PARKS v. << (1997)

William L. Parks was charged with intentionally abusing his son in violation of Neb.Rev.Stat. § 28-707 (Reissue 1995).   During the trial, Parks' trial counsel requested that the jury be given an instruction to allow it to consider the lesser charge of negligent child abuse.   The trial court denied the request, and the jury found Parks guilty of intentional child abuse.   He was sentenced to 18 to 36 months' imprisonment.   Parks now appeals.

FACTUAL BACKGROUND

On April 13, 1996, Parks and Grace Madsen took their then 6-month-old son to the University of Nebraska Medical Center  to be examined.   Doctors at the medical center examined the baby and found that his right thigh bone, or femur, had a “spiral fracture.”   The doctors also observed a bruise on the baby's right eye, and x rays revealed a fracture of the left tibia, or shin bone, which had nearly healed.

The police were notified, and Officer Steve Miller of the Bellevue Police Department proceeded to the hospital and began conducting an investigation.   As a result of his investigation, Parks was arrested and charged with intentional child abuse under § 28-707(1).

Dr. Jeffrey Zacharias, a third-year orthopedic surgery resident, also testified.   He stated that Madsen had told him that the baby's leg had gotten caught in the crib the night before (April 12) and that on the 13th, the baby was not moving his leg so they brought him in to be checked out.   Dr. Zacharias testified that the spiral fracture was suspicious to him because so much force is needed to cause this type of fracture that it is unlikely a 6-month-old child could cause it on his own.   Dr. Zacharias then opined that this type of injury would be inconsistent with a baby having gotten his leg caught in the crib.

Next, Officer Miller testified that during his investigation, Parks had

[i]ndicated to me at first that he didn't know how the injury occurred and he stated the injury had occurred because he had turned the baby [at a] ninety degree angle or ninety degrees in an effort to change the baby's diaper.   Then he told me he actually turned the baby this ninety degrees while holding the baby's right leg with his hand, actually turned the baby over at the same time with a rapid motion.

 Officer Miller also stated that Parks told him he heard a snapping noise as he turned the baby.   Officer Miller then stated that Parks had told him that the baby had been crying for quite some time, that Parks was angry, that he has a problem controlling his anger, and that he did not intend to hurt the baby.   Officer Miller testified that he had Parks use a stuffed animal to demonstrate how he had flipped the baby over.   According to Officer Miller's account of the demonstration, the baby was lying on his stomach, with his head to Parks' left and his feet to Parks' right as Parks entered the room.   Parks then grabbed the baby's right leg with his right hand, rapidly pulling the baby up, flipping him over, and rotating him 90 degrees all in one motion.

After Officer Miller's testimony, the State rested its case and the defense called its only witness, Parks.   Parks testified that Officer Miller used the stuffed animal to show Parks how Officer Miller believed the baby had been flipped over and that Parks had only said “it could have” happened that way because he did not have an attorney present.   Parks also testified that he was angry because of a fight he had with Madsen, not because of the baby's crying.   Parks then testified that he went into the baby's room three times on the night of April 12.   Parks said that the first time he went in was to change the baby's diaper.   He stated the baby was not crying at this time.   The second time he went into the room was because the baby was crying.   Parks picked up the baby and then noticed that the baby's leg was caught in the crib.   Parks said that he did not think he had hurt the baby while picking him up.   He went in a third time to turn the baby over.   The baby was crying as he went in.   Parks said that as he turned the baby, using both hands, he “felt” what he described as a creaking or popping noise.   Parks then stated that he did not tell anyone about the leg being caught in the crib bars until after he had talked to his lawyer.   The State recalled Officer Miller in rebuttal, who testified that Parks had said that he was mad at the baby rather than saying that he was mad at Madsen.

At the close of the evidence, a jury instruction conference was held.   Trial counsel for Parks requested that the jury be instructed on negligent child abuse.   The trial court denied the request, and the jury was instructed only on intentional child abuse.   Parks was found guilty of intentional child abuse, a Class IV felony, and sentenced to 18 to 36 months' imprisonment.

 ASSIGNMENTS OF ERROR

Parks' assignments of error are as follows:  (1) The court erred in refusing and failing to instruct the jury on the lesser-included offense of negligent child abuse, (2) the evidence is insufficient as a matter of law to support the jury's verdict of guilty of intentional child abuse, and (3) the trial court erred in imposing an excessive sentence.

STANDARD OF REVIEW

 On questions of law, an appellate court reaches a conclusion independent of the trial court.  Smith v. Smith, 246 Neb. 193, 517 N.W.2d 394 (1994).

 Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same:  In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence.   Such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction.  State v. Cody, 248 Neb. 683, 539 N.W.2d 18 (1995).

ANALYSIS

Jury Instruction.

Parks' first assignment of error stems from the trial court's refusal to instruct the jury on the possibility of finding Parks guilty of negligent child abuse under § 28-707(3).  Section 28-707 reads, in pertinent part:

(1) A person commits child abuse if he or she knowingly, intentionally, or negligently causes or permits a minor child to be:

(a) Placed in a situation that endangers his or her life or health;  or

(b) Cruelly confined or cruelly punished;  or

(c) Deprived of necessary food, clothing, shelter, or care.

