State v. Ruiz

2014 UT App 143
_________________________________________________________
THE UTAH C OURT OF APPEALS
STATE OF UTAH ,
Plaintiff and Appellee,
v.
D ANIELLA R UIZ,
Defendant and Appellant.
Opinion
No. 20090466-CA
Filed June 19, 2014
Fourth District Court, American Fork Department
The Honorable David N. Mortensen
No. 071100146
Margaret P. Lindsay and Douglas J. Thompson,
Attorneys for Appellant
Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellee
J UDGE STEPHEN L. R OTH authored this Opinion, in which
J UDGE J AMES Z. D AVIS and S ENIOR J UDGE J UDITH M. BILLINGS
concurred.1
ROTH, Judge:
¶1 	The 	State 	charged 	Daniella 	Ruiz 	with 	depraved
indifference murder and reckless child abuse homicide after an
infant died in her care and an autopsy revealed that the infant’s
internal injuries were consistent with shaken-baby syndrome.
1. The Honorable Judith M. Billings, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).

State v. Ruiz
20090466-CA 	2 	2014 UT App 143
Before Ruiz’s trial, the Utah Department of Child and Family
Services (DCFS) took Ruiz’s children into protective custody and
conducted an investigation. DCFS ultimately dismissed its case in
juvenile court, but not before making a supported finding of child
abuse against Ruiz in connection with the infant’s death. At trial,
the district court decided that Ruiz’s testimony about the DCFS
investigation implied that DCFS had found her innocent of any
wrongdoing, and the court permitted a DCFS case manager to
testify in rebuttal regarding the agency’s child abuse findings.
Later, the court denied Ruiz’s request for a jury instruction on
negligent homicide and sent the case to the jury on the State’s
alternative charges of depraved indifference murder and reckless
child abuse homicide. The jury convicted Ruiz of reckless child
abuse homicide.
¶2 	On appeal, Ruiz argues that the caseworker’s rebuttal
testimony was improperly admitted and that she was legally
entitled to an instruction on negligent homicide. We affirm.
BACKGROUND2
¶3 	Maria Zamora dropped off her five-month-old son (Child)
at Ruiz’s home around 11:20 a.m. on January 4, 2006. Child was
recovering from an illness that Zamora had first noticed the day
after Christmas, but by early January he seemed to be on the
mend; that morning, Child was “playing, moving his hands and
his feet,” and feeding without any difficulty. Child was asleep
when Zamora arrived at Ruiz’s home, so she brought him inside
in his car seat. Before Zamora left for work, she noticed that Child
2. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict, and we recite the facts accordingly.” State v.
Johnson, 821 P.2d 1150, 1153 (Utah 1991) (citations omitted). But
when analyzing whether Ruiz was entitled to a lesser-included-
offense instruction on negligent homicide, we construe the facts
in the light most favorable to Ruiz. See infra ¶ 22.

State v. Ruiz
20090466-CA 	3 	2014 UT App 143
“was breathing fine” and moved a little as she carried the car seat
from her car to the home.
¶4 	According to Ruiz, she did not want to babysit that day.
She had an ear infection, her children were sick, and she was
recovering from a migraine headache she had the night before.
She was also worried that she might be pregnant—something her
doctor had urged her to avoid for at least one more year. After
Zamora left, Ruiz put the car seat on the floor in the master
bedroom so Child could continue sleeping while she tended to her
two children. She checked on Child periodically to make sure he
was still asleep. When she heard him stirring, she picked him up
because she “thought he was uncomfortable” and noticed he
needed a new diaper. Child was “very sleepy” while Ruiz
changed his diaper and clothes, but she said that she did not
notice anything that indicated he was unwell. Before she was
done, Ruiz’s children came into the room and her three-year-old
son started jumping on the bed. As Ruiz’s younger son began to
cry, Child seemed frightened, and Ruiz struggled to comfort the
baby while encouraging her children to leave the room. The State
alleged that at some point after Zamora left and before Ruiz’s
husband returned from a job interview, Ruiz responded to her
mounting stress by violently shaking Child.
¶5 	When Ruiz’s husband arrived shortly before 1:00 p.m., he
saw Child in the car seat and immediately noticed that something
was wrong. Ruiz picked him up and tried to feed him a bottle, but
Child would not open his mouth and his arm went limp. Ruiz
called 911. Minutes later, police and paramedics arrived and
found Child in full cardiac arrest. They rushed him to Utah Valley
Regional Medical Center where doctors attempted to stabilize
him before he was flown to Primary Children’s Hospital. The next
day, 	he 	was 	taken 	off 	life 	support 	and 	died. 	Physicians
determined that the most likely cause of Child’s death “was that
he 	had 	been 	hurt, 	physically 	harmed.” 	Specifically, 	they
concluded that “some rapid motion of the head” followed by a
“rapid stop” injured Child’s brain, causing the brain to swell and
die. The state medical examiner who performed Child’s autopsy

