author: Judge JONES.

text:
    The PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of E.S., a Child, and Concerning S.S.K., Respondent-Appellant, and D.K., Special Respondent-Appellant.
    No. 01CA0334.
    Colorado Court of Appeals, Div. II.
    May 9, 2002.

      James D. Robinson, County Attorney, Rebecca Wiggins, Assistant County Attorney, Denver, Colorado, for Petitioner-Appellee.
    Shari Shink, Guardian Ad Litem.
    Jeffrey C. Koy, Guardian Ad Litem.
    Ledbetter & Associates, P.C., H.J. Ledbet-ter, Jr., Englewood, Colorado, for Respondent-Appellant.
    Lloyd L. Boyer, P.C., Lloyd L. Boyer, Englewood, Colorado, for Special Respondent-Appellant.
   Opinion by

Judge JONES.

S.S.K. (mother) and D.K. (stepfather) appeal from a judgment entered upon a jury verdict adjudicating the child, E.S., dependent or neglected. We affirm.

Two weeks after the mother and the stepfather were married, the six-year-old child and the stepfather, a truck driver, went on a twenty-six-day road trip. Upon their return, the child complained of being spanked frequently and had a faded bruise the size of a quarter on her upper thigh, which allegedly had been caused by a belt buckle while she was being spanked. Concerns about the spankings and the stepfather's treatment of the child led to the removal of the child from the home and the filing of a petition in dependency or neglect.

The petition initially named the mother and the stepfather as respondents. Shortly after it was filed, the child's natural father was located. Accordingly, the Department of Human Services filed a motion to amend the petition to name the father as a respondent and the stepfather as a special respondent, which was granted by a magistrate. Thereafter, the stepfather's requests to be reinstated as a respondent were denied by the trial court.

, The adjudicatory trial was to a jury. Because the stepfather was not a respondent, he was not allowed to present evidence or to cross-examine witnesses. The mother, however, called the stepfather as a witness and presented a vigorous defense to the allegations of abuse. The jury returned three of four special verdicts against the mother, finding as grounds for dependency and neglect, under § 19-8-102(1), C.R.S.2001, that she had mistreated or abused the child or tolerated or allowed another to mistreat the child without taking lawful means to stop or prevent the mistreatment or abuse; that the child's environment was injurious to her welfare; and that the child was lacking proper parental care as a result of the mother's acts or failure to act. Judgment was entered on the special verdicts, and this appeal followed.

As an initial matter, we note that the mother does not have standing to raise issues regarding the stepfather's party status and that the stepfather lacks standing to raise issues concerning the adjudication of the child vis-a-vis the mother. See People in Interest of A.L.B., 994 P.2d 476 (Colo.App.1999). Thus, the contentions raised by the parties' joint brief will be addressed only as to the specific party having proper standing.

I.

The stepfather contends that the trial court erred in refusing to allow him to participate as a party in the adjudicatory trial. We find no error.

A.

The stepfather argues that a stepparent has a fundamental liberty interest in the care, custody, and management of the stepchild and, therefore, is entitled to constitutional due process protections, including the right to be heard and to defend against a petition in dependency and neglect. We disagree.

A natural or adoptive parent has a fundamental liberty interest in the care, custody, and management of the child. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); B.B. v. People, 785 P.2d 132 (Colo.1990); People in Interest of A.M.D., 648 P.2d 625 (Colo.1982). However, we have found no authority extending a similar liberty interest to either a stepparent or a family unit ereated by the natural or adoptive parent and a stepparent, absent substantial evidence that the stepparent stood "in loco parentis" to the child. See, e.g., Orkis v. Burgos, 807 F.2d 6 (1st Cir.1986); In re Maricopa County Juvenile Action, 134 Ariz. 407, 656 P.2d 1268 (Ariz.Ct.App.1982); In re Tracy M., 137 N.H. 119, 624 A.2d 963 (1993); Gribble v. Gribble, 583 P.2d 64 (Utah 1978). But see In re Marriage of Smith, 7 P.3d 1012 (Colo.App.1999); People in Interest of P.D., 41 Colo.App. 109, 580 P.2d 836 (1978).

Further, to extend such an interest where, as here, the rights of both of the natural parents are intact could create an untenable conflict by pitting the rights of a stepparent against those of the natural or adoptive parents, which would compromise the welfare of the child. In re Maricopa County Juvenile Action, supra; see Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977); People in Interest of A.W.R., 17 P.3d 192 (Colo.App.2000); see also Petition of E.R.S., 779 P.2d 844 (Colo.1989). But see In re Custody of C.C.R.S., 892 P.2d 246 (Colo.1995)(where natural mother voluntarily relinquished custody of child one day after birth, nonparents granted standing to petition for custody).

Here, the stepfather and the mother had been married only six weeks before the child was removed from the home and the petition in dependency or neglect was filed. Further, the rights of the natural father were extant. Under these circumstances, we decline to extend the constitutional due process protections afforded a natural or adoptive parent to any relationship the stepfather may have had with the child.

Accordingly, the trial court did not err in restricting the stepfather's participation in the adjudicatory trial. Because, as discussed below, the stepfather was allowed to participate in the dispositional stage of the proceedings, we do not address a stepparent's due process rights, if any, at that stage.

B.

The stepfather also argues that, under the Children's Code, a stepparent must be named a respondent and be allowed to participate as a party in a dependency or neglect proceeding. He further argues that the People were bound by stipulation to allow his full participation in the adjudicatory trial. Again, we disagree.

Section 19-38-502(5), C.R.S.2001, provides that "[alny parent, guardian, or legal custodian alleged to have abused or neglected a child shall be named a respondent" in a dependency or neglect proceeding. It further provides that the county attorney, the city attorney of a city and county, or the special county attorney may name a stepparent as a respondent if that legal officer determines that it is in the best interest of the child.

In construing a statute, the word "shall" is given a mandatory connotation. See People in Interest of T.L.D., 809 P.2d 1120 (Colo.App.1991). Thus, contrary to the stepfather's assertion, a stepparent is not required to be named a respondent in a dependency or neglect proceeding. See § 19-8-502(5), C.R.S.2001. Rather, the county attorney is vested with discretion in deciding whether it is in the best interests of the child to name a stepparent as a respondent.

Under the cireumstances here, we perceive no abuse of that discretion. The mother and the stepfather were acquainted for only two and one half months before they were married. The stepfather's relationship with the child arose from his marriage to the child's mother only six weeks before the dependency or neglect proceeding was filed. Therefore, whatever legally protected interest the stepfather or the child may have had in their relationship, if any, was limited. Further, because the allegations of abuse by the stepfather formed the basis of the petition in dependency or neglect, they were fully litigated by the mother without the stepfather's full participation. Thus, under the cireum-stances here, the child's interests would not have been better served by allowing the stepfather to participate as a party.

Further, as a special respondent, the stepfather was allowed to participate as a party during the dispositional stage of the proceeding. Thus, he was able to contest any protective orders or treatment plan provisions that directly affected him as provided by § 19-3-502(6), C.R.8.2001.

Thus, the trial court did not err in limiting the stepfather's participation in the adjudicatory hearing.

IL.

The mother contends that the trial court violated her right to due process and abused its discretion in refusing to allow her expert witness to interview the child. She argues that the refusal was based on an erroneous finding that the interview would be traumatic to the child and that it denied her a meaningful opportunity to be heard. We find no error.

Due process requires that a parent be given notice of the termination proceeding, a meaningful opportunity to be heard and to defend, advice of counsel, and, if indigent, a court-appointed expert witness. Sections 19-1-105(2), 19-8-202(1), 19-3-602(2), 19-3-607(1), C.R.S.2001; People in Interest of A.E., 914 P.2d 534 (Colo.App.1996); People in Interest of M.P., 690 P.2d 1300 (Colo.App.1984). However, a parent's right to due process is subject to the power of the state to act in the best interests of the child. Section 19-3-604(8), C.R.9.2001; People in Interest of M.H., 855 P.2d 15 (Colo.App.1992). Thus, the statutory right to an expert witness may be limited in scope if necessary because of the physical, mental, or emotional needs of the child. People in Interest of M.H., supra. The extent of any such limitation is within the discretion of the trial court. People in Interest of T.R.W., 759 P.2d 768 (Colo.App.1988).

Here, several experts interviewed the child about her allegations of abuse. The interviews were either videotaped, audiotaped, or transcribed, and they were provided to the mother's expert witness for review. Despite having access to the interviews, the mother requested that her expert witness be allowed to interview the child to determine the veracity and dependability of the child's statements. The guardian ad litem objected to the mother's request, stating that the child's therapist believed it would be detrimental to the child. Relying on the guardian's statement, the trial court denied the mother's request for an interview; however, if granted leave to raise the issue during the next scheduled hearing.

One week later, during the hearing to determine the admissibility of the child's out-of-court statements under § 18-25-129, C.R.S. 2001, the child's therapist testified that the trauma of testifying in open court could be minimized by implementing certain safeguards and that the child would not be unduly traumatized by an interview with the mother's expert if issues concerning the abuse were delicately handled. Nevertheless, the therapist believed that an interview would be futile in light of the consistency of the child's statements, which had been made to several people over the course of three months.

At the close of the hearing, the mother renewed her request for an interview on the grounds that it would not be traumatic to the child. The trial court acknowledged the testimony of the child's therapist, but found that an additional interview would, in fact, be harmful to the child because of her age and her need for ongoing therapy. The trial court further found that an interview was not likely to result in any new information and that the mother could develop her case through eross-examination of the witnesses to whom the statements had been made. Accordingly, the trial court again denied the request for an interview.

During the termination hearing, the mother's counsel fully and effectively cross-examined the witnesses called to testify to the child's statements. In addition, the mother's expert witness, who had reviewed the interviews of the child and had listened to the child's testimony before being called to the witness stand, testified as to his opinion of the consistency and truthfulness of the child's allegations, and he underwent stiff cross examination concerning those opinions.

Under these cireumstances, we conclude that the mother was afforded a meaningful opportunity to develop her case without having interviewed the child. See People in Interest of M.P., supra. Thus, we do not perceive either a violation of the mother's right to due process or an abuse of discretion in the trial court's denial of her request for an interview with the child. See People in Interest of M.H., supra; People in Interest of T.R.W., supra.

III.

The mother also contends that the trial court erred in rejecting her proposed jury instruction on the issue of corporal punishment. Again, we find no error.