․

 3) Child abuse is a Class I misdemeanor if the offense is committed negligently.

(4) Child abuse is a Class IV felony if the offense is committed knowingly and intentionally and does not result in serious bodily injury as defined in section 28-109.

(5) Child abuse is a Class III felony if the offense is committed knowingly and intentionally and results in serious bodily injury as defined in such section.

(Emphasis supplied.)

Despite an injury which caused the baby to be in a half-body cast, the State charged Parks with the Class IV felony rather than the more serious Class III felony which is applicable in the event of serious bodily injury.   See Neb.Rev.Stat. § 28-109(20) (Reissue 1995) (“[s]erious bodily injury shall mean ․ protracted loss or impairment of the function of any part or organ of the body”).

 It is the duty of the trial judge to instruct the jury on the pertinent law of the case, whether requested to do so or not, and an instruction or instructions which by the omission of certain elements have the effect of withdrawing from the jury an essential issue or element in the case are prejudicially erroneous.  State v. Williams, 247 Neb. 931, 531 N.W.2d 222 (1995).   A court must instruct on a lesser-included offense if (1) the elements of the lesser offense for which an instruction is requested are such that one cannot commit the greater offense without simultaneously committing the lesser offense and (2) the evidence produces a rational basis for acquitting the defendant of the greater offense and convicting the defendant of the lesser offense.  State v. Huebner, 245 Neb. 341, 513 N.W.2d 284 (1994).

Parks' counsel requested that the trial court instruct the jury on negligent child abuse, but the court refused the request.

 This court has previously held that negligent child abuse is a lesser-included offense of intentional child abuse.  State v. Fitzgerald, 1 Neb.App. 315, 493 N.W.2d 357 (1992).   It seems axiomatic that one who intentionally punishes a child, for example by burning with a cigarette, also is negligent, since his or her conduct obviously fails to meet the standard of how a reasonably prudent person would treat or discipline a child.

 We assume that the trial court rejected the request for submission of negligent child abuse on the grounds that there was not a rational basis in the evidence for submission of negligent child abuse to the jury.   The question is whether there was a rational basis in the evidence for Parks to be acquitted of intentional child abuse, but convicted of negligent child abuse.   It is this determinative question to which we now turn.

 We first look to the meanings of “intentionally” and “negligently” as used in § 28-707.  “Negligence” is doing something, or failing to do something, which an ordinarily prudent person would do, or not do, under the circumstances.  Sacco v. Gau, 188 Neb. 808, 199 N.W.2d 605 (1972).   Negligence must be measured against a particular set of circumstances present in each case.  Krehnke v. Farmers Union Co-Op. Assn., 199 Neb. 632, 260 N.W.2d 601 (1977).

 In contrast to negligence, “intentionally” has been defined as willfully or purposefully, and not accidentally or involuntarily.   State v. Schott, 222 Neb. 456, 384 N.W.2d 620 (1986) (defendant charged with cruelty to animals under statute prohibiting intentional or reckless “cruel mistreatment” or “cruel neglect,” Neb.Rev.Stat. § 28-1002 (Reissue 1979)).   The intent involved in conduct is a mental process and may be inferred from the conduct itself, the actor's language in reference to the conduct, and the circumstances surrounding the incident.  Id.

 This causes us to digress to the question of what has to be done intentionally under the child abuse statute, § 28-707:  Must the act be done intentionally which causes the injury, or, must the actor actually intend the injury which results?   This issue is often cast in the terminology of “specific intent” versus “general intent,” which the Nebraska Supreme Court has discussed extensively in State v. Williams, 243 Neb. 959, 503 N.W.2d 561 (1993).  Williams deals with the precise nature of the intent required in first degree assault cases.   In its discussion, the court held that first, second, and third degree assault are all general intent crimes, meaning that the actor need only intend the assault, not the injury which results.   In State v. Swigart, 233 Neb. 517, 446 N.W.2d 216 (1989), an appeal of the defendant's first degree assault conviction, the court rejected the defendant's claim that the evidence was insufficient to sustain the witnesses, that this spiral the course of the employment as well as arose out of it.   Accordingly, the Workers' Compensation Court trial judge did not err in awarding benefits.

CROSS-APPEAL

Varela has cross-appealed and assigns as error the failure of the trial court to grant attorney fees, interest on the final award, and costs.   Varela argues that medical bills in excess of $10,000 had been received by Fisher more than 30 days prior to trial and were recovered in the award and that a reasonable attorney fee “shall be allowed the employee by the Compensation Court in all cases where the employee receives an award.”   Brief for appellee on cross-appeal at 39.   The statutory authority for this proposition is alleged to be § 48-125.   Varela also argues that it naturally follows that if attorney fees are awarded, then interest must also be granted.   Varela's counsel conceded at oral argument that if we rule against Varela on the attorney fees issue, we also of necessity would have to rule against him with respect to interest and costs.   Section 48-125 provides that “fifty percent shall be added for waiting time for all delinquent payments after thirty days' notice has been given of disability” and that in the event compensation or medical payments go unpaid for 30 days after injury or for 30 days after notice has been given of the obligation for medical payment and proceedings are held before the Workers' Compensation Court, then “a reasonable attorney's fee shall be allowed the employee by the compensation court in all cases when the employee receives an award.”