State v. Ruiz
20090466-CA 	4 	2014 UT App 143
concluded that he was likely “grabbed . . . around the lower
torso[,] . . . shaken . . . violently[,] and then tossed . . . or thrown
onto a bed.”
¶6 	The night before Child died, police visited Ruiz’s home to
investigate whether she was involved in his injuries. They spoke
with Ruiz for more than two hours, and she went to the police
station the next morning for additional questioning. During these
interviews, she told police that just before she called 911, she
gently shook Child in an attempt to wake him up, but she insisted
that she “didn’t shake the baby very hard because” she knows
“that’s bad for a baby.” Ruiz also admitted that Child was under
her exclusive care before he was rushed to the hospital, and she
told investigators that while she could “picture” herself hurting
Child, she did not know what had happened, and she offered that
she may have blocked out the memory. In March 2006, Ruiz was
charged with depraved indifference murder, or in the alternative,
reckless child abuse homicide.
¶7 	At trial, Ruiz asserted that Child had a bleeding disorder
that mimicked injuries doctors often see in children who have
been shaken. In support, she offered testimony from two expert
witnesses, Dr. Robert Rothfeder and Dr. John Graham. Dr.
Rothfeder 	testified 	that 	Child 	most 	likely 	died 	from 	“a
malfunction in the ability of the blood to clot, which resulted in
bleeding inside the head” that “rapidly evolved and caused the
cardio respiratory arrest and ultimately brain death.” He opined
that the disorder may have been caused by a vitamin K deficiency,
which can occur in breast-fed infants. But he acknowledged that
Child received a vitamin K shot at birth and that Child’s diet was
half formula and half breast milk. He also admitted that he had
not reviewed the CT scans showing the bleeding inside Child’s
head.
¶8 	Dr. Graham testified that “there had been a previous
bleed” in Child’s brain “as long as a month prior” to his admission
to the hospital. The old bleed and hemorrhaging in other areas of
Child’s body, Dr. Graham claimed, was evidence that Child died

State v. Ruiz
20090466-CA 	5 	2014 UT App 143
from a “spontaneous bleed” in his brain that was consistent with
a “[c]oagulation defect.” On cross-examination, he admitted that
he did not look at Child’s CT scans and that the radiologist at
Primary Children’s was in the best position to determine whether
there was enough intracranial bleeding to cause Child’s brain to
swell.
¶9 	The State’s experts testified that Child died from a “severe
acceleration/deceleration 	brain 	trauma” 	that 	resulted 	in 	“a
massive brain injury that caused his brain to swell and die.” Dr.
Richard Boyer, a pediatric radiologist at Primary Children’s
Hospital, showed Child’s CT scans to the jury and testified that
the 	injuries 	he 	observed 	were 	consistent 	with 	“injured 	or
damaged brain tissue.” He also noted the presence of what
appeared to be “an older hemorrhage” around Child’s brain but
said that the results of an autopsy would be more conclusive. Dr.
Todd Grey, Utah’s Chief Medical Examiner, testified that he “did
not see any evidence of old bleeding” in reviewing the results of
the autopsy and that he did not believe Child suffered from a
bleeding disorder because there was “a very distinct series of
hemorrhages and patterns of hemorrhage in this child, not the
kind of diffuse bleeding problems that would indicate this child
is going to bleed no matter what happens because he can’t clot
blood.” The assistant state medical examiner that performed the
autopsy and Child’s physicians at Primary Children’s agreed that
his internal injuries were consistent with a traumatic injury, not a
bleeding disorder.
¶10 	Ruiz testified in her own defense. After describing her
version of the circumstances surrounding Child’s death and the
subsequent 	criminal 	investigation, 	she 	recounted 	a 	DCFS
investigation conducted shortly after Child’s death. While she
acknowledged that DCFS removed her children from her home
for two days and did not permit her to be alone with them until
the investigation was complete several months later, Ruiz testified
that she never admitted to being negligent or abusive. She
described DCFS’s investigation, noting that DCFS had observed
her care for her children and had conducted interviews with her

State v. Ruiz
20090466-CA 	6 	2014 UT App 143
neighbors. She then stated that DCFS investigators “probably did
a better investigation . . . than [the] Provo Police and they closed
their case. They didn’t charge me with anything.”
¶11 	Over Ruiz’s objection, the State called Alicia Stoker—the
DCFS case manager assigned to the investigation—as a rebuttal
witness. She explained that when a case worker “feels that the
children are at risk,” courts can remove children from their home
or order protective supervision services. In this case, Stoker
testified that both steps were taken; Ruiz’s children were initially
removed from her home and then returned to her care contingent
on Ruiz completing a psychological evaluation and agreeing not
to be alone with her children without another adult present.
Stoker then explained that DCFS concludes an investigation by
making one of two findings: (1) supported, meaning “that the
allegations that were called in and investigated have enough
evidence that they would hold up in our system to be true,” or (2)
“without 	merit,” 	meaning 	“that 	there 	was 	not 	enough
information or support to keep those allegations.” After clarifying
that DCFS’s findings are not based on the same standard of proof
employed 	in 	criminal 	proceedings, 	Stoker 	testified 	that 	the
findings in Ruiz’s case “supported physical abuse . . . due to an
infant dying in her care according to the information that the
[case] worker got from the doctors and the hospital.”
¶12 	At the close of the evidence, the court instructed the jury
on the alternative charges of depraved indifference murder and
reckless child abuse homicide and denied Ruiz’s request for an
instruction on a lesser included offense of negligent homicide, a
class 	A 	misdemeanor. 	See 	Utah 	Code 	Ann. 	§ 	76-5-206(2)
(LexisNexis 2003) (current version at id. (LexisNexis 2012)). Ruiz
did not ask the court for an instruction on criminally negligent
child abuse homicide, which at the time of trial was a third degree
felony. See id. § 76-5-208(1)(b)–(c). The jury found Ruiz guilty of
reckless child abuse homicide. She appeals.

