chan, who reviewed the
records from March 28, testified that the victim’s improvement based on the
treatment he received that day was not consistent with his having a “severe
brain injury.”

       While evidence of serious bodily injury was presented to the jury, that
evidence related to the victim’s condition after he was hospitalized on April 8;
that is, after he had suffered both brain and eye injuries. None of that evidence
was tied to the symptoms with which he presented on March 28. Thus, even if
we were to assume that the victim did suffer head trauma prior to his March
28 visit, we would conclude that the evidence does not support a finding
beyond a reasonable doubt that that head trauma resulted in the “brain
bleeds” and serious bodily injury alleged in the indictment.

      In sum, we conclude that the evidence was insufficient to exclude the
conclusion that the injuries and serious bodily harm alleged in the two first
degree assault indictments were the result of a single act — a reasonable
conclusion that is inconsistent with a finding of guilt on both first degree
assault charges. Given the evidence in this case, the jury could not have
reasonably concluded that the victim’s injuries and serious bodily harm were,
beyond a reasonable doubt, the product of different acts. Accordingly, we
reverse the denial of the defendant’s motion to set aside verdict and for
judgment notwithstanding the verdict to the extent that it requested the trial
court to enter a judgment of not guilty on one of the two first degree assault
convictions, and remand.

                                                   Reversed and remanded.

      HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.




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