Opinion
No. 847SC812
Filed 2 April 1985
Parent and Child 2.2; Homicide 21.9 — death of child — involuntary manslaughter — sufficiency of evidence The State's evidence was sufficient to support defendant's conviction of involuntary manslaughter of a two-year-old child where it tended to show that the child had been left in the custody of defendant and her husband some four days prior to her death; the child had no bruises or scratches at that time; the child was seen approximately five hours before her death by a witness who testified that the child looked fine and was walking normally; defendant had exclusive custody of the child during the five hours prior to her death; examination of the child revealed numerous recent bruises and scratches probably received within twelve hours of death; an autopsy indicated a subdural hematoma, or bleeding inside the child's skull, probably caused by violent shaking; and the hematoma was a significant cause of death.
APPEAL by defendant from Allsbrook Judge. Judgment entered 7 March 1984 in NASH County Superior Court. Heard in the Court of Appeals 8 March 1985.
Attorney General Rufus L. Edmisten, by Assistant Attorney General George W. Boylan, for the State.
Henson, Fuerst Willey, P.A., by Ralph G. Willey, III, for defendant.
Judge BECTON dissenting.
Defendant was indicted for involuntary manslaughter in the death of a two year old child. The state's evidence tended to show the following: the child's mother left the child with defendant and her husband while away on a week-long trip. Defendant had cared for the child on numerous prior occasions. The child had no bruises or scratches when placed in defendant's care on 6 August 1983. Another witness saw the child on the morning of 10 August 1983 when defendant dropped her husband off at work; the child appeared fine and was walking normally, and the witness noticed no injuries. Defendant brought the child to the hospital about five hours later, after the baby stopped breathing. Defendant told police at the hospital that the child beat its head against the crib through the previous night. She stated that she noticed something was wrong when the child woke up briefly after an afternoon nap. Defendant also stated that no one else had had access to the child during the day. Examination of the child revealed numerous recent bruises and scratches, probably received within twelve hours of death. The state presented one medical expert, a pathologist. His autopsy indicated a subdural hematoma, or bleeding inside the child's skull, probably caused by violent shaking. The hematoma was a significant cause of death.
Defendant presented no evidence directly. Her evidence on cross-examination tended to show that her relationship with the child was very loving, and that she and her husband had offered to adopt the child. In addition, the child was suffering at the time of death from severe malnutrition of a longstanding nature, as well as being severely dehydrated, although the dehydration could have occurred within periods of as little as twelve hours. Dehydration alone might have been fatal, but the pathologist had no prior body weight from which to compute percentage loss of body fluid and therefore could express no opinion as to the actual threat. The pathologist could not isolate any single factor, including the hematoma, as the cause of death.
The jury returned a verdict of guilty, and defendant received the presumptive sentence. Defendant appealed.
Defendant argues only one assignment of error, challenging the denial of her motions to dismiss the charges against her. She argues several questions under the one assignment.
The evidentiary principles governing motions to dismiss are set out at length in State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982). Briefly summarized, they are that the evidence must be considered in the light most favorable to the state, with the benefit of all permissible favorable inferences. If the trial judge finds substantial evidence, regardless of weight, of each essential element of the crime, and that defendant committed it, the motion should be denied. Defendant's evidence, unless favorable to the state, is not considered.
Defendant argues that the state, having introduced uncontradicted evidence of her exculpatory statement that the child had beat her head on the crib, was bound by it. The state would only be bound by such a statement, however, if it could produce no other evidence tending to throw a different light on the death. State v. Wooten, 295 N.C. 378, 245 S.E.2d 699 (1978); State v. Bright, 237 N.C. 475, 75 S.E.2d 407 (1953). The state need not produce any single circumstance flatly contradicting the defendant, but may contradict the exculpatory statement using the totality of the circumstances adduced. State v. Wooten, supra. The nature of this type of case, in which the victim, even if he or she survives the assault, likely cannot testify thereto, renders such a rule practical and necessary. See State v. Smith, 40 N.C. App. 72, 252 S.E.2d 535 (1979). See also Marshall v. State, 646 P.2d 795 (Wyo. 1982) ("only one can talk"). There was ample circumstantial evidence establishing some assaultive behavior, and expert opinion testimony that the fatal injuries were not self-inflicted. This sufficed to contradict defendant's statement.
Along the same lines, defendant argues that her motion should have been granted, since the evidence establishes other equally credible theories of the cause of death. This argument simply restates a no longer valid premise, that circumstantial evidence must exclude every reasonable hypothesis other than guilt to go to the jury. Whatever conflict in authority remained on this issue was settled in State v. Jones, 303 N.C. 500, 279 S.E.2d 835 (1981). To the extent that State v. Langlois, 258 N.C. 491, 128 S.E.2d 803 (1963) relied on the questioned premise, it appears to have been overruled by Jones. See State v. Smith, supra (questioning Langlois). We also note that Langlois antedated our current child abuse laws and judicial recognition of the "battered child" problem. See N.C. Gen. Stat. 14-318.2 (1981); State v. Fredell, 283 N.C. 242, 195 S.E.2d 300 (1973); M. Thomas, Child Abuse and Neglect Part II: Historical Overview, Legal Matrix and Social Perspectives on North Carolina, 54 N.C.L. Rev. 743, 767-74 (1976). The only sort of modern case we have found calling for application of a rule that the state exclude all reasonable hypotheses inconsistent with guilt is one where the state presents no evidence that the accused was present at the scene of the crime. See State v. Morton, 230 Kan. 525, 638 P.2d 928 (1982). Such was not the case here. The evidence showed that defendant had observed the victim through the previous night and had exclusive custody of the victim during the five-hour period following her last appearance as a healthy child, and that the fatal injuries were very recent, inflicted within the last twelve hours. This sufficed to take the case to the jury.
