Opinion
No. 23614-5-III.
Filed: April 11, 2006.
Appeal from Superior Court of Stevens County. Docket No: 04-1-00028-3. Judgment or order under review. Date filed: 11/23/2004. Judge signing: Hon. Allen C Nielson.
Counsel for Appellant(s), Robert R. Cossey, Robert R. Cossey Associates PS, 628 1/2 N Monroe St, Spokane, WA 99201-2161.
Counsel for Respondent(s), John Gerard Wetle, Attorney at Law, 215 S Oak St, PO Box 390, Colville, WA 99114-0390.
UNPUBLISHED OPINION
In February 2004, Mark Conner, Jr. and his wife took their three-month-old baby to the hospital because one of his legs was swollen. X-rays revealed a recently fractured femur, and older injuries, including numerous broken ribs and a fracture of the right ulna. Mr. Conner was charged with three counts of second degree assault of a child. He was convicted of the count related to the broken femur. On appeal, Mr. Conner contends the evidence was insufficient to support his conviction. We affirm.
FACTS
L.C. was born three months early. After his birth on November 2, 2003, L.C. remained in the neonatal intensive care unit until he was discharged on December 17. L.C. was on an apnea monitor in the hospital and used a home apnea monitor after his discharge. On February 9, 2004, Mr. Conner and his wife took three-month-old L.C. to the emergency room of Holy Family Hospital in Spokane, Washington. A day earlier, Mr. and Ms. Conner had noticed that L.C.'s leg was swollen.
Carolyn Joanne Lewis, R.N., was on duty in the emergency room when Mr. and Ms. Conner brought L.C. to the hospital. Ms. Lewis, a registered nurse, had 16 years of experience in the emergency room of Holy Family Hospital. Mr. Conner explained to Ms. Lewis that L.C.'s leg was swollen because an apnea monitor cable had gotten around the baby's leg. Mr. Conner also told Ms. Lewis that the injury might have happened the day before. Ms. Lewis testified that Mr. Conner made the following unsolicited statement: `Why would we have done anything to injure our child if we had waited three months for it to come home because it was premature.' Report of Proceedings (RP) at 18. Ms. Lewis thought the way Mr. Conner was demanding immediate treatment was unusual, and she felt that he was more aggressive and `in my face' than other patients when he made his demands. RP at 22. In her experience, Ms. Lewis had never seen an injury like L.C.'s caused by an apnea monitor cord. Instead, she believed this injury was caused by child abuse.
L.C. was examined by Dr. Christopher Tullis, a certified emergency room physician. Dr. Tullis found that L.C. had a swollen femur that appeared to be severely injured, and perhaps fractured. Dr. Tullis was concerned that L.C.'s injury was the result of abuse because a three-month-old child does not have the strength to create the force required to cause a fracture unless the child is dropped or abused. Dr. Tullis ordered an x-ray of L.C.'s leg. When this x-ray revealed a fracture through the middle of the right femur, Dr. Tullis ordered a set of skeletal x-rays. These x-rays revealed rib fractures and a fracture in the right forearm. Dr. Tullis concluded that these fractures did not all occur at the same time.
Dr. Tullis testified that Mr. Conner was cooperative at first, but became somewhat defensive when people began to focus on him as the potential abuser. In contrast, Ms. Conner was apathetic and just sat there. In cases of child abuse, Dr. Tullis had noticed that when parents acted bewildered, they were usually not the abusers. According to Dr. Tullis, Mr. Conner's explanation that the monitor cord had gotten around L.C.'s leg, could not account for the fractured femur. Concerned that the possibility for child abuse was extremely high, Dr. Tullis transferred L.C. to Sacred Heart Hospital which has pediatric intensive care and pediatric special services. Dr. Tullis also asked social services to notify Child Protective Services about L.C.
On February 12, L.C. was examined at Sacred Heart by Dr. Alan Hendrickson, a pediatrician with a subspecialty in child abuse. By then, L.C. was in a spica cast covering the whole lower half of his body. Dr. Hendrickson examined the x-ray of L.C.'s right femur. Dr. Hendrickson saw a fracture a little past the midline that was closer to the knee than the hip. The lower part was a little displaced. According to Dr. Hendrickson, the injury was an oblique fracture — an injury which is produced by some degree of twisting.
Dr. Hendrickson testified that the fractured femur was not the type of injury a perambulatory child could accomplish by himself. He also concluded that the oblique fracture, combined with the 10-12 posterior rib fractures and the fractured arm, was specific for child abuse. Moreover, in the absence of any explanation, the different ages of L.C.'s injuries suggested non-accidental injury. Additionally, Dr. Hendrickson testified that the fracture of the femur required a specific type of motion where the femur would have been pushed down from the outside in front. In Dr. Hendrickson's opinion, Mr. Conner's explanation for the injury was not consistent with the injury. And Dr. Hendrickson was unable to imagine a set of facts consistent with Mr. Conner's explanation that could have caused L.C.'s injury. Dr. Hendrickson testified that L.C. did not suffer from osteogenesis imperfecta
(OI), brittle bone disease.