State v. Ruiz
20090466-CA 	7 	2014 UT App 143
ISSUES AND STANDARDS OF REVIEW
¶13 	Ruiz raises two issues on appeal. First, she argues that the
district court erred when it refused to instruct the jury on
negligent homicide. Specifically, she contends that “because the
elements 	of 	child 	abuse 	homicide 	and 	negligent 	homicide
overlap” and the evidence presented at trial “supports a rational
basis” that Ruiz harmed Child negligently instead of recklessly,
the court’s refusal to instruct the jury on negligent homicide
“denied her due process and statutory rights.” “Whether a jury
instruction on a lesser included offense is appropriate presents a
question of law,” so we review the trial court’s decision for
correctness. State v. Spillers, 2007 UT 13, ¶ 10, 152 P.3d 315; see also
State v. Burke, 2011 UT App 168, ¶ 18, 256 P.3d 1102.
¶14 	Second, Ruiz argues that the court wrongly admitted
portions of the DCFS case manager’s rebuttal testimony “that the
agency had made substantiated findings against Ruiz for physical
abuse . . . due to an infant dying in her care.” (Internal quotation
marks omitted.) Ruiz claims that this statement was irrelevant
and “substantially more prejudicial than probative” under rules
402 and 403 of the Utah Rules of Evidence. District courts have
“broad discretion in determining the nature and extent of rebuttal
evidence, and we review a district court’s ruling regarding the
nature and extent of such evidence for an abuse of discretion.”
State v. Martin, 2002 UT 34, ¶ 29, 44 P.3d 805.
ANALYSIS
¶15 	We conclude that 	Ruiz was not entitled 	to a 	lesser-
included-offense instruction on negligent homicide under the
circumstances of this case. We also conclude that Ruiz opened the
door to the DCFS case manager’s testimony and that the trial
court’s decision to admit it was not an abuse of discretion.

State v. Ruiz
20090466-CA 	8 	2014 UT App 143
I. Negligent Homicide Instruction
¶16 	A criminal defendant is entitled to an instruction on a
lesser included offense when (1) “the charged offense and the
lesser included offense have overlapping statutory elements” and
(2) “the evidence ‘provides a rational basis for a verdict acquitting
the defendant of the offense charged and convicting him of the
included offense.’” State v. Powell, 2007 UT 9, ¶ 24, 154 P.3d 788
(quoting State v. Baker, 671 P.2d 152, 159 (Utah 1983)); see also Utah
Code Ann. § 76-1-402(3), (4) (LexisNexis 2003). The district court
properly denied Ruiz’s request to instruct the jury on negligent
homicide because even though there is some overlap between the
elements 	of 	negligent 	homicide 	and 	reckless 	child 	abuse
homicide, there was no reasonable basis in the evidence for the
jury to convict Ruiz of negligent homicide while acquitting her of
reckless child abuse homicide.
A. 	Overlapping Statutory Elements
¶17 	A lesser offense is included within a charged offense only
if both offenses have overlapping statutory elements. Baker, 671
P.2d at 158–59. “This will depend on whether there exist[s] some
overlap in the statutory elements of allegedly included offenses
and whether the same facts tend to prove elements of more than
one statutory offense.” Powell, 2007 UT 9, ¶ 25 (alteration in
original) (citation and internal quotation marks omitted). We
begin, then, by examining the language of the pertinent statutory
provisions. Reckless child abuse homicide occurs when a person
“causes the death of a person under 18 years of age and the death
results from child abuse, as defined in Subsection 76-5-109(1).”
Utah Code Ann. § 76-5-208 (LexisNexis 2012).3 Section 76-5-109
defines child abuse as “inflict[ing] upon a child” any serious
physical injury or allowing another “to inflict serious physical
injury upon a child” while the child is in the person’s custody. Id.
3. Except where otherwise noted, we cite the current version of
the Utah Code where the relevant provisions have not changed in
any way material to our analysis.

State v. Ruiz
20090466-CA 	9 	2014 UT App 143
§ 76-5-109(1)(c), (2). A “serious physical injury” means any injury
that “seriously impairs the child’s health; . . . involves physical
torture; . . . causes serious emotional harm . . . ; or . . . involves a
substantial risk of death.” Id. § 76-5-109(1)(f)(i). As examples, the
statute lists bone fractures, burns, head injuries caused by blows
or shaking, “any conduct that results in starvation or failure to
thrive or malnutrition that jeopardizes the child’s life,” or conduct
that “causes a child to cease breathing.” Id. § 76-5-109(1)(f)(ii).
Child abuse can be inflicted knowingly, recklessly, or with
criminal negligence. Id. § 76-5-109(2)–(4).
¶18 	Negligent 	homicide, 	Ruiz’s 	proposed 	lesser 	included
offense, occurs when a person, “acting with criminal negligence,
causes 	the 	death 	of 	another.” 	Id. 	§ 	76-5-206(1). 	The 	word
“another” is broad enough to include children and therefore
seems to bring the criminally negligent death of a child within the
scope of negligent homicide. The State argues, however, that
“[b]ecause the child abuse homicide statute contains its own
negligence variant, negligent homicide is never an option when
death 	results 	from 	child 	abuse.” 	In 	other 	words, 	the 	State
contends that the statutory definition for criminally negligent
child 	abuse 	exhaustively 	proscribes 	all 	criminally 	negligent
conduct that could cause the death of a child, indicating the
legislature’s 	decision 	to 	punish 	child 	abuse 	homicide 	more
severely than other homicides. See State v. Williams, 2007 UT 98, ¶
12, 175 P.3d 1029 (“A legislature is clearly justified when it
determines that taking the life of another in the course of
committing an additional and distinct criminal act is . . . worthy
of more severe sanction than murder committed under other
circumstances.”); see also supra ¶ 12 (noting that at the time of
Ruiz’s conviction, negligent child abuse homicide was a third
degree 	felony 	while 	negligent 	homicide 	was 	a 	class 	A
misdemeanor).
¶19 	Ruiz argues that the statute’s definition of child abuse is
not as comprehensive as the State suggests. Rather, she contends,
“one could be guilty of negligent homicide for omissions, or a
failure to act” that results in a child’s death, but “child abuse