Even if we accept Langlois as authoritative we conclude that it is distinguishable on its facts. There the victim died as a result of a single hard blow administered some 24 to 48 hours prior to death. The evidence linking defendant to the act consisted only of a general pattern of punishment. Exclusive control of the infant was not established. Here, on the other hand, the state's evidence showed a fatal combination of recent injuries administered while the victim was in defendant's custody, including exclusive custody in the five hours before death. The child had been seen beforehand by someone who was familiar with her and who testified that she looked fine and was walking normally. Langlois does not control.
Our adherence to Jones also means we reject defendant's contention that the state had to exclude the possibility that death may have resulted from the infant's long-term weakened condition. It is well established that a preexisting physical condition, but for which the allegedly criminal conduct would not have been fatal, does not excuse criminal responsibility. State v. Luther, 285 N.C. 570, 206 S.E.2d 238 (1974) (heart attack brought on by assault); see also State v. Atkinson, 298 N.C. 673, 259 S.E.2d 858 (1979) (victim a "walking bombshell"); State v. Alford Jones, 290 N.C. 292, 225 S.E.2d 549 (1976) (intervening negligence in treatment no excuses. This rule is particularly apposite in cases like the present one, where the accused has some control of the physical well-being of the decedent.
Finally, defendant attacks the evidence causally connecting the child's injuries and death. The pathologist testified positively for the state that the child's numerous injuries were not self-inflicted, that the child would not have died but for them, and that the subdural hematoma was a significant cause of death. He testified that the hematoma could have been caused by violent shaking causing tearing of the blood vessels between the dura and the brain, adding that death could result either from swelling of the brain or from rapid trauma to the brain from alteration of the blood supply. This testimony was properly admitted. State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978). It sufficed to take the state's case on causation to the jury. State v. Earnhardt, supra. The fact that the pathologist could not definitely identify the hematoma as the cause of death does not negate his testimony. State v. Luther, supra. Nor does the pathologist's inability to describe exactly the attack that produced the hematoma negate his testimony. State v. Lane, 39 N.C. App. 33, 249 S.E.2d 449 (1978) (similar facts; pathologist testified shaking "could" cause hemorrhage, but could not exclude other possibilities). These aspects of the expert testimony went to the weight of the testimony, not to its sufficiency. State v. Reynolds, 307 N.C. 184, 297 S.E.2d 532 (1982). Defendant's reliance on the lack of edema, or swelling, of the brain focuses inordinately on one isolated part of the pathologist's testimony, ignoring his opinion that the probable cause of death was a combination of intentional injuries culminating in a rapid trauma to the brain induced by violent shaking.
We conclude that the motion to dismiss was correctly denied. Our review of recent cases in North Carolina and other states lends support. As noted above, we have already affirmed one conviction on similar evidence. State v. Lane, supra. We have also affirmed a conviction on similar medical evidence ("could cause" hemorrhage) coupled with admission of beatings. State v. Vega, 40 N.C. App. 326, 253 S.E.2d 94, disc. rev. denied and appeal dismissed, 297 N.C. 457, 256 S.E.2d 809, cert. denied, 444 U.S. 968 (1979). The decision of our supreme court in State v. Byrd, 309 N.C. 132, 305 S.E.2d 724 (1983), reversing a similar conviction, is distinguishable: there the state relied on evidence that another child was abused, questions of access to the child were unclear, and the examining pathologist concluded death resulted from natural causes.
Decisions of other states reflect a general rule that it is not necessary to prove exactly which blow is fatal as long as the prosecution establishes (1) a pattern of violent behavior towards the child, or exclusive control, (2) a pattern of non-accidental injuries, and (3) probability of death from such injuries. See State v. Vega, supra; State v. Lane, supra; State v. Austin, 84 S.Dak. 405, 172 N.W.2d 284 (1969); State v. Morton, supra; Fiorot v. State, 641 P.2d 551 (Okla.Crim.), cert. denied, 456 U.S. 1011 (1982); State v. Abram, 537 S.W.2d 408 (Mo. 1976); State v. Felo, 454 So.2d 1150 (La.App. 1984); State v. Durand, 465 A.2d 762 (R.I. 1983); Bean v. State, 460 N.E.2d 936 (Ind. 1984). This case fits this general rule. And the theory of cause of death here, violent shaking, resulting in subdural hematoma, has been accepted as legally sufficient in other cases. State v. Lane, supra; State v. Austin, supra; see also State v. Durand, supra (no direct evidence of cause of hematoma; substantial evidence negated accident, conclusion that sole custodian inflicted injury "flows logically from the totality of the circumstances").
Defendant's motions to dismiss were properly denied. We conclude that she received a fair trial, free of prejudicial error.
No error.
Judge WHICHARD concurs.
Judge BECTON dissents.