The record does not include a copy of the mother's proposed jury instruction. Furthermore, the instructions submitted to the jury accurately set forth the law concerning corporal punishment. See CJI-Civ. 4th 41:6 (Cum.Supp.1998); People in Interest of M.A.L., 37 Colo.App. 307, 592 P2d 415 (1976). Thus, the record fails to disclose any error, and we must presume that the trial court properly rejected the mother's tendered instruction. See Schuster v. Zwicker, 659 P.2d 687 (Colo.1983).

IV.

Finally, the mother contends that the evidence was insufficient to support the jury's special verdicts upon which the trial court adjudicated the child dependent or neglected. The mother argues that the bruise was de minimis, that it could have been caused when the child fell out of a bunk, and that she did not abuse or neglect the child. We disagree.

A child is dependent or neglected i#f a parent has allowed another to mistreat or abuse the child without taking lawful means to stop the mistreatment or abuse, if the child lacks proper parental care through the acts or omissions of the parent, or if the child's environment is injurious to his or her welfare. Section 19-8-102(1)(a)-(c), C.R.S. 2001.

As relevant here, § 19-1-108(1)(a)(D), C.R.S.2001, defines "abuse" or "child abuse or neglect" as "[alny case in which a child exhibits evidence of skin bruising" and either (1) the bruising is not justifiably explained, (2) the history given concerning the bruising is at variance with the degree of the bruising, or (8) the circumstances indicate that the bruising may not be the result of an accidental occurrence. If a child sustains a nonacei-dental injury as a result of corporal punishment, the reasonableness of that punishment is a question for the trier of fact. People in Interest of M.A.L., supra.

In reviewing a challenge to the sufficiency of the evidence, appellate courts are bound by a jury's findings and may not disturb a jury verdict unless it is clearly erroneous. Ajay Sports, Inc. v. Casazza, 1 P.3d 267 (Colo.App.2000). It is the jury's province alone to determine the credibility of the witnesses and the weight of the evidence, as well as the inferences to be drawn from it. Thus, a jury verdiet will not be disturbed on review if the record supports it. Ajay Sports, Inc. v. Casazza, supra.

Here, the evidence showed that the mother allowed the six-year-old child to go on a twenty-six-day road trip with the stepfather, whom she had known for only a short time. During the trip, the child received several spankings, delivered with either a belt or a cutting board. The successive spankings became increasingly severe. Before spanking the child, the stepfather conferred with the mother over the telephone. Further, the child was spanked in the home, before and after the trip, with the mother's approval.

The child testified that she received a quarter-sized bruise from a spanking during the trip with the stepfather. Although the mother's evidence suggested that the bruise may have been caused by a fall from a bunk in the semi-trailer and that the spankings were not abusive, the jury was free to determine the weight of the evidence and the credibility of the witnesses in the manner it deemed appropriate. Likewise, the jury was free to consider the size and extent of the bruising in determining whether the corporal punishment was reasonable. Finally, evidence that the mother allowed the stepfather to spank the child, both at home and while on the trip, is sufficient to support the jury's finding that the child was dependent or neglected under § 19-8-102(1)(a), (b), or (c).

Thus, the jury verdicts, having support in the record, will not be disturbed on appeal. See Ajay Sports, Inc. v. Casazza, supra.

The judgment is affirmed.

Judge PLANK and Judge WEBB concur.


source: Caselaw Access Project

author: ORME, Judge:

license: Public Domain

text:
    2000 Utah Ct. App. 188
    WEST VALLEY CITY, Plaintiff and Appellee, v. Wade HUTTO, Defendant and Appellant.
    No. 990211-CA.
    Court of Appeals of Utah.
    June 22, 2000.

      Steven D. Miller, Larsen & Rammell, West Valley City, for Appellant
    J. Richard Catten, West Valley City Attorney's Office, West Valley City, for Appellee.
    Before Judges BENCH, BILLINGS, and ORME.
   OPINION

ORME, Judge:

1 1 Appellant Wade Hutto appeals his conviction for assault in violation of Utah Code Ann. § 76-5-102 (1999), and his conviction for criminal mischief in violation of Utah Code Ann. § 76-6-106 (1999), both arising from a domestic dispute with his live-in girlfriend. Specifically, Hutto challenges the trial court's admission of the victim's out-of-court statements under the hearsay rule's "excited utterance" exception. We reverse defendant's convictions and remand for a new trial.

BACKGROUND

12 On October 25, 1998, Officer Jensen of the West Valley City Police Department was dispatched at approximately 9:00 a.m. to respond to a "late report" of domestic violence. Upon arrival at the destination specified by dispatch, Officer Jensen found the victim at her mother's apartment, about six blocks from defendant Hutto's residence. Officer Jensen observed that the victim was dressed in a t-shirt and jeans and was not wearing shoes or socks. Jensen also saw a small cut on the victim's forehead, red marks on her neck, a one- to two-inch-diameter red mark on her abdomen, and a four- or five-inch-diameter red mark on her back. The victim acknowledged she had called the police and during the next thirty to forty-five minutes told Jensen what had happened six hours earlier.

13 During the interview, the victim told Jensen that her live-in boyfriend, Hutto, had assaulted her between 3:00 and 3:30 a.m. that morning. She told Jensen that she was in bed asleep when Hutto woke her up and asked her to go get some drugs. She told Hutto it was early, she was tired, and she did not want to go. When she refused, Hutto got angry and started hitting and pushing her. The victim stated that during the argument Hutto (1) hit her in the side of her head, which knocked her head into another object, cutting her forehead; (2) hit her in the back with something, although she did not know what it was; and (8) had stood on her neck. The victim told Jensen that she had then left Hutto's residence and ran to her mother's house.

1 4 During the interview, Jensen asked the victim to fill out a witness statement and had to continually ask her to keep writing, as she was quite distracted and agitated. Only the first page of this statement was found and entered into evidence at trial because the remainder had been lost. This portion of the written statement was admitted for the limited purpose of helping determine whether the victim's statements were excited utterances. The statement, in the victim's handwriting, featured each "I" dotted with a small heart. Also during the interview, the victim's mother was present and was herself so agitated that another officer was "dealing with her, keeping her calm so that [Jensen] could talk to the victim."

T5 After concluding the interview, Jensen went to Hutto's residence to further investigate. Jensen found Hutto working in his garage. When asked about the incident, Hutto denied touching the victim and said, "she does it to herself" and "[she inflicts injuries upon herself." Officer Jensen observed wood chips scattered around the kitchen of the home and saw a pile of what appeared to be pieces of a desk or table. Later, this was determined to be the remains of a dresser the victim owned. At trial, Hutto took the stand and denied physically assaulting the victim in any way. He alleged that he had merely asked the victim about the stain he was going to use on the dresser he was restoring for her. He said she responded by throwing a dresser drawer on his foot, at which point Hutto went out to the garage to avoid a fight, and when he returned he found the dresser destroyed and the victim gone.

T6 At trial, the victim did not testify. Instead the prosecutor called only one witness, Officer Jensen, to relate what the vie-tim had said about the incident. The trial court allowed Jensen to recount the statements made by the victim, in order to determine whether the statements were excited utterances admissible under Rule 803(2) of the Utah Rules of Evidence. Hutto's counsel objected, stating that Hutto would be denied his rights to confront and cross-examine the victim-rights guarantied by the Utah and United States Constitutions-and that the statements were not excited utterances.

T7 During Jensen's testimony, she de-seribed the victim as "extremely upset," "very agitated," and "quite nervous." Jensen also described the victim as fluctuating emotionally throughout the interview, and stated that even during calm periods the victim would still shake and ery. During the more agitated periods, Jensen described the victim as unable to focus.

T8 The trial court concluded from these facts that the victim's statements about the events, many of which were in response to Jensen's questions, were excited utterances. Jensen was allowed to recount the story told to her during her interview with the victim, basically in its entirety. The only other trial witness was Hutto. Hutto was convicted and now appeals.

ISSUE AND STANDARD OF REVIEW

19 The sole issue on appeal is whether the trial court erred in admitting the victim's out-of-court statements to Officer Jensen under the hearsay rule's "excited utterance" exception. "We will not disturb a trial court's admission of evidence unless the court has clearly abused its discretion." State v. Kinross, 906 P.2d 320, 322-23 (Utah Ct.App.1995). See State v. Pena, 869 P.2d 932, 938 (Utah 1994).

NATURE OF THE "UTTERANCE"

110 Hearsay is defined under Rule 801(c) as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Utah R. Evid. 801(c). Hearsay statements are "generally excluded as evidence on the ground that, since the statements are not made under oath, and often only the witness to the declaration-not the declarant-is available for cross-examination at trial, the statement is generally unreliable." State v. Mickelson, 848 P.2d 677, 683 (Utah Ct.App.1992). See State v. Cude, 784 P.2d 1197, 1199 (Utah 1989). Moreover, the fact finder is denied the opportunity to observe the witness, so "the witness's perception, interpretation, memory, sincerity, and communication cannot be fully tested." Edward L. Kimball & Ronald N. Boyce, Uiah Evidence Law § 8-86 (1996).

{11 Sometimes, however, hearsay statements are made under cireumstances which offer substantial guaranties of trustworthiness, minimizing the likelihood of falsification. See Cude, 784 P.2d at 1199-1200 ("Some hearsay ... is considered reliable because of the cireuinstances under which the declaration is made."). "Excited utterances" are one such exception. See Utah R. Evid. 803(2).

112 Rule 803(2) recognizes an exception to the usual rule against admitting hearsay for "statement[s] relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition," whether or not the declarant is available to testify at trial. Utah R. Evid. 808(2). The reasoning is simple: the stress and excitement of the event suppress the declarant's ability to reflect or calculate self interest in a manner that would produce a lie. See State v. Kinross, 906 P.2d 320, 324 (Utah Ct.App.1995) (" 'The theory of [the excited utterance exception] is simply that cireumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication. ") (quoting Fed R. Evid. 808(2) advisory committee note). Lacking the "wherewithal to fabricate a falsehood, 'the cireumstances surrounding the making of the statement provide sufficient assurance that the statement is trustworthy and that cross-examination would be superfluous.'" Mickelson, 848 P.2d at 683 (quoting Idaho v. Wright, 497 U.S. 805, 819, 110 S.Ct. 3139, 3149, 111 L.Ed.2d 638 (1990)).