State v. Ruiz
20090466-CA 	10 	2014 UT App 143
homicide requires the defendant to inflict injury.” (Emphasis
added.) She also maintains that the elements of reckless child
abuse homicide and negligent homicide overlap in two respects.
First, “[e]ach offense requires causing a death,” and second, “the
definitions of negligence and recklessness overlap” because both
require “a gross deviation from the standard of care exercised by
an ordinary person.” See Utah Code Ann. § 76-2-103(3), (4)
(defining criminal negligence and recklessness as both involving
“a gross deviation from the standard of care that an ordinary
person would exercise”). In support of her position, Ruiz cites a
Utah Supreme Court case that held that the elements of first
degree murder overlap with the elements of felony murder even
though first degree murder punishes intentional killings and
felony murder may encompass unintentional killings. See State v.
Hansen, 734 P.2d 421, 424 (Utah 1986). She also points to language
in one of our cases recognizing that negligent homicide can be a
lesser included offense of reckless manslaughter because each
offense involves “a gross deviation from the standard of care” and
“[t]he sole difference is that [reckless] manslaughter requires that
the defendant was actually aware of the risk of death, while in
negligent homicide, the defendant was not, but should have been
aware of such risk.” State v. Day, 815 P.2d 1345, 1349 (Utah Ct.
App. 1991) (citation and internal quotation marks omitted). But
Ruiz has not cited any Utah case, and we have found none, that
directly addresses the issue presented here—whether negligent
homicide and reckless child abuse homicide have overlapping
statutory elements.
¶20 	With respect to deaths caused by child abuse, we agree
with the State that the legislature has designated child abuse
homicide 	for 	special 	treatment, 	thus 	precluding 	negligent
homicide from becoming a lesser included offense where the
cause of death falls within the statutory definition of child abuse.
But we believe Ruiz is correct that section 76-5-109’s child abuse
definition does not necessarily include all criminally negligent
conduct that could cause the death of a child. As we have
discussed, the statute defines child abuse as conduct that “inflicts
upon a child serious physical injury” or “causes or permits”

State v. Ruiz
20090466-CA 	11 	2014 UT App 143
another person to do the same. Utah Code Ann. § 76-5-109(2). As
examples of serious physical injuries, it lists bone fractures; burns;
head injuries caused by “blows” or “shaking”; or any other
conduct that causes a child to stop breathing, starve, or suffer
severe emotional harm. Id. § 76-5-109(1)(f)(ii).
¶21 	While 	there 	are 	certainly 	circumstances 	in 	which 	a
caregiver’s inattention or failure to act could constitute “conduct
that causes” a child to stop breathing, suffer emotional harm,
starve, or sustain other injuries, see id., the interpretive principle
of ejusdem generis provides that “catchall elements of statutory
lists may be understood as restricted to include things of the same
kind, class, character, or nature as those specifically enumerated,
unless there is something to show a contrary intent,” State v.
Bagnes, 2014 UT 4, ¶ 19, 322 P.3d 719 (citation and internal
quotation 	marks 	omitted). 	Here, 	the 	statute 	is 	replete 	with
examples of injuries caused by active abuse, like “blows, shaking,
or causing the child’s head to impact with an object or surface; . .
. use of a dangerous weapon”; or “placing a hot object upon the
skin or body of the child.” Id. § 76-5-109(1)(f)(ii). These examples
directly precede more general references to “any conduct” that
causes a child to starve, stop breathing, or suffer emotional harm.
Id. 	And 	where 	the 	statute 	refers 	to 	neglect, 	the 	pertinent
provisions discuss withholding food or “allowing another” to
inflict injury on a child in the person’s custody. Id. § 76-5-
109(1)(f)(ii)(J), (2). So mere inattention or poor supervision that
causes harm distinct from malnutrition falls outside the scope of
the class implied by the series of specific terms that precede the
statute’s catchall phrase. We therefore conclude that negligent
homicide and reckless child abuse homicide have overlapping
statutory 	elements 	and 	negligent 	homicide 	can 	be 	a 	lesser
included offense of child abuse homicide under the narrow
circumstance 	where 	the 	evidence 	reasonably 	supports 	a
conclusion that a caregiver’s criminally negligent omission or
failure to act caused the child’s death. See State v. Velarde, 734 P.2d
449, 451 (Utah 1986) (noting that the statutory elements of the
crime charged and a requested lesser included offense overlap
where the lesser included “offense is established by proof of the

State v. Ruiz
20090466-CA 	12 	2014 UT App 143
same or less than all of the facts required to establish the
commission of the offense charged”).
B. 	Rational Basis
¶22 	Ruiz would therefore be entitled to an instruction on
negligent homicide if there were a rational basis in the evidence
to acquit her of reckless child abuse homicide and convict her of
negligent homicide. See State v. Powell, 2007 UT 9, ¶ 24, 154 P.3d
788. This inquiry requires the trial court to view “the evidence in
the 	light 	most 	favorable 	to 	the 	defendant 	requesting 	the
instruction,” id. ¶ 27, and prohibits weighing credibility or
conflicting evidence, State v. Garcia-Vargas, 2012 UT App 270, ¶ 16,
287 P.3d 474. Instead, the district court “must . . . determine
‘whether there is a sufficient quantum of evidence to send [the]
issue to the jury.’” Id. (alteration in original) (quoting State v.
Kruger, 2000 UT 60, ¶ 14, 6 P.3d 1116). After carefully examining
the testimony and exhibits presented at trial, we conclude that the
trial court did not err in refusing to give a negligent homicide
instruction, because there is no rational basis in the evidence to
acquit Ruiz of reckless child abuse homicide and convict her of
negligent homicide.
¶23 	Ruiz argues that there are two reasonable interpretations
of the evidence consistent with a theory that she caused Child’s
death without committing child abuse: (1) Child had a preexisting
bleeding 	disorder 	and 	was 	in 	obvious 	distress, 	but 	Ruiz
negligently ignored him until it was too late to save him (the
neglect theory), and (2) Ruiz gently shook Child and exacerbated
a prior intracranial bleed, but the shaking was not violent enough
to satisfy the statutory definition of child abuse (the slight-
shaking theory). We begin by examining the evidence pertinent to
the medical claim that underlies both theories, i.e., that child’s
death resulted not directly from trauma, but from a rebleed of a
prior injury or a coagulant deficiency. Having concluded that
sufficient evidence exists to support such a theory, we then
separately address whether the evidence adequately supports
Ruiz’s claim that the jury could have acquitted her of reckless