Dr. Terry Lewis, a diagnostic radiologist with subspecialty training in pediatric radiology, concluded that the fracture in the right femur was a new injury. Dr. Lewis did not believe that L.C. suffered from OI because his bones were of normal size and density. She testified that she did not usually see this type of injury except where excessive force had been used or where there was a history of an injury such as a motorcycle accident or a very heavy, large object falling directly on the leg such that the person needed to be rescued. Dr. Lewis concluded that Mr. Conner's explanation involving the apnea monitor cord causing the fracture could not have happened because the cord is not strong enough to break this bone and the cord would be more likely to disconnect from the monitor. In Dr. Lewis's opinion, L.C.'s injuries were inflicted on him in a non-accidental manner. Nicholas Long testified that he knew the Conners and visited their home approximately three to five times per week. Mr. Long's last visit had been on February 8, 2004. Mr. Long believed that Mr. Conner handled L.C. too roughly. On one occasion, when Mr. Conner learned that Ms. Conner had been stopped by the police, Mr. Long saw Mr. Conner grab L.C. and put him violently into a car seat. Mr. Long also observed other incidents when L.C. was picked up inappropriately by Mr. Conner and when Mr. Conner used excessive force to burp L.C. Mr. Long also saw bruises on L.C.'s mouth caused by Mr. Conner shoving the pacifier in L.C.'s mouth.
Mr. Long's girlfriend, Nicole Lawrence, also testified. Ms. Lawrence was a friend of Ms. Conner. Ms. Lawrence testified that Mr. Conner was rough with L.C. She observed Mr. Conner burp the baby in a way that was hard for a premature baby. Ms. Lawrence saw Mr. Conner lift the baby under the arms instead of supporting his head. She also saw Mr. Conner put the baby on the bed roughly and then shove the pacifier in his mouth. Ms. Lawrence was present during the incident where Mr. Conner sat the baby down hard and put the pacifier in his mouth. When she visited the Conner home on February 8 and saw L.C.'s swollen leg, Mr. Conner told her that the injury may have been caused when the baby was kicking his leg or by the way the baby had been lying earlier.
A public health nurse, Kelly Anderson, testified that L.C. had been in neonatal intensive care until December 17, 2003. As part of her duties, Ms. Anderson scheduled a follow-up visit with Ms. Conner for December 29. When the time for the meeting came, Ms. Anderson called to confirm the appointment and Mr. Conner told her not to come because they did not need her services.
Mr. Conner and his family lived with Fredrick Henry, Ms. Conner's father, from the time L.C. got out of the hospital in December 2003, until sometime in February, 2004. Mr. Henry testified that he thought Mr. Conner burped L.C. a little hard and that the procedure Mr. Conner used to help L.C. have a bowel movement was unusual. Mr. Henry stated that 15-17 people went in and out of the house from late December 2003 through mid-February 2004.
Mr. Conner testified that he and his wife were L.C.'s primary caregivers 90 percent of the time. Mr. Conner could not remember any incidents occurring between February 2 and February 9. He also could not recall any incidents when L.C. cried in response to a severe trauma under his care. Mr. Conner did not believe that he burped the baby too hard and no one had ever mentioned anything about this to him. When L.C. was in intensive care, some of the nurses taught Mr. Conner how to push L.C.'s legs up on his abdomen to help with his bowel movements. Mr. Conner performed this procedure on L.C. approximately twice a week.
Detective Jerry Taylor was the officer responding to the child abuse complaint. After being advised of his constitutional rights, Mr. Conner informed the detective that the only thing he could think of was that L.C. got the monitor wires wrapped around his legs and people tripped over it. The detective told Mr. Conner that he was aware the couple had an argument on February 8. Mr. Conner stated that only he and his wife took care of the baby and that he had never handled L.C. roughly. Later, Detective Taylor went to the home where the Conners were living and discovered that the baby's bed and the apnea monitor cords had been removed from the house. Mr. Conner was charged with three counts of second degree assault of a child. The jury returned a verdict on count 1 which related to the broken femur. The jury was unable to reach a decision as to count 2 and count 3, which related to the fractured ribs and the broken arm. The court declared a mistrial on count 2 and count 3 and these counts were subsequently dismissed. Mr. Conner appeals.