€13 The classic example of an excited utterance is a witness's exact recollection of the declarant's spontaneous "sound bite"-an un-coached blurting out-made while the declar-ant observed the exciting event or closely thereafter. See, e.g., United States v. Lawrence, 699 F.2d 697, 703 (5th Cir.) ("You're a dead man."), cert. denied, 461 U.S. 935, 103 S.Ct. 2103, 77 L.Ed.2d 309 (1983); State v. Bray, 106 Ariz. 185, 472 P.2d 54, 57 (1970) ("Daddy shot Mommy. Mommy is dead."); Layman v. State, 652 So.2d 373, 375 (Fla.1995) ("[Olh my God."); Walczak v. General Motors Corp., 34 Ill.App.3d 773, 340 N.E.2d 684, 687 (1976) ("It won't turn, Mom," referring to steering wheel); Wright v. Swann, 261 Or. 440, 493 P.2d 148, 149-50 (1972) ("Oh, God.... It wasn't your faultl.]"); State v. Smith, 1985 Tenn.Crim.App. LEXIS 3020, *5 (Feb. 14, 1985) ("the son-of-a-bitch cut me").

{14 The trial court exceeded its discretion in allowing Jensen to recount her entire interview with the victim, instead of limiting the admission of her testimony to particularized utterances. See State v. Thomas, 777 P.2d 445, 449 (Utah 1989). A witness simply cannot recount a victim's entire story under the guise of the excited utterance exception. The exception is much narrower than that, and is limited to truly "spontaneous outbursts." United States v. Wolak, 923 F.2d 1193, 1196 (6th Cir.), cert. denied, 501 U.S. 1217, 111 S.Ct. 2824, 115 L.Ed.2d 995 (1991). See also Thomas, 777 P.2d at 449 ("[Wle believe that we would be pushing the limits of the rule to hold admissible the entire contents of this ... interview as an 'excited utterance.'"). The Rule 803(2) hearsay exception permits excited utterances to be recounted, not the ongoing discourse of an excited individual. Certainly, a narrative overview of an officer's thirty to forty-five minute conversation with an excited victim cannot be equated to spontaneous, excited utterances like those listed above, even if the officer's synopsis relates to the exciting event. See Thomas, 777 P.2d at 449. Jensen's comprehensive narrative of her conversation with the victim goes well beyond a recounting of excited utterances. However, even if the trial court had properly limited the officer's testimony to particular statements made by the victim, the statements still could not properly come in as excited utterances given the record before us.

NATURE OF THE EXCITEMENT

115 In Utah, a three-pronged test is applied to determine whether a statement qualifies as an excited utterance. Hearsay statements fall within the excited utterance exception when "'(1) a startling event or condition occurred, (2) the statement was made while the declarant was under the stress of excitement caused by the event or condition, and (3) the statement relates to the startling event or condition'" State v. Cude, 784 P.2d 1197, 1200 (Utah 1989) (quoting State v. Barber, 747 P.2d 436, 438 (Utah Ct.App.1987)). Accord State v. Kinross, 906 P.2d 320, 323 (Utah Ct.App.1995). Regarding the second prong, the declarant has to have "remained" under the original, uninterrupted, and unsubsided stress of the startling event when making the statements. Kinross, 906 P.2d at 323. See State v. Mickelson, 848 P.2d 677, 684 (Utah Ct.App.1992).

116 The Utah Supreme Court has recognized that the second prong-whether the victim's statements were produced under the stress and excitement of the startling event-is "[ujsually the most difficult issue in determining the admissibility of an excited utterance." State v. Smith, 909 P.2d 236, 240 (Utah 1995).

[Whether the statement was uttered with a spontaneity produced by emotional excitement to a degree that provides a warrant of trustworthiness ... requires an evaluation of a variety of factors, including the nature of the startling event and the intensity of the excitement or other emotional effect on the declarant.

Id. Relevant factors considered previously by the Utah Supreme Court include the declar-ant's age, elapse of time between event and statement, the nature of the event, the apparent emotional state and intensity of emotional reaction, hospitalization, whether the statement was spontaneous or in response to a question, and the declarant's familiarity with his or her surroundings. See id.; State v. Thomas, 777 P.24 445, 449 (Utah 1989); Edward L. Kimball & Ronald N. Boyce, Utah Evidence Law § 8-45 (1996).

T17 These factors are considered rather subjectively for each individual declar-ant, as no two declarants have the same reaction to a given set of events. See State v. Smith, 315 N.C. 76, 337 S.E.2d 833, 841 (1990); State v. Carlson, 311 Or. 201, 808 P.2d 1002, 1011-12 (1991) (recognizing uniquely subjective nature of excited utterance test). Courts need only concern themselves with the particular declarant's actual stress and excitement given all the factors, not a reasonable person's response to the same situation. See, e.g., Kinross, 906 P.2d at 324 (subjective reliability of two-year-old victim's statement); State v. Mickelson, 848 P.2d 677, 686 n. 8 (Utah Ct.App.1992) (subjective reliability of statement made by elderly victim with debilitating mental condition, albeit five hours after incident); State v. Kaytso, 684 P.2d 63, 64 (Utah 1984) (per curiam) (subjective reliability of statement of rape victim even though it was in response to police questioning); United States v. Scarpa, 913 F.2d 993, 1017 (2d Cir.) (subjective reliability of statement of victim of beating who made statement five to six hours after startling event but while still being pursued by "hit man"), cert. denied, 498 U.S. 816, 111 S.Ct. 57, 112 L.Ed.2d 32 (1990); Ryan v. State, 899 P.2d 1371, 1377 (Alaska Ct.App.1995) (unreliability of statement of alleged rape victim, who, despite exhibiting evidence of great emotional stress, had spent several hours with her boyfriend before reporting rape).

1 18 Therefore, while the passage of a given amount of time after an exciting event might well be enough separation for one declarant's stress and excitement to recede, it might not be enough for another. See Cude, 784 P.2d 1197, 1200 (Utah 1989) ("Generally, the shorter the gap between the startling event and the utterance, the more reliable the statement.... However, the length of time between the event and the declaration is not a yardstick by which reliability can be measured."). Moreover, while a long delay between the exciting event and the utterance may be a valid indicator that the stress has worn off enough to " 'permit reflective thought'" for one declarant, another declarant may still be sufficiently nervous or distraught to rebut what amounts to a presumption that the stress has subsided. Mickelson, 848 P.2d at 685 (quoting Edward W. Cleary, McCormick on Evidence § 297, at 856 (8d ed.1984)). And, while being questioned by the police-itself a rather sobering experience-after being with a friend in a comfortable environment for a long time would almost invariably negate the requisite level of stress or excitement, see Ryan, 899 P.2d at 1377, not all declarants are the same and there may be exceptional cases.

119 This is not such an exceptional case. We note that the victim traveled six blocks to her mother's house, had approximately six hours before speaking to Officer Jensen, was in the familiar environment of her mother's home, and was being questioned by a police officer when making her statements. These factors "support a presumption that, at the time the statements were made, [the victim] was no longer under the 'stress of excitement caused by the event or condition'" Mickelson, 848 P.2d at 686 (quoting Utah R. Evid. 803(2)).

120 To rebut such a presumption, there must first be sufficient evidence presented by the party seeking to offer the excited utterance from which the trial court could logically conclude the stress and excitement of the startling event were in full force and effect for the declarant, without lapses, when the statement was made. See United States v. Sowa, 34 F.3d 447, 452-53 (7th Cir.1994) (permitting three year old's identification of assailant, notwithstanding twenty-minute delay, when child had been crying continuously before making identification), cert. denied, 513 U.S. 1117, 115 S.Ct. 915, 130 L.Ed.2d 796 (1995); State v. Cude, 784 P.2d 1197, 1200 (Utah 1989). The prosecution failed to present such evidence in this case.

1 21 Had the victim's mother been the trial witness, with the victim having made a specific statement upon bursting into the home still in a panicked state, it would present a very different question. In State v. Watts, 441 N.W.2d 395 (Iowa Ct.App.1989), for example, a case with cireumstances somewhat like the present case, the declarant ran to her sister's home immediately after being abused by her live-in boyfriend. See id. at 397-98. She burst into her sister's home without knocking, ran into her sister's bedroom and said, "Don't say a word." Her sister responded, "Oh, my God. What happened to you? Did [your boyfriend] do this?" And the declarant said, "Yes.... I'm going to call the police." Id. at 398. Unlike the present case, the statements in Watts, limited to a few short "sound bites," although solicited and made in a familiar environment, were bolstered by enough other factors showing sufficient spontaneity and reliability to be admitted. See id.

' 22 In this regard, it must be emphasized that not every statement made by an excited person is an excited utterance for purposes of the hearsay rule. Admittedly, Officer Jensen's testimony showed that the victim was excited. She was "extremely upset," "very agitated," and "quite nervous," fluctuating emotionally, shaking and erying, and unable to focus. This reaction is not unexpected, and, in fact, is a reaction mentioned in other cases in which the statements of the excited individual were still not considered excited utterances. See Cude, 784 P.2d at 1200 (recognizing defendant appeared nervous and agitated); United States v. Hall, 165 F.3d 1095, 1108-09 (7th Cir.) (statement not admissible as excited utterance because lapse of time militated against spontaneity, despite pale appearance and agitated state of declar-ant), cert. denied, 527 U.S. 1029, 119 S.Ct. 2381, 144 L.Ed.2d 784 (1999); Ryan, 899 P.2d at 1377; State v. Binder, 1990 Wisc.App. LEXIS 535, *7, 1990 WL 118017, *4 (Wisc.Ct.App.1990) (noting trial court recognized stress declarant was under but refused to find statement excited utterance).

123 Given the six-hour gap and the other factors in this case, the trial court exceeded its discretion in admitting the victim's statements without the prosecution first providing sufficient evidence that the stress of the exciting event was continuous and that the declarant never had time to reflect. See, e.g., United States v. Mitchell, 145 F.3d 572, 576-77 (3d Cir.1998) (holding anonymous note not admissible as excited utterance without proof that note's author was under stress of excitement while writing note); Miller v. Keating, 754 F.2d 507, 512 (3d Cir.1985) (finding error in admission of statements of unavailable witness when witness's excitement upon observing event not established). In this instance, the trial court based its decision on little more than an emotional reaction by the vice-tim that would be typical of almost any vie-tim retelling a personally traumatic event. It came to its conclusion without having any evidence before it regarding what happened in the intervening six hours the vietim spent at her mother's home-something about which the officer had no knowledge whatsoever. Did the victim's mother comfort her, get all the details of what had happened, and together talk out what they should do next? Did the victim have some hot tea, watch some late-night television, or get some sleep? Or was the victim uncontrollable, pacing or hiding behind her mother's couch the entire time for fear that Hutto was continuing to pursue? This important link in the chain is missing, and we simply have no way to know.