State v. Ruiz
20090466-CA 	13 	2014 UT App 143
child abuse homicide and convicted her of negligent homicide
based on her neglect theory or slight-shaking theory.
1. 	Child’s Intracranial Bleeding
¶24 	Although 	the 	evidence 	was 	conflicting 	and 	strongly
disputed by the State, it supports the defense’s theory that a prior
intracranial injury began to bleed again, causing the Child’s brain
to swell and leading to his death.
¶25 	Defense expert Dr. Graham testified that “there had been a
previous bleed” within Child’s cranium that could have occurred
“as long as a month prior to [Child’s] final admission” to the
hospital. He opined that Child’s death was caused when this older
injury spontaneously began bleeding the day Child died and
Child’s coagulation defect prevented his blood from clotting until
there was enough blood built up around his brain that the
pressure caused it to swell and eventually die. But he also
admitted that he never looked at Child’s CT scans, and he agreed
that a radiologist would be in the best position to determine
whether there was enough intracranial bleeding to damage
Child’s brain. Dr. Rothfeder also testified for the defense that a
spontaneous bleed caused Child’s brain to swell and that the
progression of such an injury “depends on how rapidly the blood
is accumulating and how much the pressure in the head is
increasing 	following 	an 	injury.” 	But 	like 	Dr. 	Graham, 	Dr.
Rothfeder admitted that he never reviewed Child’s CT scans.
¶26 	In contrast, Dr. Boyer, a radiologist called by the State, had
reviewed Child’s CT scans and testified that there was only a thin
layer of blood around Child’s brain that was insufficient by itself
to cause the degree of swelling that caused Child’s death. And
although Dr. Boyer stated that the scans showed evidence of “an
older hemorrhage” around Child’s brain, he acknowledged some
uncertainty on that point and indicated that a pathologist could
provide more information. The state medical examiners—who are
both pathologists—testified that there was “no evidence” of an
old bleed in Child’s head, but defense expert Dr. Graham, also a

State v. Ruiz
20090466-CA 	14 	2014 UT App 143
pathologist, 	disagreed. 	There 	was 	also 	conflicting 	expert
testimony 	on whether Child’s 	injuries were consistent with
inflicted trauma or spontaneous bleeding, but experts agreed that
a partially healed intracranial bleed is susceptible to reinjury.
¶27 	Construing this evidence in the light most favorable to
Ruiz, see State v. Powell, 2007 UT 9, ¶ 27, 154 P.3d 788, we conclude
that there was a rational basis for the jury to conclude that Child’s
death resulted from an old intracranial injury rebleeding while
Child was in Ruiz’s care, causing his brain to swell and die, and
not from a traumatic brain injury that Ruiz inflicted on him by
violent shaking. We now examine whether, if the jury accepted
Ruiz’s theory of Child’s cause of death, there was a rational basis
in the evidence for the jury to have acquitted her of reckless child
abuse homicide and convicted her of negligent homicide.
2. 	Neglect Theory
¶28 	A defendant acts with criminal negligence when she
“ought to be aware of a substantial and unjustifiable risk” serious
enough that “the failure to perceive it constitutes a gross deviation
from the standard of care that an ordinary person would exercise
in 	all 	the 	circumstances.” 	Utah 	Code 	Ann. 	§ 76-2-103(4)
(LexisNexis 2012). And, ultimately, “criminal negligence requires
a causal connection between [the] defendant’s actions and the
ultimate result.” State v. Larsen, 2000 UT App 106, ¶ 20, 999 P.2d
1252. Consequently, for Ruiz’s neglect theory to justify a lesser-
included-offense instruction on negligent homicide, there must be
evidence that Ruiz failed to intervene despite a readily apparent,
unjustifiable risk of death and that her failure to act caused Child’s
death. See Utah Code Ann. § 76-5-206(1). We conclude that Ruiz
was not entitled to a negligent homicide instruction under her
neglect theory because even if the jury could have believed Ruiz’s
delayed response was criminally negligent, there is no rational
basis in the evidence from which the jury could have decided that
this delay caused Child’s death.

