Opinion
No. 26090-9-III.
October 14, 2008.
Appeal from a judgment of the Superior Court for Grant County, No. 04-1-00312-4, John M. Antosz, J., entered April 9, 2007.
Affirmed in part and reversed in part by unpublished opinion per Korsmo, J., concurred in by Sweeney and Brown, JJ.
Appellant Maribel Gomez was convicted at bench trial of homicide by abuse and first degree manslaughter in the death of her two-year-old son, Rafael. She argues that the evidence is insufficient to support the homicide by abuse conviction because she did not engage in a pattern of torture or abuse. The trial court concluded otherwise and we believe the evidence supports that determination. The parties agree that the manslaughter conviction must be vacated if the homicide by abuse conviction is affirmed. So do we. Accordingly, we affirm the homicide by abuse conviction and vacate the manslaughter conviction.
FACTS
The trial evidence established that the short life of Rafael Gomez was a very sad one. Born in the back seat of a car on August 7, 2001 with methamphetamine, cocaine, and other controlled substances in his system, Rafael was placed in foster care three days later. The next month he was declared a dependent child. He stayed with foster parents Denise and Bruce Griffith until June 4, 2002, when he was returned to Ms. Gomez.
Three months later he was taken to a hospital with a fractured tibia in his right leg and numerous handprint-shaped bruises on his abdomen and back. He was returned to the custody of the Griffiths on September 21. Five days later he was returned to Ms. Gomez. Angelita Karlsson of the Grant County Parent Child Assistance Program made an unannounced visit to Ms. Gomez on October 2. She observed a bump and a bruise on Rafael's forehead. Ms. Gomez claimed that the child would bang his head on his crib until he fell asleep.
On December 6, Rafael was hospitalized with a broken left femur. He was also diagnosed with the following additional injuries: (1) a pinch mark bruise to his right ear; (2) an infected scab injury to the occipital scalp; (3) burns on his left hand; (4) a burn on his tongue; (5) an occipital skull fracture. Ms. Gomez claimed the skull injury had occurred when Rafael scraped his head on a chair. Suspecting child abuse, the attending physician contacted the police and Child Protective Services (CPS).
Rafael was returned to the Griffiths on December 9. They both observed that he was now in fear of women. A daycare provider, Hollie Halliday, noticed the same thing. Rafael was returned to the custody of his mother on March 21, 2003. Two months later Ms. Karlsson noticed a bruise on Rafael's cheek. His mother claimed it was an allergic reaction to Cheetos.
On September 9, 2003, Ms. Gomez took Rafael to a neighbor's house. He was unconscious and not breathing. From there he was taken to an Ephrata hospital. He was placed on machine-assisted breathing and his heart function restored. He was then airlifted to Sacred Heart Medical Center in Spokane. He never regained consciousness and was not able to breathe without a machine. He was declared dead the next day at age 25 months.
While Rafael was still being treated, police contacted his mother. She told them that on September 9 she had been feeding him "noodle soup." He threw himself on the floor and banged his head twice. She gave him more soup and Rafael again threw himself on the floor; his eyes rolled back. Ms. Gomez also told police that several weeks earlier Rafael had fallen off his bed onto his head.
An autopsy was conducted in Spokane. It revealed an extensive litany of injuries:
(1) abrasions of the face, scalp, and right ear; (2) subgaleal hemorrhages of the occipital scalp and supragaleal hemorrhage of the frontal scalp; (3) occipital skull fractures; (4) focal organizing epidural hemorrhage; (5) acute subdural and subarachnoid hemorrhages; (6) focal acute ischemic changes of the cerebrum; (7) bilateral retinal hemorrhages; (8) contusions to the back and upper extremities; and (9) periosteal and epiphyseal-metaphyseal injuries of the proximal humeri. Pathologist Dr. Marco Ross determined that the skull fractures were recent ones superimposed on a previous injury. He concluded that Rafael died from blunt force injuries to the head and classified the death as a homicide.
Ms. Gomez was charged with one count of homicide by abuse and one count of first degree manslaughter. She waived her right to jury trial and proceeded to a bench trial. The State's experts testified that the noted injuries were consistent with abuse. The cause of death was blunt force trauma to the head which caused the brain to swell and stop the child's breathing mechanism.
Ms. Gomez testified that the injuries were self-inflicted. She also testified that Rafael had behavior problems and would bite, pinch, and throw himself. Dr. Janice Ophoven, testifying for the defense, agreed that Rafael was an abused child, but believed he died from asphyxiation due to choking on his food.
The trial court determined that Rafael died from blunt force trauma to the head and found Ms. Gomez guilty on both charged counts and imposed concurrent sentences of 320 months on the homicide by abuse conviction and 102 months on the manslaughter conviction. After her motion for arrest of judgment was denied, Ms. Gomez appealed to this court.
ANALYSIS Motion to Strike
As a preliminary matter, we must first address the appellant's motion to strike portions of the respondent's brief and its assignment of error relating to the testimony of Alicia Estrada. Ms. Estrada testified to numerous instances of abuse by Ms. Gomez, including throwing, kicking, shaking, slapping, and dropping Rafael, as well as picking him up or carrying him by his ears and hair. The State included this testimony in its brief. It also assigned error to the trial court's factual finding, no. 2.6, that the testimony of Ms. Estrada "was often contradictory and often made no sense." Ms. Gomez moved to strike the testimony and the assignment of error on the bases that the State did not file a cross appeal and that the trial court did not consider the evidence, so this court cannot do so either.
