The Utah Court of Appeals has upheld the felony conviction of a former North Star wilderness program counselor for his role in the 1994 death of Aaron Bacon.
A 6th District Court jury found Craig Fisher guilty of abuse or neglect of a disabled child on Nov. 5, 1996, after hearing testimony about the harsh treatment of Bacon during a therapy survival expedition.Bacon, 16, of Phoenix, died on March 31, 1994, of acute peritonitis resulting from a perforated ulcer that developed following several days of hiking through the rugged terrain of Escalante River Canyon in southern Utah.
Fisher, 23, was one of six North Star employees charged in the case and the only one to stand trial. He was sentenced to one year in jail. The other defendants, including North Star owners William Henry and Lance Jagger, agreed to plead guilty to misdemeanor charges and were fined.
In his appeal, Fisher argued that the felony child abuse charge against him should have been reduced to misdemeanor child abuse because Bacon did not fit the legal definition of a disabled child. He also contended that jurors may not have been unanimous in their verdict on all elements of the charge.
But a three-judge panel of the appeals court ruled Thursday that the evidence was sufficient to show that Fisher was a caretaker of a disabled child, as those terms are used in state law, and that there was no violation of the jury unanimity rule.
According to testimony at the trial, Fisher and other North Star staff members teased Bacon when he complained about feeling ill and disciplined him by withholding food and forcing him to sleep in below-freezing weather without a sleeping bag or a blanket. At times, Bacon's meals consisted of raw lizard, cooked scorpion, prickly pear and pine needle tea.
Ten days before his death, Bacon wrote in his journal, "I am in terrible condition here. My hands are all chapped and my lips are cracking. I feel like I'm loosing control of my body."
He also wrote that severe incontinence had caused him to soil his pants. He said when he mentioned it to staff members, they ridiculed him in front of the other students. After that, he was excluded from the group "burrito," where everyone slept close together under a tarp to stay warm.
Other students on the expedition testified that by March 29, Bacon was pale and "really skinny." One described him as looking like a "Jewish person in a concentration camp." Bacon complained that his stomach hurt and he was dizzy. While hiking, he repeatedly fell.
The night before he died, he vomited and was moaning. Fisher told him to stop it, according to testimony at the trial.
Citing the court record, Judge Norman H. Jackson wrote, "While the other students ate dinner and wrote in their journals, Bacon sat away from the group, his head tilted to the side and his jaw agape, drooling. Fisher told him to stop drooling and mimicked him . . . He told Fisher that he did not want to die, and Fisher assured him that he would not."
The following morning, it took Bacon about an hour to crawl the 20 feet from his shelter to the campfire. Fisher and another staff member, Jeff Hohenstein, carried Bacon to the latrine and left him there. "When they returned, they found he had fallen into the latrine and his feet were covered in excrement," Jackson wrote.
Later, Bacon was taken to a truck for transport to an area where he could be seen by an emergency medical technician. "For the next few minutes, the staff made fun of Bacon and imitated his collapse. When Bacon slouched over in the truck, they unbelted him, checked for a pulse, began CPR and radioed Northstar for help."
A physician's assistant who arrived on the scene testified that Bacon was so gaunt that he didn't recognize him as the same boy he had examined just a few weeks earlier. Bacon, whose weight had dropped from 131 pounds to 108 pounds, was transported by helicopter to a hospital in Page, Arizona, where he died.
In affirming the conviction, the judges said Utah law defines a disabled child as "any person under 18 years of age who is impaired because of . . . physical illness . . . or other cause, to the extent that he is unable to care for his own personal safety or to provide necessities such as food, shelter, clothing and medical care."
Bacon met those conditions at some time after his ulcer developed, "and certainly after he developed the peritonitis that killed him," the judges said.
The judges also rejected Fisher's argument that he was denied a unanimous verdict on all the possible theories of liability, including evidence that Fisher wasn't present for several days of the expedition and that Bacon was given food and rudimentary medical attention during the final 48 hours of his life.
"We agree with the state that Fisher's argument confuses days with theories," Jackson wrote. "The state alleged only one theory of the case: that Fisher's actions over a 20-day period cumulatively constituted abuse or neglect of a disabled child . . . Our cases do not require jury unanimity on the factual question of which days within the period Fisher did, and which days he did not, commit acts contributing to the abuse or neglect of a disabled child."