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State v. Hocevar6/19/2000
APPEAL FROM: District Court of the Sixteenth Judicial District, In and for the County of Custer, The Honorable Joe L. Hegel, Judge presiding.
Argued: October 1, 1998
Submitted: November 19, 1998
Susan Hocevar (Susan) was convicted by a jury of criminal endangerment with regard to her son Wesley Hocevar's (Wesley) ingestion of an overdose of Benadryl. She appeals from the judgment of the Sixteenth Judicial District Court, Custer County, finding by a preponderance of the evidence that Susan exemplified Munchausen Syndrome By Proxy (MSBP) and smothered her sons Zachary and Mathew, Jr. (Mathew) and considering that conduct in sentencing Susan for the criminal endangerment conviction. The District Court further found that she was not entitled to be classified a first-time nonviolent offender for sentencing purposes. Susan appeals from the final judgment entered as to the criminal endangerment conviction and from the District Court's denial of Susan's motion to dismiss counts III, IV, and V of the Information upon double jeopardy grounds.
We affirm in part and reverse and remand in part.
Issues
In reviewing the District Court's judgment we consider the following issues:
. Whether the evidence was sufficient to support Susan's conviction of the felony offense of criminal endangerment under § 45-5-207(1), MCA.
. Whether the jury was properly instructed on the elements of criminal endangerment.
. Whether Susan's motion for a new trial based on alleged juror misconduct was properly denied.
. Whether the videotapes of interviews with Wesley Hocevar should have been admitted into evidence.
. Whether the expert testimony on MSBP was properly admitted.
. Whether Susan's motion to sever counts I and II and counts III, IV, and V for separate trials was properly denied.
. Whether Dr. David Southall's testimony was properly admitted.
. Whether evidence concerning Zachary Hocevar's death was properly admitted pursuant to Rule 404(b), M.R.Evid.
. Whether considering the deaths of Mathew and Zachary Hocevar in determining Susan's sentence for criminal endangerment violated Susan's right to due process under Article II, Section 17 of the Montana Constitution.
. Whether Susan should have been classified a first-time, nonviolent offender for sentencing purposes.
. Whether Susan's renewed motion to dismiss counts III, IV, and V based on double jeopardy grounds was properly denied.
a. Whether Susan's motion to dismiss counts III, IV, and V for insufficiency of the evidence should have been granted, barring further prosecution pursuant to § 46-16-403, MCA.
b. Whether further prosecution of counts IV and V is barred by the hung jury on Count III.
c. Whether further prosecution of counts III, IV, and V is barred by § 46-11-503, MCA?
Facts
On the afternoon of May 21, 1992, Susan was baking cookies at the Hocevar family home in Miles City, Montana. Susan's then four-year-old son Wesley was not feeling well and complained that his head hurt, so Susan put two Children's Tylenol tablets or a dose of Tylenol elixir on the coffee table in the living room. At trial, Dr. Pezzarossi, who, with her partner Dr. Young, had been Wesley's and his deceased brother Mathew's pediatrician, testified that Susan later told her that there had been no water on the table. Pezzarossi also testified that Wesley was not able to swallow capsules without water. Susan testified at trial that Wesley had a cup of water. Also on the coffee table was
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