State v. Ruiz
20090466-CA 	15 	2014 UT App 143
¶29 	Ruiz argues that the trial evidence reasonably supports a
conclusion that she negligently ignored Child’s symptoms of
severe intracranial bleeding and that her neglect “played a role in
his death.” In support, she points to testimony from two experts
that any caregiver who was “the least bit observant” would notice
that a child suffering from a brain injury was in distress. Instead
of responding quickly to Child’s symptoms, Ruiz argues, her
statements to police indicated that she “sat down and watched TV
while she thought [Child] was asleep and . . . didn’t think
anything.” Ruiz contends that the jury could have believed that
her neglect caused Child’s death by subjecting his brain to twenty
to thirty minutes of oxygen deprivation, which would have
exacerbated his brain injury. She cites the testimony of Dr. Lori
Frasier, a pediatrician at Primary Children’s who treated Child.
She testified that as “the brain swells, [it] cuts off its own
circulation, doesn’t get enough oxygen, and the brain cells die.”
Paramedics also noticed that Child exhibited signs of oxygen
deprivation 	when 	they 	arrived 	at 	Ruiz’s 	home—he 	was
“discolored,” “purplish,” had no pulse, and was not breathing. At
the time, one paramedic believed that the Child could have had
twenty to thirty minutes of “downtime” before they arrived, and
this was a concern because “the quicker [they] can get to a
patient,” “the better chance [the patient] ha[s] of having 	a
successful outcome.” Finally, Ruiz cites testimony from Dr. Randy
Oliver, an emergency room physician at Utah Valley Regional,
that his role was to “stabilize” Child “to make sure that [his]
oxygen saturations [were] at least above 90 . . . so that you don’t
ultimately have brain damage.”
¶30 	Assuming without deciding that the jury could have
believed Ruiz’s delayed response was criminally negligent, there
is still no rational basis in the evidence for a conclusion that Ruiz’s
neglect caused Child’s death. Although two experts testified
about the relationship between prolonged oxygen deprivation
and brain injuries, none of the various experts who testified in this
case, whether for Ruiz or the State, stated that Child had any
chance of surviving the damage to his brain at the point the
symptoms would have become apparent to Ruiz. For example,

State v. Ruiz
20090466-CA 	16 	2014 UT App 143
Dr. Frazier testified that brain swelling kills patients because as
“the brain swells, [it] cuts off its own circulation, doesn’t get
enough oxygen, and the brain cells die.” But she never mentioned
whether Child’s chances of survival would have improved at all
had 	paramedics 	reached 	him 	sooner. 	Similarly, 	Dr. 	Oliver
testified that emergency room physicians try to prevent brain
damage by ensuring that patients have enough blood pressure to
deliver oxygen to the brain. But he noted that Child’s blood
pressure and other vital signs were “stable” before he was
transported to Primary Children’s, and he did not indicate that a
delayed response exacerbated Child’s injury.
¶31 	The only evidence that suggested Ruiz’s neglect could
have played a role in Child’s death was the testimony of a
paramedic who responded to Ruiz’s 911 call. In response to a
question about why paramedics would want to know how long
Child had been asleep, he stated, “That gives us an idea of how
resuscitable the patient is . . . . [T]he quicker we can get to
him, . . . the better chance we have of having a successful outcome
for him.” He also indicated that Child may have had anywhere
from twenty to thirty minutes of downtime before paramedics
arrived. But the first statement, however valid as a general
principle, does not support a reasonable inference that Child’s
specific outcome would have been different had Ruiz acted more
quickly. And when pressed about why he believed Child was
unattended 	for 	as 	much 	as 	thirty 	minutes, 	the 	paramedic
conceded that his memory was “not strongly reliable on that
point” and based mostly on a “[v]ague impression.” In fact, he
also 	testified 	that 	the 	oxygen 	deprivation 	symptoms 	Ruiz
identifies are noticeable “within just a couple of minutes” after a
person stops breathing.
¶32 	General assertions about prolonged oxygen deprivation
and brain damage are simply not enough to support a conclusion
that Ruiz’s delay of about twenty to thirty minutes in calling for
medical assistance once Child’s symptoms became apparent led
to his death. In State v. Warden, 813 P.2d 1146 (Utah 1991), for
example, the Utah Supreme Court found “ample evidence” of

State v. Ruiz
20090466-CA 	17 	2014 UT App 143
causation in a negligent homicide case based on expert testimony
that a doctor’s failure to hospitalize a baby made it “twenty times
more likely” that the baby would die. Id. at 1150–51. There was
also testimony that the baby “would have had better than a 99
percent chance of survival” had the doctor acted “in accordance
with the appropriate standard of care,” id., and that the baby’s
parents would have taken it to the hospital had the doctor not
advised them otherwise, id. at 1152–53.
¶33 	Warden, of course, involved a sufficiency of the evidence
claim, not a request for a lesser-included-offense instruction, so
Ruiz had a much lower evidentiary bar to clear than the defendant
in that case. And something less dire than the circumstances in
Warden might support a finding of causation in any event.
Nevertheless, Ruiz has not pointed to any material evidence from
a medical expert or Child’s physicians from which a jury could
reasonably have concluded that his brain damage may not have
been fatal had treatment been provided sooner. Rather, she relies
on evidence that suggests only a general relationship between
delay in treatment and fatal results without showing that Child’s
death in this case could have been averted had she reported his
condition earlier.
¶34 	As a consequence, we conclude that the evidence did not
support a jury instruction for negligent homicide on the basis of
Ruiz’s neglect in failing to seek medical treatment for Child’s
condition earlier than she did. Cf. State v. Larsen, 2000 UT App 106,
¶¶ 15, 20, 999 P.2d 1252 (holding in a negligent homicide case that
a defendant’s alleged intoxication and failure to use a turn signal
did not cause the victim’s death in a car accident because the state
did not show “any causal connection between the collision and
the alcohol . . . or defendant’s failure to activate his turn signal”).
3. 	Slight-Shaking Theory
¶35 	Ruiz 	is 	also 	not 	entitled 	to 	a 	lesser-included-offense
instruction under her slight-shaking theory. She argues that one
rational view of the evidence is that she “contributed to [Child]’s