« 24 Without any indication of the victim's emotional state during this intervening time, there simply is not enough evidence to rebut the presumption that the stress had subsided with her relocation to a safe environment and the elapse of several hours. Onee a declar-ant has presumably calmed after an exciting event, the guaranties of trustworthiness are forever lost, and cannot be artificially revived by arousing the declarant's excitement a see-ond time, whether through a police officer's pointed questions, a mother's agitation, or just the experience of recounting (and thus perhaps reliving) the earlier trauma.

CONCLUSION

125 The trial court exceeded its discretion by permitting a synopsis of a thirty to forty-five minute dialogue between a questioning officer and a victim and not limiting the testimony to specific statements. Moreover, while the trial court found the victim exhibited intense excitement, the prosecution presented inadequate evidence to overcome the presumption, arising from the circumstances, that the victim's distress had subsided. Having concluded that Jensen's statements were inadmissible hearsay, we conclude there was insufficient evidence to convict Hutto and therefore are compelled to reverse and remand for a new trial or such other proceedings as may now be in order.

26 WE CONCUR: RUSSELL W. BENCH, Judge and JUDITH M. BILLINGS, Judge

      . The record does not reflect why the victim did not testify, why she was absent from the proceedings, whether she had been subpoenaed, or whether her whereabouts were even known.

      . The trial court acknowledged its concern with its inability to judge the victim's credibility, stating: "[Counsell, you are right that we are disadvantaged by not having the victim here today. I would very much like the opportunity to weigh her credibility.

      . "Utah courts 'may look to the federal advisory committee notes as well as federal court interpretation of the federal rules to aid in interpreting the Utah rules."" State v. Kinross, 906 P.2d 320, 324 n. 2 (Utah Ct.App.1995) (citation omitted).

      . While the trial court indicated it was limiting the excited utterances to only those statements relating to the exciting event, it did not actually detail which statements it was referring to, and the officer's testimony included a complete retell-tng of the victim's story.

      . "[The fact that another person in a similar situation might not have been excited does not suffice to bar resort to the exception." 4 David W. Louisell & Christopher B. Mueller, Federal Evidence § 439 (1980). For example, while most drivers in a five-mile-per-hour fender-bender might be well beyond the stress and excitement of the minor accident by the time they exchange nods of reassurance that all is fine and no damage has been done, or at least by the time they arrive home, it is unlikely a sixteen-year-old who received her license that very day and who is driving alone in the new family car for the first time would recede from the stress and excitement of that moment quite as quickly.

      . By contrast, the trial court in this case, referring to what the victim had experienced, stated, "I think that's an event that a reasonable person would expect to result in stress that would continue for some time."

      . There are limited instances when utterances in response to police questioning, or in a familiar environment, or even after several hours' delay, qualify as excited uiterances. But such instances are exceptional-not typical-and truly press the outer limits of the doctrine. See State v. Smith, 909 P.2d 236, 241-43 & n. 6 (Utah 1995). Such exceptional cases must contain compelling indications of continuing, uninterrupted stress from the original event in order for courts to find rebutted the presumption that the elapse of time, familiar environment, and similar indicators diffused the stress of the event. See Gross v. Greer, 773 F.2d 116, 119-20 (7th Cir.1985) (finding excited utterance when terrified four-year-old child, found cowering beneath blanket, made statement relating to murder, despite twelve-hour delay); State v. Bowler, 892 S.W.2d 717, 720-21 (Mo.Ct.App.1994) (finding excited utterance when 12-year-old girl made statement regarding attempted sexual abuse immediately upon being discovered under neighbor's car where she had hidden until early morning in constant fear that man was still pursuing her); State v. Guizzotti, 60 Wash.App. 289, 803 P.2d 808, 812 (finding excited utterance seven hours following rape during which time victim thought she was being pursued by rapist, hid under boat tarp, and feared for her life), review denied, 116 Wash.2d 1026, 812 P.2d 102 (1991).

      . Thus, the victim's emotional reaction here could very well have been the result of retelling the incident, rather than a result of remaining continuously under the original stress. Emotionalism in recounting a distressing event hours, days, or even years later is not uncommon, but it does not make the recounting an excited utterance.

      . At the very least the prosecution should have called the victim's mother to recount what transpired between 3:00 and 9:00 a.m. Perhaps the mother could have explained how the stress was continuous and offered the victim no time to reflect on the events with deliberation, much less to concoct a story.


author: HILL, Justice.

text:
    Todd Allen WRIGHT, Appellant (Defendant/Petitioner), v. Kandi Leigh WRIGHT, Appellee (Plaintiff/Respondent).
    No. 99-257.
    Supreme Court of Wyoming.
    April 26, 2000.
    Representing Appellant: Bruce Horton, Douglas, WY. Argument presented by Mr. Horton.
    Representing Appellee: Thomas E. Campbell, Douglas, WY. Argument presented by Mr. Campbell.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.
   HILL, Justice.

Appellant, Todd Allen Wright (Father), petitioned for an adjustment to his child support obligations due to a decrease in his income. The district court denied his petition. Father contends that the district court erroneously applied the applicable precedents of this Court, as well as the governing statute. Based upon our analysis of those contentions, we reverse and remand.

ISSUES

The issues stated by the parties express little more than what we have set out in our opening paragraph, except that they are at the opposite poles of that proposition. Ap-pellee, Kandi Lee Wright (Mother), has added a second issue to her brief, asking that we impose sanctions on Father pursuant to W.R.A.P. 10.05, because there was no reasonable cause for his appeal. Since our disposition is to reverse and remand, we will not, of course, discuss that second issue.

FACTS

The parties were divorced by Decree entered on February 4, 1998. One provision of the Decree dealt with child support, and that provision was a recapitulation of a settlement agreement reached by the parties:

CHILD SUPPORT

1. Pursuant to Wyo. Stat. § 20-6-301 et. seq., the Court makes the following findings with regard to child support establishment:
a. Parties' Income: Parties are found, or imputed, to have the following net monthly income: Husband, $2,800; and Wife, $714. With regard to Wife, the Court has imputed the net income based upon her securing full-time, minimum wage employment.
b. Presumptive - support _- obligation: Based upon this Court's orders herein related to custody and visitation and as required by Wyo. Stat. § 20-6-304, the presumptive support obligation of Husband for child support due wife is $720.00 per month.
c. Consideration of factors to deviate from presumptive support * * *:
1. None.
d. Current support establishment: That based upon these findings, the Court should set the obligation of Husband to pay child support to Wife at $720.00 per month, commencing February 1, 1998.

On June 1, 1999, Father filed a petition for review and adjustment of child support. He claimed that his monthly income had been reduced by an amount which qualified for an adjustment under Wyo. Stat. Aun. § 20-6-306(a) (LEXIS 1999), which provides:

(a) Any party, or the department of family services in the case of child support orders being enforced by the child support enforcement section, may petition for a review and adjustment of any child support order that was entered more than six (6) months prior to the petition or which has not been adjusted within six (6) months from the date of filing of the petition for review and adjustment. The petition shall allege that, in applying the presumptive child support established by this article, the support amount will change by twenty percent (20%) or more per month from the amount of the existing order. The court shall require the parents to complete a verified financial statement on forms approved by the Wyoming supreme court, and shall apply the presumptive child support set out in this article in conducting the review and adjustment. If, upon applying the presumptive child support to the cireumstances of the parents or child at the time of the review, the court finds that the support amount would change by twenty percent (20%) or more per month from the amount of the existing order, the court shall consider there to be a change of circumstances sufficient to justify the modification of the support order. The provisions of this section do not preclude a party or assignee from bringing an action for modification of a support order, based upon a substantial change of ciream-stances, at any time. The commencement of aid under the personal opportunities with employment responsibilities (POWER) program, medical benefits under Title XIX of the Social Security Act, food stamps and supplemental security income (SST) shall be considered a substantial change of cireumstances requiring modification of child support.

We will not set out the details of the dollar amounts upon which the claim for an adjustment was based because there is some dispute as to the accuracy of the figures used by the district court in reaching its decision. Moreover, the exact figures involved play no role in our decision to reverse and remand.

DISCUSSION

In its decision letter, the district court applied the figures supplied by the parties and determined that there was a 20% decrease in Father's monthly income. However, instead of making findings in accordance with the governing statutes, the district court held that the parties had reached a child support agreement and that, based upon a ruling of the Wyoming Supreme Court, it had no option but to follow that decision, "despite its shortcomings," and deny Father's petition. The case the district court cited is Smith v. Smith, 895 P.2d 37, 42 (Wyo.1995). In a footnote to its decision letter, the district court opined that the holding of that case "... will actually discourage settlement of support issues, as both obligors and obligees will fear that they will be forever bound by their agreement. Further, this holding also limits modifications that would have kept support amounts close to the statutory guidelines. Attorneys drafting support agreements now must take care to include language avoiding this pitfall."

The district court's decision, and the footnote quoted above, ignored entirely Sharpe v. Sharpe, 902 P.2d 210 (Wyo.1995), which clarified the rule found in Smith. -In the instant case, the parties settled the question of support by conforming Father's child support obligations to the statutory guidelines set out in Wyo. Stat. Ann. § 20-6-304. In Smith, the parties reached an "agreement" to forego the application of the child support guidelines. 895 P.2d at 38-39. In Smith, Mr. Smith initially entered into an agreement with Mrs. Smith to pay $5,000 per month in child support, even though that was an amount many times greater than the presumptive level of support. Later, the Smiths reached a second agreement which reduced Mr. Smith's child support obligation to $3,000 per month, an amount which was still many times greater than the presumptive support level. Mr. Smith then sought an adjustment of his child support obligations to bring them into line with the statutory level of presumptive child support. Based on those facts, we held that Wyo. Stat. Ann. § 20-6-302:

invokes the discretion of the trial judge, in the modification hearing, to weigh the enumerated thirteen factors and also the presence or absence of an agreement in the light of the policy favoring finality. In instances in which the parties have arrived at an agreement as to child support previously, even when the support agreed to deviates by more than twenty percent from the presumptive guidelines, the petitioner must introduce other evidence of a material change in cireumstances in order to justify a modification.