ANALYSIS
Was there sufficient evidence to support Mr. Conner's conviction? When reviewing the sufficiency of the evidence, the question is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993). All reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
A defendant claiming insufficiency of the evidence admits the truth of the State's evidence and all inferences that can reasonably be drawn therefrom. State v. Myers, 133 Wn.2d 26, 37, 941 P.2d 1102 (1997). Circumstantial evidence is not considered to be any less reliable than direct evidence. Id. at 38; State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). A fact finder is permitted to draw inferences from circumstantial evidence so long as these inferences are rationally related to the proven fact. State v. Bencivenga, 137 Wn.2d 703, 707, 974 P.2d 832 (1999).
When determining whether the necessary quantum of evidence exists, the reviewing court asks whether substantial evidence supports the elements of the crime charged. State v. Cleman, 18 Wn. App. 495, 498, 568 P.2d 832 (1977). Substantial evidence is that quantum of evidence necessary to establish circumstances from which the jury could reasonably infer the fact to be proved. Id. In our review of the evidence, we need not be convinced of the defendant's guilt beyond a reasonable doubt; instead, we need only conclude that substantial evidence supports the State's case. See State v. Fiser, 99 Wn. App. 714, 718, 995 P.2d 107 (2000). Questions of conflicting testimony, witness credibility, and persuasiveness of the evidence are left for the trier of fact and this court will not interfere with them. State v. Lubers, 81 Wn. App. 614, 619, 915 P.2d 1157 (1996).
In order to convict Mr. Conner of the crime of second degree assault of a child, the State had to prove that (1) Mr. Conner was 18 years old when the incident occurred; (2) the victim was under age 13; (3) Mr. Conner intentionally assaulted L.C.; and (4) the assault resulted in the reckless infliction of substantial bodily harm. See RCW 9A.36.130. Mr. Conner first contends that the State failed to establish recklessness. `A person is reckless or acts recklessly when he knows of and disregards a substantial risk that a wrongful act may occur and his disregard of such substantial risk is a gross deviation from conduct that a reasonable [person] would exercise in the same situation.' RCW 9A.08.010(1)(c). There is sufficient evidence to support a finding of recklessness. Dr. Lewis testified that she did not see this kind of injury absent excessive force or a history of a motorcycle accident or when a very heavy object was dropped on the leg. Three physicians testified that L.C.'s injury was caused by a non-accidental injury. This testimony supports a finding that the leg injury was caused by reckless and intentional conduct.
Mr. Conner's primary argument is that there is insufficient evidence to establish that he was the person who injured L.C. There is sufficient evidence to allow this court to draw inferences supporting the conviction. L.C. was a three-month-old perambulatory and preverbal baby when his femur was fractured. The injuries to L.C.'s femur, ribs, and arm happened at different times and were specific to child abuse. The injury to the femur was caused by force and some twisting. Mr. Conner was one of the primary caregivers who was with the child 90 percent of the time. Several witnesses testified that they had observed Mr. Conner handle L.C. roughly. Mr. Conner's demeanor in the emergency room raised concerns among emergency room personnel. In contrast, Ms. Conner's demeanor in the emergency room was common in non-abusers.
Mr. Conner told two different stories as to how the fracture occurred. He told Ms. Lawrence that the injury was caused by the way L.C. was kicking or lying in his bed. Mr. Conner told everyone else that the injury was caused when the cord to the apnea monitor wrapped around L.C.'s leg and someone tripped over the cord. Three physicians testified that L.C.'s injury could not have been caused by this type of accident. In fact, all of the physicians testified that this injury was the result of non-accidental conduct.
Mr. Conner maintains that the evidence is insufficient because there is no evidence linking him to L.C.'s injury. In State v. Craven, 69 Wn. App. 581, 582, 849 P.2d 681 (1993), Ms. Craven was convicted of second degree assault for injuries sustained by the son of her live-in boyfriend. The prosecution's theory was that Ms. Craven had engaged in a systematic pattern of abuse. Id. at 588. The prosecution established that except for a three-hour period, Ms. Craven was the sole care-giver during the three-week charging period. Id. The court affirmed Ms. Craven's conviction even though no one had witnessed the abuse and no witness could testify as to a single incident of abuse. Id. at 589 n. 7.
While there may be no direct evidence linking Mr. Conner to L.C.'s injury, there is sufficient circumstantial evidence to support his conviction. This court must view all the evidence in the light most favorable to the State and make all reasonable inferences in favor of the State. Salinas, 119 Wn.2d at 201. Of equal importance, this court must defer to the jury on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
There is sufficient evidence to support Mr. Conner's conviction.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, J., and SCHULTHEIS, J., concur.
Judge Philip J. Thompson is serving as a judge pro tempore of the Court of Appeals pursuant to RCW 2.06.150