State v. Ruiz
20090466-CA 	18 	2014 UT App 143
death by shaking him . . . and that the shaking was negligent, but
not 	reckless.” 	Ruiz 	cites 	Dr. 	Rothfeder’s 	testimony 	that 	a
“bleeding disorder makes things fragile so the bleeding can occur
spontaneously.” She also points to other testimony that Child had
an old hemorrhage at least two weeks prior to his death and a
coagulation defect stemming from a vitamin K deficiency. “If the
jury believed [Drs.] Boyer, Rothfeder, and Graham’s evidence of
an earlier hemorrhage and bleeding from at least two weeks
before the death,” Ruiz asserts, it “may have believed that [her]
admitted shaking . . . contributed to [Child]’s death by causing a
rebleed.” We are not persuaded, however, that this evidence
reasonably supports a negligent homicide conviction.
¶36 	No reasonable interpretation of the evidence supports a
conclusion that Ruiz committed negligent homicide by gently
shaking 	Child. 	To 	conclude 	that 	Ruiz 	acted 	with 	criminal
negligence, there must be some evidence that she should have
been “aware of a substantial and unjustifiable risk” serious
enough that “the failure to perceive it constitute[d] a gross
deviation from the standard of care that an ordinary person
would exercise in . . . the circumstances.” See Utah Code Ann.
§ 76-2-103(4) 	(LexisNexis 	2012). 	This 	standard 	poses 	two
problems for Ruiz under these facts. First, Ruiz would have to
show that her “slight shaking” of Child was criminally negligent.
But the shaking that Ruiz described to police seemed to be no
more than a relatively gentle attempt to awaken Child, not
something the jury could have concluded would amount to a
gross deviation from the standard applicable to a caregiver in the
circumstances. Nor was there evidence that Child’s symptoms
were such that even a reasonable caregiver should have known
that Child’s brain was in an unusually fragile state, much less that
her failure to perceive that was a gross deviation from the
standard of care that made her slight shaking of Child criminally
negligent.
¶37 	Second, and perhaps more significantly, even if her failure
to perceive the risk amounted to criminal negligence, Ruiz would
still have to identify evidence that she negligently shook Child in

State v. Ruiz
20090466-CA 	19 	2014 UT App 143
a way that was not “child abuse” within the scope of the child
abuse homicide statute. See supra ¶¶ 17–21. Under the statute,
child abuse includes the infliction of any serious physical injury
that “seriously impairs the child’s health; . . . involves physical
torture; . . . causes serious emotional harm to the child; or . . .
involves a substantial risk of death to the child.” Utah Code Ann.
§ 76-5-109(1)(f)(i) (LexisNexis 2012). And “intracranial bleeding,
swelling or contusion of the brain, whether caused by blows,
shaking, or causing the child’s head to impact with an object or
surface” is identified as a specific example of conduct that
qualifies. Id. § 76-5-109(1)(f)(ii)(B). Further, child abuse can be
committed knowingly, recklessly, or with criminal negligence. Id.
§ 76-5-109(2). Consequently, if Ruiz shook Child even though she
should have been aware of the risk that doing so could cause fatal
intracranial bleeding, her conduct would amount to child abuse
falling within the purview of the child abuse homicide statute,
and an instruction on negligent homicide would be unavailable.
See supra ¶¶ 17–21.
¶38 	In summary, we conclude that although the statutory
elements 	of 	child 	abuse 	homicide 	and 	negligent 	homicide
overlap, there is no rational basis in the evidence for the jury to
have 	convicted 	Ruiz 	of 	negligent 	homicide. 	No 	reasonable
interpretation of the evidence supports a conclusion that Ruiz’s
delayed response caused Child’s death or that Ruiz negligently
harmed Child in a way that did not amount to child abuse.
Consequently, the trial court did not abuse its discretion in
refusing to instruct the jury on negligent homicide.
II. Impeachment Testimony
¶39 	Ruiz’s second challenge is to an aspect of the State’s
rebuttal 	testimony 	that 	she 	argues 	unfairly 	prejudiced 	her
defense. Specifically, she claims that the district court abused its
discretion when it allowed Stoker, a DCFS case manager, to testify
about the agency’s administrative finding of substantiated abuse
in Ruiz’s case. See State v. Burke, 2011 UT App 168, ¶ 16, 256 P.3d
1102 (noting that appellate courts review the “decision to admit

State v. Ruiz
20090466-CA 	20 	2014 UT App 143
or exclude evidence” under rule 403 for “an abuse of discretion”
(citation and internal quotation marks omitted)). Although Ruiz
concedes that she opened the door, she argues that Stoker’s
testimony violated rules 402 and 403 of the Utah Rules of
Evidence 	in 	two 	ways. 	First, 	it 	improperly 	“bolstered 	the
testimony and evidence of the doctors and the hospital by
indicating that DCFS had evaluated their information and found
it to be credible.” And second, the statements indicated that an
agent of the state of Utah had already evaluated the evidence and
concluded that Ruiz had “committed physical abuse serious due
to 	an 	infant 	dying 	in 	her 	care.” 	(Internal 	quotation 	marks
omitted.) We conclude that the trial court did not abuse its
discretion in admitting the State’s rebuttal testimony.
¶40 	As a general rule, “it is proper to allow as rebuttal any
testimony which would tend to dispute, explain or minimize the
effect of evidence that has been given by one’s opponent.” State v.
Sanders, 496 P.2d 270, 274 (Utah 1972). When a defendant takes the
stand in her own defense, she “then becomes subject to being
treated the same as any other witness.” State v. Green, 578 P.2d 512,
514 	(Utah 	1978). 	Thus, 	she 	becomes 	vulnerable 	to 	“cross-
examination on any matter which would tend to contradict,
explain or cast doubt upon the credibility of [her] testimony.” Id.
And 	testimony 	from 	other 	witnesses 	that 	serves 	the 	same
objectives is admissible in rebuttal. Id. By taking the witness stand,
then, a defendant can “open the door” to the admission of
evidence that could otherwise be considered irrelevant or unfairly
prejudicial; 	she 	“cannot 	introduce 	potentially 	inflammatory
evidence and then later complain when the opposing party
attempts to rebut it.” State v. Mahi, 2005 UT App 494, ¶ 17, 125
P.3d 103.
¶41 	Ruiz concedes her testimony that “[DCFS investigators]
probably did a better investigation . . . than [the] Provo Police”
and “they didn’t charge me with anything” opened the door to
some level of rebuttal from the State. But she argues that the rules
of evidence still required the court to exclude any information in
Stoker’s testimony whose “probative value [was] substantially