Smith, 895 P.2d at 42.

This Court then attempted to clarify the rule set forth above in Smith to apply "only to cases in which the parties entered into a stipulation to child support amounts before the current guidelines were enacted but which deviated from the guidelines in existence at that time, and to stipulated child support amounts under the current guidelines which deviate from the current guidelines by twenty percent or more at the time the judgment was entered." Sharpe, 902 P.2d at 213. Thus, as clarified by Sharpe, the rule in Smith became: In instances in which the parties have arrived at an agreement as to child support previously, and when the support agreed to deviates by more than 20% from the presumptive guidelines, the petitioner must introduce other evidence of a material change in circumstances, in addition to a present 20% deviation, in order to justify a modification.

This rule attempts to eliminate the possible evil of a non-custodial parent agreeing to pay child support which exceeds 20% deviation to secure a custodial parent's signature on a stipulation, only to come back to court within six months and ask for modification based upon a 20% deviation. Or, in the alternative, to prevent a custodial parent from agreeing to a child support amount which exceeds a 20% deviation below the guidelines to secure a non-custodial parent's signature on a stipulation, only to come back within six months asking for modification based only upon a 20% deviation. This rule does not apply to situations in which the child support amount agreed to by the parties did not exceed a 20% deviation one way or another from the guidelines in existence at the time the stipulation was executed. Where the agreement reached by the parties with respect to child support is predicated upon the operation of the presumptive child support statute, Smith and Sharpe play no role in the process of review and adjustment of child support as provided for in § 20-6-306(a).

In this case the parties did not reach an agreement to set child support at a level which did not rely on the statutory guidelines; indeed, their settlement specifically invoked the statutory guidelines as the basis for the settlement of the issue of child support. Thus, the district court erred in applying the rule enunciated in Smith under the cireumstances of this case. Sharpe, 902 P.2d at 213.

CONCLUSION

The Order of the district court denying Father's petition for an adjustment of child support is reversed, and this matter is remanded to the district court for further proceedings consistent with this opinion.


text:
    Gary ERDMAN, Appellant (Petitioner) v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).
    No. 99-215.
    Supreme Court of Wyoming.
    May 1, 2000.

      Representing Appellant: Donald L. Painter, Casper, WY.
    Representing Appellee: Gay Woodhouse, Attorney General; John W. Renneisen, Deputy Attorney General; Gerald W. Laska, Senior Assistant Attorney General; and Bernard P. Haggerty, Senior Assistant Attorney General.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.
   HILL, Justice.

Appellant Gary Erdman (Erdman) contends that a hearing examiner erred in denying his motion for voluntary withdrawal of his permanent partial disability claim, with prejudice. That claim was filed several years after, and as an adjunct to, a work-related injury, which was covered by worker's compensation benefits. We affirm.

ISSUES

Erdman posits this issue:

Whether the Hearing Examiner erred in dismissing Appellant's permanent partial disability claim with prejudice.

The Workers' Safety and Compensation Divi-gion (Division) states this issue:

After the Employee requested a hearing on the denial of a medical bill, the parties agreed to submit an intervening permanent partial disability claim to the Hearing Examiner. At hearing, the Employee's attorney moved to withdraw the intervening claim.
A. Was the denial of the Employee's motion to withdraw his intervening claim within the Hearing Examiner's discretion and in accordance with law?

FACTS

Erdman injured his back while at work on November 4, 1995. He received worker's compensation benefits for that injury. On January 28, 1998, Erdman received some additional medical tests/services, which he asserted were related to his on-the-job injury. By letter dated February 19, 1998, the Division denied the elaim on the basis that it was not related to his on-the-job injury, but rather, it was related to injuries he suffered in an automobile accident on December 20, 1997. Erdman objected to the denial of the claim . That matter was originally set for hearing on June 16, 1998. On May 14, 1998, Erdman asked that the hearing be continued, and the Hearing Examiner did continue the hearing date until September 15, 1998.

On June 15, 1998, Erdman amended his claim for benefits to include a claim for permanent partial disability benefits equal to 50% of whole body. That claim was joined with his initial claim, and both were to be heard together at the hearing already scheduled. At the September 15, 1998, hearing, there was a dispute about exhibits, and so the hearing was again continued until October 5, 1998. As one of the initial matters of business raised at the October 5, 1998, hearing, Erdman asked leave to withdraw the claim for an award of permanent partial disability. He maintained that the withdrawal should be without prejudice so that he could re-file it at a later date. One of the requirements for such an award is that the injured worker has conducted a job search. It was Erdman's contention that because of the automobile accident in December of 1997, he was unable to complete that search and, therefore, would be unable to document that element of his burden of proof. Wyo. Stat. Ann. § 27-14-405(h) (Michie 1997) provides:

(h) An injured employee awarded permanent partial impairment benefits may apply for a permanent disability award subject to the following terms and conditions:
(i) The injured employee is because of the injury, unable to return to employment at a comparable or higher wage than the wage the employee was earning at the time of injury;
(i) An application for permanent partial disability is filed not before three (8) months after the date of ascertainable loss or three (8) months before the last scheduled impairment payment, whichever occurs later, but in no event later than one (1) year following the later date; and
(iii) The employee has actively sought suitable work, considering the employee's health, education, training and experience.

The Hearing Examiner denied Erdman's motion to withdraw his claim premised on § 27-14-405(h), concluding:

2. The Employee-Claimant's motion to withdraw the Application for Permanent Disability is untimely and arose too late in the proceedings. As late as September 21, 1998, following the beginning of this contested case hearing, the Employee-Claimant had sought the permanent partial disability award. It was not until October 5, 1998, that the Employee-Claimant moved to withdraw the Application for Permanent Disability without prejudice. It would be prejudicial to allow the Employee-Claimant to withdraw the Application for Permanent Disability at this late stage of the proceedings only to be brought in the future after he has met the statutory requirements of Wyo. Stat. § 27-14-405. The Employee-Claimant's motion to withdraw the Application for Permanent Disability or to have it dismissed without prejudice is denied.

STANDARD OF REVIEW

Our standard of review in a case such as this is well-established:

A claimant for worker's compensation benefits has the burden of proving all the essential elements of the claim by a preponderance of the evidence in the contested case hearing. Martinez v. State ex rel. Wyoming Workers' Compensation Div., 917 P.2d 619, 621 (Wyo.1996). When an agency decides that the party charged with the burden of proof has failed to meet that burden, the case is reviewed under the capricious, an abuse of discretion or otherwise not in accordance with law" language of Wyo. Stat. § 16-3-114(c)@ii) (1990). City of Casper v. Utech, 895 P.2d 449, 452 (Wyo.1995). On appeal the complainant, Pederson in this instance, has the burden of proving arbitrary administrative action. Knight v. Environmental Quality Council of State of Wyo., 805 P.2d 268 (Wyo.1991); Wyoming Bancorporation v. Bonham, 527 P.2d 482, 489 (Wyo.1974); Marathon Oil Co. v. Welch, 379 P.2d 882, 886 (Wyo.1963); Whitesides v. Council of City of Cheyenne, 78 Wyo. 80, 319 P.2d 520, 526 (1957). The agency, as the trier of fact, is charged with weighing the evidence and determining the eredibility of witnesses. Utech, 895 P.2d at 451, and cases there cited. The deference normally accorded to the findings of fact by a trial court is extended to the administrative ageney, and the agency's decision as to the facts will not be overturned unless it is clearly contrary to the overwhelming weight of the evidence. Wyoming Steel & Fab, Inc. v. Robles, 882 P.2d 873, 875 (Wyo.1994). - Demonstrating evidentiary contradictions in the record does not establish the irrationality of the ruling, but we do examine conflicting evidence to determine if the agency reasonably could have made its finding and order based upon all of the evidence before it. Matter of Corman, 909 P.2d 966, 971 (Wyo.1996); Knight, 805 P.2d at 274; Ward v. Board of Trustees of Goshen County School Dist. No. 1, 865 P.2d 618, 623 (Wyo.1993); State ex rel. Wyoming Workers' Compensation Div. v. Ramsey, 839 P.2d 936, 941 (Wyo.1992).

Claim of Pederson, 939 P.2d 740, 742 (Wyo.1997).

Rather than addressing the issue raised in terms of the governing standard of review, Erdman simply claims that the Hearing Examiner "erred" in denying his "last minute" motion to withdraw the claim without prejudice. Erdman has failed to cite pertinent authority or cogent argument in support of the asserted "error." A logical source for an argument to have been made by analogy would have been W.R.C.P. 41 (dismissal of actions). See 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2d $ 2864 (1995). An examination of the material contained in that discussion of the discretion enjoyed by an adjudicator, when resolving a motion such as that at issue here, supports a conclusion that this Hearing Examiner acted well within her discretion in these cireumstances. Id. at 292-97. One very non-arbitrary, non-capricious, discreet, and lawful conclusion the Hearing Examiner might have reached is that Erdman simply had not prepared for the scheduled hearing, and wanted more time to get ready.

However, we will limit our disposition of the issue raised to a conclusion that the absence of pertinent authority or cogent argument requires that we decline to address the issue further. Painter v. Spurrier, 969 P.2d 548, 549 (Wyo.1998); Hemme v. Wyoming Workers' Compensation Division, 914 P.2d 824, 827 (Wyo.1996); Makinen v. PM P.C., 893 P.2d 1149, 1155 (fn.2) (Wyo.1995).

The order of the district court affirming the determination made by the Hearing Examiner is affirmed.

      . The Hearing Examiner determined that this portion of Erdman's claim should be paid, and there is no further dispute in that regard.


author: MATTHEWS, Chief Justice. CARPENETI, Justice,

text:
    D.P. and R.P., Appellants, v. WRANGELL GENERAL HOSPITAL and Elsie Hansen, Appellees.
    No. S-8024.
    Supreme Court of Alaska.
    May 19, 2000.
    Rehearing Denied, Aug. 8, 2000.

      James W. McGowan, Sitka, Gregory F. Cook, Douglas, for Appellants.
    William T. Council, Juneau, for Appellees.
    Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.
   OPINION

MATTHEWS, Chief Justice.