It is this statutory provision under which Varela claims attorney fees.   Because the fees at issue in the cross-appeal relate only to services for the trial before the trial judge of the compensation court, we need not concern ourselves with those portions of § 48-125 which provide for fees for an employee in the event the employer unsuccessfully appeals to either a review panel of the compensation court, this court, or the Supreme Court.   The fees for the unsuccessful appeal to the review panel have been awarded, and we will award fees, upon compliance with Neb.Ct.R. of Prac. 9F (rev.1996), for the unsuccessful appeal to this court.

In his cross-appeal, Varela cites Behrens v. American Stores Packing Co., 234 Neb. 25, 449 N.W.2d 197 (1989), for the  proposition that whether a reasonable controversy exists is irrelevant for the determination of the award of an attorney fee after the trial which results in the award of workers' compensation benefits.   Although there is language to that effect in Behrens, it is not dispositive of the issue.   The Behrens case involved whether attorney fees could be awarded by the compensation court after remand by the Supreme Court for another rehearing.   The Supreme Court held that such fees were proper because even if the genesis of the rehearing were a remand, a rehearing is a rehearing.   The language of Behrens which leads Varela to argue that a reasonable controversy has nothing to do with whether he is awarded an attorney fee at the trial level is as follows:

The concept of the presence of a reasonable controversy is to be applied only to the determination as to whether an employee is entitled to the statutory penalties, not including attorney fees, as set out in § 48-125.

Attorney fees are allowable only pursuant to statutory authorization.   Savage[ v. Hensel Phelps Construction Co.], supra [208 Neb. 676, 305 N.W.2d 375 (1981)];  Harrington v. State, 198 Neb. 4, 251 N.W.2d 653 (1977).   Whether there is a reasonable controversy or not has nothing to do with the award of attorney fees in workers' compensation cases, except in cases where an employer has erroneously refused to make payments after having been given 30 days' notice of disability.

234 Neb. at 32, 449 N.W.2d at 201-02.

However, a more recent decision, Kerkman v. Weidner Williams Roofing Co., 250 Neb. 70, 547 N.W.2d 152 (1996), implicitly suggests that the above-quoted language from Behrens perhaps sweeps too broadly.   In Kerkman, the court stated:

We have consistently held that where there is no reasonable controversy, § 48-125 authorizes the award of attorney fees.  [Citations omitted.]   Whether a reasonable controversy exists pertinent to § 48-125 is a question of fact.   Mendoza v. Omaha Meat Processors, [225 Neb. 771, 408 N.W.2d 280 (1987) ].

․

More simply, to avoid the payment of attorney fees assessable under § 48-125, the employer must have a reasonable basis in law or in fact for disputing the employee's claim and refrain from payment of compensation.   Mendoza v. Omaha Meat Processors, supra.   Because there was some conflict in the medical testimony adduced at trial, reasonable but opposite conclusions could be reached by the Workers' Compensation Court.

250 Neb. at 80, 547 N.W.2d at 158.

 The court in Mendoza v. Omaha Meat Processors, 225 Neb. 771, 408 N.W.2d 280 (1987), holds that a reasonable controversy may exist where there is a question of law previously unanswered by the Supreme Court.   Mendoza was decided before the existence of this court, and thus we believe the Mendoza holding needs a “friendly amendment” to the effect that if a question of law has not yet been decided by the Nebraska Supreme Court or Court of Appeals, there is a reasonable controversy.   As earlier stated, there is no decided appellate case in this state on horseplay, and thus there is a reasonable controversy about the compensability of Varela's injury.   Consequently, attorney fees are not allowable at the trial level under § 48-125.   Since attorney fees are not allowable, interest on the final award cannot be awarded either.   § 48-125.

 Section 48-172 provides for the allowance of costs where an attorney fee is allowed under § 48-125.   Because no fee was allowed at the trial level and the costs at issue for depositions and witnesses were incurred at the trial level, they cannot be awarded.   Moreover, there is no authority under any circumstance to award the costs of an expert witness.   See Sherwood v. Gooch Milling & Elevator Co., 235 Neb. 26, 453 N.W.2d 461 (1990).   Thus, there is no authority for an award of the $450 fee for Varela's expert witness for his deposition.

CONCLUSION

We affirm the findings of the trial judge and the review panel that Varela sustained an injury caused by an accident arising out of and in the course of his employment.   We also affirm the lower court's conclusion that there was a reasonable controversy, which precludes an award of attorney fees, interest, and costs.   However, since Fisher and Union appealed to a review panel and did not obtain a reduction in the award and pursued a  second appeal to this court, again without reduction, we affirm the $2,000 attorney fee awarded by the review panel, and we will award Varela further fees for the appeal in this court under § 48-125 upon his compliance with Neb.Ct.R. of Prac. 9F (rev.1996).

Affirmed.

SIEVERS, Judge.