State v. Ruiz
20090466-CA 	21 	2014 UT App 143
outweighed by a danger of . . . unfair prejudice.” Utah R. Evid.
403.
¶42 	As the district court noted, however, Ruiz’s own testimony
suggested 	“that 	the 	juvenile 	court 	[proceedings] . . . were
complete and essentially amounted to an exoneration.” Had the
district court excluded the portion of Stoker’s testimony that Ruiz
challenges on appeal, nothing in her testimony would have
dispelled Ruiz’s central inference. Indeed, with the exception of
her testimony regarding DCFS’s finding of child abuse, Stoker’s
testimony was largely consistent with Ruiz’s own description of
the investigation. Both Stoker and Ruiz testified that (1) DCFS
removed Ruiz’s children from her care, (2) the children were
returned after a shelter hearing, (3) the juvenile court ordered
protective 	supervision 	services, 	and 	(4) 	the 	juvenile 	court
eventually dismissed the petition against Ruiz. But Ruiz went
further 	when 	she 	also 	testified 	that 	after 	a 	comprehensive
investigation, DCFS investigators “closed their case. They didn’t
charge me with anything.” Stoker testified that while DCFS
employs a different standard of proof than what is required in
criminal 	proceedings, 	it 	does 	make 	findings 	of 	either
“support[ed]” 	or 	“without 	merit” 	when 	it 	concludes 	an
investigation. And in this case, according to Stoker, DCFS made
substantiated 	findings 	of 	child 	abuse. 	Thus, 	only 	Stoker’s
statement 	that 	the 	agency’s 	findings 	“supported 	physical
abuse . . . due to an infant dying in [Ruiz’s] care” effectively
rebutted 	Ruiz’s 	implication 	that, 	having 	completed 	a 	more
thorough 	investigation 	than 	the 	police, 	DCFS 	ultimately
concluded she was innocent.
¶43 	Ruiz cites State v. S.H., 2002 UT 118, 62 P.3d 444, and State
v. Moody, 2012 UT App 297, 288 P.3d 1092, for the proposition that
the district court had an obligation to appropriately tailor the case
manager’s 	rebuttal 	testimony 	in 	a 	way 	that 	minimized 	its
prejudicial 	effect. 	However, 	her 	reliance 	on 	those 	cases 	is
misplaced. First, in Moody, we held that testimony from the
defendant’s 	parole 	officer 	that 	handling 	investment 	money
violated his parole was irrelevant to charges that he solicited

State v. Ruiz
20090466-CA 	22 	2014 UT App 143
investments under false pretenses. 2012 UT App 297, ¶ 9. But
unlike the case manager’s testimony in this case, the parole
officer’s statement was not rebuttal testimony, and the defendant
never testified that his parole imposed no financial restrictions.
See id. ¶¶ 10–12. Consequently, the defendant never opened the
door to the statements we held were irrelevant, id., and Moody is
therefore inapposite.
¶44 	Second, S.H. involved otherwise inadmissible character
evidence 	that 	was 	not 	necessary 	to 	rebut 	the 	defendant’s
testimony. In that case, the court ruled before trial that any
evidence of the defendant’s past sexual conduct was inadmissible
in the context of the sexual abuse charges against him. 2002 UT
118, ¶¶ 5–6. At trial, the defendant opened the door to rebuttal
testimony when he testified that a phone conversation he had
with a witness during trial was “an innocent inquiry,” not an
attempt to influence her testimony. Id. ¶¶ 7, 28. The trial court
allowed the witness to describe the conversation even though the
defendant 	had 	discussed 	a 	prior 	sexual 	encounter 	between
himself and the witness. Id. ¶ 7. The Utah Supreme Court affirmed
the district court’s decision, noting that the prosecutor “refrained
from questioning” the witness “about the prior incident beyond
those facts pertinent” to the defendant’s credibility. Id. ¶ 30. Here,
the State never sought to introduce evidence of Ruiz’s character,
and the testimony she challenges on appeal is directly relevant to
rebut assertions in her testimony. In fact, the case manager’s
testimony was essential to rebut Ruiz’s assertion that DCFS had
essentially exonerated her after a thorough investigation, so its
probative value was very high in relation to the potential for
unfair prejudice. See Utah R. Evid. 403.
¶45 	We 	conclude 	that 	because 	Ruiz 	herself 	“introduce[d]
potentially inflammatory evidence” about DCFS’s investigation,
she cannot now complain about the State’s legitimate attempts to
rebut it. See State v. Mahi, 2005 UT App 494, ¶ 17, 125 P.3d 103.
Ruiz has therefore not shown that the district court abused its
discretion in admitting the DCFS case manager’s testimony.

State v. Ruiz
20090466-CA 	23 	2014 UT App 143
CONCLUSION
¶46 	We conclude that Ruiz was not entitled to an instruction on
negligent homicide because there was no rational basis in the
evidence to convict her of that offense and acquit her of reckless
child abuse homicide. We also conclude that testimony regarding
DCFS’s findings of child abuse was properly admitted because
Ruiz 	opened 	the 	door 	by 	claiming 	the 	agency 	found 	no
wrongdoing on her part.
¶47 	Affirmed.