I. INTRODUCTION

D.P. was diagnosed with schizophrenia and admitted to Wrangell General Hospital. The admitting orders stated that D.P. should remain in the building. Although D.P. remained under periodic observation, she walked out of the hospital. During her brief absence, she had sexual relations with a man whom she delusionally believed was either "Jesus" or "a prophet." D.P. sued the hospital and the duty nurse for negligence, and now appeals the superior court's grant of a directed verdict for both defendants. Because we hold that reasonable jurors could differ concerning whether the defendants breached their duty of care regarding D.P., we reverse the superior court's ruling and remand the case for trial.

IIL FACTS AND PROCEEDINGS

A. Facts

D.P., 48, has a history of auditory hallucinations, delusions, and other schizophrenic symptoms. Medication has generally enabled D.P. to control her condition.

D.P. was treated by Dr. David McCandless, a Wrangell general practitioner, and Kathy Koch and Mark Walker, mental health professionals from Wrangell Mental Health Services. In April 1992 Dr. Ulrich Schoettle, a clinical psychiatrist from Seattle, also began seeing D.P. every other month.

In the spring of 1994, D.P.'s caregivers became concerned that she had stopped taking her medication. By May she was significantly more agitated and began to complain of physical distress from the medication. Despite Dr. Schoettle's recommendation of a new antipsychotic drug, D.P. underwent further deterioration by July and began to experience religious delusions.

Early on July 19, Dr. McCandless admitted D.P. to the hospital, diagnosing her with "schizophrenia, psychotic decompensation." In his hospitalization order, Dr. McCandless wrote in part as follows:

Up as tolerated, should stay in building, under observation/suicide precautions.
For Agitation/Hallncinations/Danger -to self or Others
-Haldol 5-10 mg + Ativan 1-2 mg IM
Q4° pra[] OR AS Needed
-~Restraints prn only if danger to self or others.

When D.P. was admitted she was distraught and delusional. During the day D.P. was observed by four nurses, each on different duty shifts. The nurses' notes show that each nurse regularly checked on D.P. at intervals ranging from a few minutes to two hours. D.P. slept intermittently throughout the day, refusing food and medication. She continued to have delusions and was distraught and agitated. At 4:00 p.m. Nurse Elsie Hansen came on duty. During Hansen's shift, D.P. was noticeably more active and "cheerful," walking throughout the hallways and visiting another room. At 6:50 p.m. Hansen's notes indicate "[D.P. is] out in hallway-states she will walk to ER and then lay down in [her room]." At 6:55 p.m. Hansen went to check on D.P. but was unable to locate her. In the intervening five minutes, D.P. had walked out of the hospital.

Once outside the hospital, D.P. met a temporary forest service worker. In her delusional state, D.P. believed that he was either "Jesus" or "the prophet." D.P. and her new acquaintance spoke for several hours, after which they engaged in sexual relations in a local park. At approximately 10:10 p.m., police officers arrived and returned D.P. to the hospital. The next day, Dr. Schoettle had D.P. involuntarily committed to the Alaska Psychiatric Institute (APT).

B. Proceedings

In June 1995 D.P. sued the hospital and Hansen (collectively defendants) for negligence in failing to provide "reasonable and attentive care, including, but not limited to, adherence to physician's orders, regular monitoring and accurate record-keeping." She sought compensatory damages against both defendants and punitive damages against Hansen individually.

The defendants answered, denying D.P.'s allegations of negligence. D.P. then submitted an interrogatory, requesting that the defendants explain their denial of D.P.'s charge that "[njo effort had been made to restrain" D.P. from leaving the hospital. The defendants replied:

The Hospital's employees understood that [D.P.] was not to be permitted to leave the Hospital facility. The nurse on duty checked on [D.P.] from time to time as the nurse felt it was necessary under the circumstances at any particular time. See the medical records, and in particular the progress notes, which document in part the contacts between Hospital employees and [D.P.]. Had any Hospital employee known that it was [D.P.]'s intention to leave the Hospital facility, she would not have been allowed to do so. Unfortunate ly, D.P. did leave the Hospital, but not as a consequence of any failure on the part of any Hospital employee to exercise reasonable care under the circumstances at that time.

D.P. interpreted this answer as an "ironclad" admission of the existence of a duty of care, the standard of care, and the breach of a duty of care. Therefore, D.P. did not designate any expert witnesses, choosing instead to rely solely on the defendants' interrogatory answer.

At a pretrial hearing held January 24, 1997, the superior court ruled that expert testimony was required to establish the standard of care and the breach of a duty of care. At trial on January 27, the court approved D.P.'s request to call defendants' expert witness, Dr. Schosttle, to testify regarding these issues.

D.P. experienced difficulty eliciting information favorable to her case from Dr. Schoettle. She attempted to show that Hansen breached a duty of care by violating Dr. McCandless's "cut and dried" order to keep D.P. in the hospital. Dr. Schoettle testified that a physician's orders should be viewed holistically. He explained that, as a whole, the specific instructions that D.P. should remain in the building, under observation, and with suicide precautions reflected a directive to "be attentive" to the patient, requiring "general observation and supervision."

Dr. Schoettle further testified that hospitals should maintain an "open door policy" for voluntary psychiatric patients, attempting to normalize the patient's environment rather than imposing artificial controls and restraints. He testified that the "Inlormative community standards in hospitals for observations of psychiatric patients are checking every 15[] minutes to a half hour." Dr. Schoettle later clarified that only acutely suicidal patents require observation every fifteen minutes.

After D.P.'s examination of Dr. Schocttle, the defendants moved for a directed verdict under Civil Rule 50, arguing that D.P. had failed to establish either the standard of care or a breach of duty. D.P. argued that Dr. Schoettle's testimony proved that, although some flexibility existed regarding the extent of supervision necessary, none existed regarding whether to permit her exit from the building.

Although the superior court concluded that Dr. Schoettle's testimony had not established a breach, it allowed D.P. to reopen her direct examination of Dr. Schoettle to make this inquiry. After further questioning, Dr. Schoettle testified that the nurses had executed Dr. McCandless's orders within the "norm of community standards." He stated:

I don't see in-in my professional opinion that there was a miscommunication, a negligence, a nursing decision where somebody made it on their own and-and had some wild idea or-or did anything different than I would have expected any nurse to do. Sometimes patients walk out.

Dr. Schoettle also testified that the nurses had observed D.P. with adequate frequency. But Dr. Schoettle acknowledged that the "fact that the patient went out implies [negligence]," although he did not believe that the nurses were negligent. Dr. Schocttle explained that an order to stay in the building is actually "an assumed" order for any patient, psychiatric or otherwise. He noted that even in psychiatric wards, doors are often left unlocked or open, and patients are allowed to commingle.

The court concluded that Dr. Schocttle's testimony had established the standard of care but failed to show a breach of duty by either the hospital or Hansen. It therefore directed a verdict for the defendants and dismissed D.P.'s claims.

III STANDARD OF REVIEW

In reviewing the superior court's decision to grant a directed verdict, we view the evidence in the light most favorable to the nonmoving party. We will affirm a directed verdict only where reasonable jurors could not reach different conclusions.

Whether expert testimony is required to show a breach of a duty of care represents a question of law to which we apply our independent judgment. We will adopt the rule of law most convincing in light of precedent, reason, and policy.

IV. DISCUSSION

A. It Was Error to Require D.P. to Present Expert Testimony as to the Breach of a Duty of Care.

The general rule in medical malpractice actions provides that "the jury ordinarily may find a breach of professional duty only on the basis of expert testimony." "The primary limitation to this rule is that expert testimony is not needed in non-technical situations where negligence is evident to lay people." $5 D.P. relies on this exception.

The defendants rely primarily on cases discussing whether the health care provider failed to recognize the suicidal or elopement tendencies of the patient or failed to order appropriate precautions. 'These cases, however, are distinguishable from the present situation because D.P. does not allege that defendants failed to appreciate her mental health status, to recognize a risk of harm to her, or to order reasonable precautions. She instead faults the defendants' failure to follow the ordered precautionary measures.

It remains far from clear that D.P.'s case should be viewed as a "medical malpractice" action. Most courts characterize cases in which the plaintiff alleges a failure to adequately supervise and safeguard the patient as involving "ordinary negligence" issues. Further, in Alaska, medical malpractice actions are governed entirely by statute. Alaska Statute 09.55.586(a) sets forth specific procedural requirements for medical mal'practice cases. Under this section, either the parties must submit a malpractice claim to arbitration or the court must appoint an expert advisory panel within twenty days of the answer to the complaint. Neither occurred here. Moreover, the superior court recognized that the parties had failed to treat the action as one for medical malpractice.

In Clary Insurance Agency v. Doyle, we distinguished between medical malpractice issues and those involving ordinary negligence:

Not every act of a professional requires an instruction on the professional standard of care. Meier v. Ross General Hospital[ ] illustrates the point. Meter involved a wrongful death action by the widow of a suicide victim who had jumped through an unbarred second story window of a hospital. The court concluded that the case supported instructions on both ordinary negligence and medical malpractice. Issues relating to improper medical diagnosis and chemotherapy treatment required an instruction on the professional standard of care. But the court concluded that an instruction on ordinary negligence was appropriate on the question of whether it was negligent to allow the decedent, who was depressed and had previously slashed his wrists, to wander freely around a hospital where there were no bars on the windows.! ]

The defendants unpersuasively rely on Nally v. Grace Community Church of the Valley to distinguish Meter. In Nally, a young man who received informal pastoral counseling committed suicide. Nally simply declined to extend a duty of care "to personal or religious counseling relationships in which one person provided nonprofessional guidance to another seeking advice and the counselor had no control over the environment of the individual being counseled."

In view of the numerous authorities holding that a jury may readily determine whether patients known to be a risk to themselves have been adequately supervised, we hold that D.P.'s claims do not raise "strict" medical malpractice issues requiring expert testimony. Whether the hospital exercised reasonable care in supervising D.P. represents a factual question for the jury's resolution un-. der an ordinary negligence framework. We therefore hold that it was error to require D.P. to present expert testimony regarding the hospital's alleged breach of its duty of care.

B. It Was Error Not to Let D.P.'s Case Go to the Jury.

D.P. contends that the superior court should have allowed the jury to consider the testimony of Dr. Schoettle and lay witnesses, in determining the issue of breach.