A respondent is not required to file a cross appeal in order to challenge a factual finding. State v. Kindsvogel, 149 Wn.2d 477, 481, 69 P.3d 870 (2003); State v. Bobic, 140 Wn.2d 250, 257-258, 996 P.2d 610 (2000). This is because an argument for affirmance is not a request for affirmative relief. Id. Only a party seeking actual "relief from the decision" need file a cross appeal. RAP 5.2(f). In essence, a respondent must seek a change in the judgment before there is need to file a cross appeal. There was no need to do so here.
The other aspect of this argument presents an interesting procedural question — can a reviewing court addressing an evidentiary sufficiency challenge consider evidence that the trier of fact expressly said it did not consider? The standard of review, discussed infra, involves the evidence presented at trial rather than that expressly relied upon. The question is not truly presented in this case, however, as the trial court did not expressly reject the testimony or otherwise indicate that it did not rely upon it. Rather, the court found Ms. Estrada's testimony "often contradictory" and that it "often made no sense." While this suggests the testimony might not have been considered credible en toto, there is no finding to that effect. Even if there had been such a finding, we believe it would only go to whether the evidence could or could not be considered in the argument section of a brief. We do not believe a party is precluded from including trial testimony in its statement of the case, even if the testimony was expressly not considered by the trial court. Accordingly, we deny the motion to strike.
Sufficiency of the Evidence
The sufficiency of the evidence to support a verdict is reviewed according to long-settled principles. The reviewing court does not weigh evidence or sift through competing testimony. Instead, the question presented is whether there is sufficient evidence to support the determination that each element of the crime was proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); State v. Green, 94 Wn.2d 216, 221-222, 616 P.2d 628 (1980). The reviewing court will consider the evidence in a light most favorable to the prosecution. Id.
Eschewing the testimony of Ms. Estrada, and arguing the testimony of an older sister that Rafael had on at least one occasion hurt himself and of her expert disputing the cause of death, appellant contends that the evidence was not sufficient to support the conviction for homicide by abuse. Her focus is incorrect. A reviewing court must consider the evidence most favorably to the prosecution. State v. Green, supra. In essence, contradictory evidence must be ignored when reviewing the sufficiency of the evidence since it is the job of the fact-finder, not the appellate court, to choose which evidence to believe.
Even without considering the testimony of Ms. Estrada, which set forth a significant number of assaults by Ms. Gomez on her son, the evidence amply supported the bench verdict. As charged, the State was required to prove that under circumstances manifesting extreme indifference to human life, Ms. Gomez caused the death of Rafael by a pattern or practice of assaulting or torturing him. RCW 9A.32.055(1). There is significant evidence of a pattern of assault. The numerous injuries, inflicted over a period of time as documented in the two earlier hospital visits and in the autopsy report, show repeated assaults. Rafael's skull twice was fractured and healed before the final fatal fracture. His left femur and right tibia, both strong bones, were fractured on separate occasions. Numerous cigarette burns were documented. This certainly suggested a pattern of abuse. State v. Russell, 69 Wn. App. 237, 247, 848 P.2d 743, review denied, 122 Wn.2d 1003 (1993). Many of the injuries, especially the burns, were undoubtedly painful and satisfied the definition of "torture." Id. The trier-of-fact could easily determine on this evidence that there was a pattern of assault or torture. The pattern also suggests that Ms. Gomez was manifestly indifferent to Rafael's life.
That Ms. Gomez was the abuser was equally clear. She was the caregiver when Rafael was in her custody, which was not quite half of his brief life. She was the only adult present on September 9, 2003, when the fatal injuries were inflicted. He suffered no injuries while in foster care, but was oft-injured during the periods his mother cared for him. He showed a great fear of women after spending time with his mother. He showed great affection for his foster parents, but none for his mother. Even Ms. Gomez's own testimony showed that the child's injuries, which she alleged were self-inflicted, occurred during her watch. However, expert testimony disputed whether most of the observed injuries could even be self-inflicted and there was no indication that he ever attempted to injure himself while in foster care. The evidence permitted the trier-of-fact to conclude that Ms. Gomez was the assailant.
The medical testimony also amply showed that Rafael died from the injuries. The pathologist determined that death was caused by blunt force trauma to the head. Although the defense expert contested that determination and suggested a different cause of death, the conflict in the testimony was uniquely a determination for the trier-of-fact. The trial judge found that death was caused by blunt force trauma to the head. The evidence permitted that determination. It was therefore sufficient.
Properly viewed, the evidence supported the verdict. Accordingly, we affirm the conviction for homicide by abuse.
Double Jeopardy
Both the federal and state constitutions prohibit double jeopardy. Double jeopardy can arise in three different circumstances. As relevant here, double jeopardy prohibits multiple criminal convictions for one crime, absent evidence that the Legislature intended multiple convictions. In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004); State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995). In cases of homicide, the Legislature has intended that there be only one conviction for each killing. State v. Womac, 160 Wn.2d 643, 655-656, 160 P.3d 40 (2007). When multiple convictions have been entered when only one is permitted, the remedy is to vacate the lesser offense. State v. Weber, 159 Wn.2d 252, 265, 149 P.3d 646 (2006). The lesser offense is the lesser included offense or the one that carries the lesser punishment. Id. at 269.
In light of this, both parties recognize that the manslaughter conviction must be vacated if the homicide by abuse conviction is affirmed. We concur in that assessment. We remand to the trial court with directions to vacate the manslaughter conviction. The conviction for homicide by abuse is 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.