The defendants respond that no reasonable juror could have found that the defendants were negligent. They emphasize that the hospital is not a psychiatric hospital and lacks "any locked or secure patient facil-it[ies], rooms or wards." The defendants also stress that the standard of care did not require "constant observation." They argue that D.P. conceded both that the nurses had flexibility in implementing the physician's orders and that all except Hansen used reasonable care in observing D.P. They further note that Hansen discovered D.P.'s absence within five minutes.

The issues raised by the defendants concerning their use of reasonable care in supervising D.P. warrant resolution by a jury. D.P.'s pleadings and proposed jury instructions raise ordinary negligence issues. Drawing all inferences in favor of D.P. as the non-moving party, reasonable minds might ""differ as to whether the hospital's efforts to supervise D.P. were adequate in view of her known delusional condition. We conclude that the case should properly go to the jury under a theory of ordinary negligence.

C. The Defendants' Interrogatory Answer Is Admissible to Show the Existence of a Duty of Care.

D.P. argues that the superior court erred by refusing to characterize the defendants' interrogatory answer as an admission of both the existence of a duty and the breach of that duty. Specifically, D.P. asserts that the court erred by labeling this evidence as "discovery" rather than "proof," arguing that it should have been "weighed in the analysis of defendants' motion for a directed verdict."

Civil Rule 33(c) provides that answers to interrogatories "may be used to the extent permitted by the rules of evidence." The defendants' answer in the present case bears directly upon the hospital's duty of care and should have been admitted for that purpose. We therefore hold that the interrogatory answer is admissible on the issue of the defendants' duty of care.

V. CONCLUSION

We REVERSE the directed verdicts in favor of the defendants and REMAND this case for a new trial utilizing an ordinary negligence framework.

CARPENETI, Justice,

dissenting.

I,. INTRODUCTION

This medical malpractice case raises the question whether a hospital staff exercised care consistent with professional medical standards of restraint and supervision for a psychiatric patient. In such cases, Alaska law requires expert testimony to establish a breach of the standard of care before the plaintiff can recover. Because plaintiff offered no such testimony, even when notified by the trial court that it was required, I would affirm the trial court's decision to dismiss the case.

IIL DISCUSSION

The burdens of proof in a medical malpractice action in Alaska are set out in AS 09.55.540:

(a) In a malpractice action based on the negligence or wilful misconduct of a health care provider, the plaintiff has the burden of proving by a preponderance of the evidence
(1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised under the circumstances, at the time of the act complained of, by health care providers in the field or specialty in which the defendant is practicing;
(2) that the defendant either lacked this degree of knowledge or skill or failed to exercise this degree of care; and
(8) that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.
(b) In malpractice actions there is no presumption of negligence on the part of the defendant.

Therefore, it was D.P.'s burden to provide evidence establishing the applicable medical standard of care, the defendants' breach of that standard of care, and that the breach caused her injuries. Moreover, as D.P. concedes, this court has previously followed the well-established rule that "[in medical malpractice actions the jury ordinarily may find a breach of professional duty only on the basis of expert testimony."

A. D.P.'s Case Was a Medical Malpractice Action as That Term Is Used in AS 09.55.540 and .550.

The court concludes that D.P.'s claims do not raise "'strict' medical malpractice" issues and that "[it remains far from clear ... that D.P.'s case should be viewed as a 'medical malpractice action." I disagree. Both the broad statutory use of the term "medical malpractice" and the commonly recognized legal definition of "malpractice" favor an application that covers lawsuits like D.P.'s.

The definitions section of the statutory chapter governing medical malpractice claims contains individual definitions indicative of the breadth of services and types of health service providers that the legislature intended that chapter to cover. For instance, AS 09.55.560(4) defines "professional negligence" as "a negligent act or omission by a health care provider in rendering professional services." And AS 09.55.560(5) defines "professional services" to include a "service provided by a health care provider that is within the scope of services for which the health care provider is licensed." Finally, AS 09.55.560(1) defines "health care provider" to include: "a nurse ...; a physician ...; a hospital ...; [and] an employee of a health care provider acting within the course and scope of employment." Taken together, the only conclusion to be drawn from these definitions is that sections 09.55.540 and .550 must apply to a broad range of actions taken in the provision of medical services. These services comfortably include the supervision of psychiatric patients in a hospital.

Similarly, the common definition of "malpractice" is:

Professional misconduct or unreasonable lack of skill. This term is usually applied to such conduct by doctors, lawyers, and accountants. Failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the cireumstances in the community by the average prudent reputable member of the profession with the result of injury, loss or damage to the recipient of those services or to those entitled to rely upon them.[]

Given the broad definition commonly applied to "malpractice" and the similarly broad statutory definitions in our statutes on "medical malpractice," I cannot agree that D.P.'s claim is one of "ordinary negligence" and not one of "medical malpractice." Accordingly, to the degree that the court suggests that D.P.'s claim that she was entitled to "reasonable and attentive care, including, ... adherence to physician's orders" was not a claim of medical malpractice, I cannot agree.

B. The Notion of "Ordinary Negligence" Is Not Applicable Within the Context of a Professional Negligence Action.

I also disagree with the court's conclusion that it is appropriate to allow a jury to resolve D.P.'s claim "under an ordinary negligence framework." Implicit in this conclusion is the view that the individual acts that in the aggregate comprise any given medical service may be finely parsed into those acts judged under the rubric of ordinary negli-genee and those acts judged under the rubric of professional negligence. California, with its similar statutory scheme for medical malpractice, has rejected this approach.

Moreover, the logic underlying the parsing approach to acts by health care providers is flawed because "ordinary negligence" is not applicable in a professional negligence case. The court relies on Meier v. Ross General Hospital, a California case, for the proposition that "ordinary negligence" can exist in a medical malpractice setting. But as the California Supreme Court recently explained in Flowers v. Torrance Memorial Hospital Medical Center,

whether the cause of action is denominated "ordinary" or "professional" negligence or both, ultimately only a single standard can obtain under any given set of facts and any distinction is immaterial....
... [A] defendant has only one duty, measured by one standard of care, under any given cireumstances.

That court then went on to further explain that when courts allow seemingly obviously negligent acts to supplant the need for expert testimony to establish the appropriate standard of care, their "reasoning confuses the manner of proof by which negligence can or must be established and the character of the negligence itself."

The logic of Flowers and the cases that follow it is persuasive. There cannot be two standards of care that apply to one person for the same act at the same time-one "professional" and one "ordinary."

The allegedly negligent act at issue in this case took place during the provision of professional medical services. In these cireum-stances, AS 09.55.540 requires proof of the applicable standard of care and proof of a breach of that standard of care. Because there was no expert testimony, the plaintiff's case was insufficient unless an exception to the rule could be found.

C. Reliance on the Common Knowledge Exception Is Not Appropriate in This Case.

The court finds an exceeption-the "common knowledge exception"-to the rule that expert testimony is needed to establish the standard of care. But that exception is incompatible with our statutory framework. Moreover, even if the common knowledge exception does not conflict with AS 09.55.550, it is inappropriate to apply it on the facts of this case.

1. The common knowledge exception is not compatible with AS 09.55.550.

The common knowledge exception has been explained as applying "when a layperson is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised." That is, the type of injury incurred could not have happened in the absence of negligence. But AS 09.55.550 provides, in part, that "[tlhe jury shall be ... instructed that injury alone does not raise a presumption of the health care provider's negligence or misconduct."

The common knowledge exception therefore allows the inference of negligence to be drawn from the proved existence of injury under a broad set of possible cireumstances within the knowledge and observation of the general populace. This is, however, essentially a working definition of "presumption." Since AS 09.55.550 explicitly requires the court to instruct the jury that "injury alone does not raise a presumption of . negligence," application of the common knowledge exception is inconsistent with Alaska law.

2. Even if generally applicable, the common knowledge exception should not be applied on the facts of this case.

There are two theories under which the hospital could have become liable to D.P. First, either Dr. McCandless or Dr. Schoet-tle, or both, could have been professionally negligent in prescribing D.P.'s course of treatment and care. But D.P. did not allege any failing by either of her doctors. Accordingly, the hospital and nursing staff are not liable to D.P. for shortcomings attributable to Dr. McCandless's treatment and supervision order, unless there were changed circumstances that should have alerted the nursing staff to take appropriate action. D.P. therefore cannot rely on any claim that suggests alternative methods of physical, supervisory, or narcotic restraint should have been ordered or implemented because these decisions were within the doctors' exclusive province of professional responsibility.

Second, and relevant to the common knowledge exception, D.P.'s nurses may have been professionally negligent in implementing Dr. McCandless's flexible treatment order. But, as with a doctor's professional Judgments, a failure in care arising out of a nurse's discretionary actions implicates professional negligence. As the court in Sabol v. Richmond Heights General Hospital stated:

The law of medical negligence imposes on physicians engaged in the practice of medicine a duty to employ that degree of skill, care and diligence that a physician or surgeon of the same medical specialty would employ in like circumstances. Likewise, nurses are persons of knowledge and skill and must employ that degree of care and skill that a nurse of ordinary care, skill and diligence would employ in similar circumstances."[]

Thus, to support this theory D.P. had to provide expert testimony establishing the appropriate standard of care of a professional nurse operating under similar cireum-stances, unless the proper level of supervision and restraint of a psychiatric patient was peculiarly within the common knowledge of the average citizen. That it was not in this case is evident by reviewing Flowers, which makes clear the strictly limited range of the common knowledge exeeption:

In this regard, this court has on numerous occasions articulated the general rule applicable in negligence cases arising out of the rendering of professional services: "The standard of care ... is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony, unless the conduct required by the particular cireumstances is within the common knowledge of the layman." The "common knowledge" exception is principally limited to situations in which the plaintiff can invoke the doctrine of res ipsa loquitur, ie., when a layperson "is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised." The classic example, of course, is the X-ray revealing a scalpel left in the patient's body following surgery.[]

This is clearly not such a case. The measures which a nurse might appropriately take to monitor a paranoid schizophrenic patient, and to dissuade such a patient from leaving should that be her obvious intent, and to attempt to restrain her in the event persuasion was unsuccessful, are not obvious to the lay person."

Moreover, Alaska has legislatively nullified the doctrine of res ipsa loquitur in medical malpractice cases. Yet under D.P.'s theory of the case, the fact that she got outside the building indicates that there was a breach of the standard of care. This argument is virtually indistinguishable from res ipsa logui-tur. Moreover, "proof of a bad result or mishap is no evidence of lack of skill or negligence." D.P.'s conclusion therefore leaps two steps-the standard of care and breach-when only one is implicated by the fact of her leaving the building. The first step, and the step on which D.P.'s case falters, is the question of the standard of care. What was the applicable standard of care for the nursing staff to protect D.P. from herself? -What was the staff required or permitted to do-and what was it precluded from doing-in fulfilling its duty to her?

Laypersons cannot accurately answer that question without expert assistance. Both Alaska law and the realities of decisionmak-ing lead to that conclusion. Whether Nurse Hansen's checking up on D.P. five minutes after seeing her in the hallway (and discovering she was gone) was commensurate with the professional standards of a nurse in Wrangell General Hospital supervising a psychiatric patient is surely an issue outside the common knowledge of laypersons.

D. D.P.'s Claims Were Properly Dismissed Because She Foiled to Produce Evidence to Support a Breach of the Duty of Care Established by Dr. Schoettle's Testimony.

Finally, D.P.'s negligence claim fails on the alternative basis that even when the evidence is viewed in the manner most favorable to her, it does not support a claim that Nurse Hansen failed to properly supervise D.P. under the standard of care set out in Dr. Schoettle's testimony-the only evidence produced at trial on that subject.

Dr. Schoettle's uncontradicted testimony established that "the nursing notes do not suggest any negligence whatsoever on the part of the nursing staff." Since D.P. did not provide documentary evidence or her own witness (expert or not) to testify on this claim, Dr. Schoettle's testimony established the standard of care and that there was no breach of that standard by the nurses' actions. Accordingly, D.P. did not made out a prima facie case of professional negligence against the nursing staff.

III. CONCLUSION

Alaska law required D.P. to present expert testimony to establish that the hospital or its staff violated standards of professional care while she was under their control. Because she did not do so, I would affirm the trial court. I would not allow this medical malpractice case to proceed under an "ordinary negligence" framework. I therefore dissent.

      . 'Prn'" is medical shorthand for "as needed."

      . See Fairbanks N. Star Borough v. Lakeview Enters., Inc., 897 P.2d 47, 53 n. 5 (Alaska 1995).

      . See id.

      . See Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

      . Kendall v. State, Div. of Corrections, 692 P.2d 953, 955 (Alaska 1984) (quoting Clary Ins. Agency v. Doyle, 620 P.2d 194, 200 (Alaska 1980)).

      . Id.

      . See, e.g., Rudy v. Meshorer, 146 Ariz. 467, 706 P.2d 1234, 1236-38 (App.1985) (requiring expert testimony to show that psychiatrist "was negligent in his determination that [decedent] was not suicidal"); Dimitrijevic v. Chicago Wesley Mem'l Hosp., 92 Ill.App.2d 251, 236 N.E.2d 309, 313 (1968) (requiring expert testimony to determine "whether defendant doctors failed to exercise ordinary skill and care in not characterizing decedent as a suicidal risk"); Kanter v. Metropolitan Med. Ctr., 384 N.W.2d 914, 916 (Minn.App.1986) (recognizing that expert testimony would assist trier of fact in determining whether nurse should have recognized patients' "potential [suicidal] tendencies").

      . See, eg., Meier v. Ross Gen. Hosp., 69 Cal.2d 420, 71 Cal.Rptr. 903, 445 P.2d 519, 523, 529 (1968) (where decedent leapt from hospital window, alleged failure to supervise involved only "ordinary negligence" issues since it did not concern "the propriety of any controverted medical diagnosis or treatment"); Paulen v. Shinnick, 291 Mich. 288, 289 N.W. 162, 164 (1939) (where patient leapt from window, "whether [attendant] should have locked the screen ... or [] taken some other precaution to prevent plaintiff's escape, is not a question on which a jury requires the advice of trained psychiatrists"); Stallman v. Robinson, 364 Mo. 275, 260 S.W.2d 743, 745, 749 (1953) (where decedent hung herself with her nightgown, expert testimony not required to determine "whether the patient was reasonably safeguarded and protected, in the circumstances in view of her known condition" because case was not "strictly speaking a malpractice case"); Kent v. Whitaker, 58 Wash.2d 569, 364 P.2d 556, 557 (1961) (action was "not a malpractice case" where patient with known suicidal tendencies strangled herself with plastic tubing while unattended in locked room because it did not concern "improper diagnosis or negligent treatment" but rather "failure of the specific duty of exercising reasonable care to safeguard and protect a patient with known suicidal tendencies from injuring herself"). But see Reifschneider v. Nebraska Methodist Hosp., 222 Neb. 782, 387 N.W.2d 486, 488-89 (1986) (where emergency room patient fell from hospital cart, court refused to find that laypersons could determine whether hospital had duty to restrain or supervise patients on carts).

      . See AS 09.55.530-.560.

      . The court, however, did rely on AS 09.55.540 in requiring D.P. to present expert testimony.

      . 620 P.2d 194 (Alaska 1980).

      . 69 Cal.2d 420, 71 Cal.Rptr. 903, 445 P.2d 519 (1968).

      . Doyle, 620 P.2d at 200.

      . 47 Cal.3d 278, 253 Cal.Rptr. 97, 763 P.2d 948 (1988).

      . Id. 253 Cal.Rptr. 97, 763 P.2d at 950-52.

      . Id. 253 Cal.Rptr. 97, 763 P.2d at 957.

      . D.P.'s arguments for the hospital's breach of its duty involve issues of ordinary custodial care of patients, not specialized care that requires the use of medical judgment: Did the hospital monitor the front door properly? Did the staff take reasonable precautions to prevent D.P. from leaving? We note, however, that in so far as D.P. intends to argue issues that involve specialized medical decisions-such as the appropriate level of physical restraints or medication-she can do so only through expert testimony.

      . D.P. admitted that the nurses have "all the discretion in the world" as to how closely to observe D.P. and what precautions to take, but argued that "[the one issue they: don't have discretion about is keeping her in the hospital or out of the hospital."

      . See Alaska R. Evid. 402 ("All relevant evidence is admissible" unless otherwise provided); Alaska R. Evid. 401 ("Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.").

      . See AS 09.55.540.

      . Kendall v. State, Div. of Corrections, 692 P.2d 953, 955 (Alaska 1984) (ellipsis omitted) (quoting Clary Ins. Agency v. Doyle, 620 P.2d 194, 200 (Alaska 1980)).

      . Op. at 229.

      . Op. at 228.

      . Black's Law Dictionary 959 (6th ed.1990) (defining malpractice").

      . Op. at 229.

      . See Bellamy v. Superior Court, 50 Cal.App.4th 797, 57 Cal.Rptr.2d 894, 900-01 (1996);
      Some ... tasks may require a high degree of skill and judgment, but others do not. Each, however, is an integral part of the professional service being rendered. Trying to categorize each individual act or omission, all of which may occur within a space of a few minutes, into "ordinary" or "professional" would add confusion in determining what legal procedures apply if the patient seeks damages for injuries suffered at some point during the course of the examination or therapy. We do not see any need for such confusion or any indication the Legislature intended MICRA's applicability to depend on such fine distinctions. (Footnote omitted.)

      . 69 Cal.2d 420, 71 Cal.Rptr. 903, 445 P.2d 519 (1968).

      . Op. at 228-229.

      . 8 Cal.4th 992, 35 Cal.Rptr.2d 685, 884 P.2d 142 (1994) (in bane).

      . See id. 35 Cal.Rptr.2d 685, 884 P.2d at 146 (footnote omitted).

      . Id. 35 Cal.Rptr.2d 685, 884 P.2d at 147.

      . Id. (footnote and internal quotation marks omitted) (quoting Engelking v. Carlson, 13 Cal.2d 216, 88 P.2d 695 (1939)).

      . See Blacks Law Dictionary 1203 (7th ed.1999) {defining "presumption" as "(al legal inference or assumption that a fact exists, based on the known or proven existence of some other fact or group of facts"); see also Commentary to Alaska Rule of Evidence 301(a), second paragraph (defining presumption").

      . See Dimitrijevic v. Chicago Wesley Mem'l Hosp., 92 Ill.App.2d 251, 236 N.E.2d 309, 314 (1968) (holding that hospital was under no duty to take precautions not ordered by the attending physician); State v. Washington Sanitarium and Hosp., 223 Md. 554, 165 A.2d 764, 766 (1960) (stating that "(ilt was not incumbent upon the nurses and attendants to apply restraints or supervision which the attending physician" did not order); Sabol v. Richmond Heights Gen. Hosp., 111 Ohio App.3d 598, 676 N.E.2d 958, 960 (1996) (holding that the hospital was not Hable where its staff provided the protective measures ordered by the aitending physician to prevent suicide).

      . See Washington Sanitarium, 165 A.2d at 766.

      . 111 Ohio App.3d 598, 676 N.E.2d 958.

      . Id. at 960 (emphasis added) (citations omitted).

      . See Hitch v. Ohio Dep't of Mental Health, 114 Ohio App.3d 229, 683 N.E.2d 38, 45 (1996); Payne v. Milwaukee Sanitarium Found., Inc., 81 Wis.2d 264, 260 N.W.2d 386, 390-91 (1977) ("Where the patient requires professional nursing or professional hospital care, then expert testimony as to the standard of that type of care is necessary.") (citation omitted).

      . 35 Cal.Rptr.2d 685, 884 P.2d at 147 (emphasis added) (footnote and citations omitted).

      . See Baker v. United States, 226 F.Supp. 129, 132 (S.D.Iowa 1964) ("It is particularly recognized in the treatment of mental patients that diagnosis is not an exact science.... Further the objective is treatment not merely incarceration. Treatment requires the restoration of confidence in the patient. This in turn requires that restrictions be kept at a minimum. Risks must be taken or the case left as hopeless.") (emphasis added) (citations omitted), aff'd, 343 F.2d 222 (8th Cir.1965).

      . See Priest v. Lindig, 583 P.2d 173, 175-76 & n. 7 (Alaska 1978) (citation omitted).

      . Dimitrijevic v. Chicago Wesley Mem'l Hosp., 92 Ill.App.2d 251, 236 N.E.2d 309, 312 (1968).