State v. Beason

• Decision Date: 11 October 2000
• Parties: STATE of Oregon, Respondent, v. Roger Lynn BEASON, Jr., Appellant.
• Court: Oregon Court of Appeals

12 P.3d 560

170 Or. App. 414

STATE of Oregon, Respondent, v. Roger Lynn BEASON, Jr., Appellant.

(970634550; CA A101648)

Court of Appeals of Oregon.

Argued and Submitted August 28, 2000.

Decided October 11, 2000.

Daniel M. Carroll, Deputy Public Defender, argued the cause for appellant. With him on the briefs was David E. Groom, State Public Defender.

Ann Kelley, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before LANDAU, Presiding Judge, and BREWER, Judge, and WARREN, Senior Judge.

BREWER, J.

Defendant appeals from his separate convictions for intentional murder and murder by abuse arising from the death of a single victim. ORS 163.115.¹ We address defendant's contentions that the trial court erred by (1) denying his motion for judgment of acquittal for murder by abuse; (2) denying his motion for judgment of acquittal for intentional murder; (3) declining to merge the charges into a single conviction; and (4) imposing partially consecutive sentences on the convictions. Defendant's remaining assignment of error does not require discussion. We review for errors of law. ORS 138.220. We conclude that the court properly denied both motions for judgment of acquittal but that the separate charges must be merged into a single judgment of conviction. We thus vacate and remand the convictions for entry of one conviction of murder and resentencing.

Because defendant was convicted by a jury, we state the facts and all reasonable inferences that properly may be drawn from them in the light most favorable to the state. State v. Cervantes, 319 Or. 121, 125, 873 P.2d 316 (1994). Paramedics responding to a 9-1-1 call at defendant's residence found an unconscious infant who was not breathing. All efforts to resuscitate the victim were unsuccessful. In the course of examination, the paramedics discovered that the victim's skull was severely fractured. The victim was transported to the hospital, where he was pronounced dead. The next day, the medical examiner, Dr. Gunson, performed an autopsy. Gunson determined that the skull fracture discovered by the paramedics likely caused immediate death. However, Gunson also documented 18 separate injuries to the victim's head and additional injuries to the face, lips, and jaw. Injuries were found on all planes of the victim's head—front, back, left, right, and top. In addition, the underside of his scalp showed bruising and bleeding around the brain. An examination of the brain revealed a neurological injury that occurred at least 12 hours before death. Gunson also observed scarring in neurons of the brain. Both of the victim's eyes showed signs of retinal hemorrhaging, and one retina was detached. His neck was bruised and scraped, and his tongue showed evidence of having been bitten. Six fractured ribs were partially healed. The victim's spine was fractured, which, according to Gunson, caused immediate paralysis. The examination showed no damage to internal organs except for a small bowel contusion.

Gunson concluded that the victim died as a result of Battered Child Syndrome, with massive terminal head injuries. She testified that the injuries resulted from at least three separate incidents of abuse, judging by the healing progress of each injury. The terminal skull fracture and fractured spine were fresh, indicating that they occurred just before death. Contusions under the scalp were three to five days old, and partial healing dated the broken ribs at two to six weeks old. According to Gunson, the fractured ribs would have made breathing painful for the victim and probably made him "fussy."

Defendant, who lived with the victim's mother, Rene Courtenay, soon became a focal subject of the ensuing homicide investigation. Police officers interviewed defendant several times, both before and after he was arrested. Defendant gave several versions of the events leading to the victim's death, eventually settling on the following account: On the day of the death, defendant stayed home from work because he was sick. He decided to take a shower and took the victim with him from the downstairs living room. Defendant said that taking showers often seemed to calm the victim. Defendant claimed that he slipped as he stepped out of the shower while holding the victim. As a result, defendant fell to the floor with his full weight crushing the victim against the bathtub. Defendant took the victim into a bedroom and said he could feel the victim reaching out to hold his finger on the way into the bedroom. Defendant placed the victim on his stomach, and defendant said the victim raised his bottom into the air, as he normally did before sleeping. Defendant napped next to the victim for a while, and Courtenay joined them for a few minutes. Defendant and Courtenay eventually decided to go downstairs and watch television, leaving the victim alone. After watching television for a while, defendant went back upstairs and checked on the victim. He saw that the victim was not breathing and shouted for Courtenay to call 9-1-1.

The police also asked defendant about his knowledge concerning the victim's prior injuries. Defendant admitted that the victim had been with him when some of those injuries occurred. He said that he had tripped with the victim and fallen down the stairs two months earlier and that the victim's head struck the wall during the fall. A second time, three weeks before the victim's death, defendant had taken the victim to the basement because he was crying. Courtenay later woke defendant in the basement to ask about a "mushy spot" on the victim's head, but defendant said he did not know the cause.

At trial, Dr. Erwin, who examined the victim in the emergency room, testified that defendant's account of the bathtub incident failed to explain the victim's fresh injuries. First, she reasoned, if defendant had fallen on the victim, the spinal fracture would have been surrounded by bruising and attended by extensive damage to internal organs. In addition, the spinal fracture would have paralyzed the victim immediately, making it impossible for him to raise his bottom in the air, as defendant claimed. Next, had the victim's spine broken on the edge of the tub, as defendant contended, his skull fracture would have been lineal, rather than the shattering fracture that Erwin found. Having sustained both skull and spinal fractures, the victim would have been able neither to raise his bottom nor grasp defendant's finger, as defendant claimed. A fall immediately before death could not have caused the older injuries, which were partially healed. Instead, Gunson testified that the autopsy findings were "classic" examples of Shaken Impact Syndrome.

"In that syndrome[,] there is violent shaking of the child with an impact usually against a broad-based object such as a floor, a wall, or bed or couch. In this case, because of the severity of the fractures, it is more likely that the impact was against some hard object than against some soft object.

"When we combine that with the fracture of the back[,] which is occurring in about the midback area, we can see a scenario where the child is grasped around the lower part of the body or the legs, perhaps shaken violently and impacted against a hard object. That is the only way I can conceive of having the fresh injuries that we see in the head * * * and the fracture of the back with that violent arching that had to occur."

Courtenay also testified about injuries the victim sustained while in defendant's care. Two months before the victim's death, defendant told her that he had fallen down the stairs while carrying the victim, resulting in a large bump on the victim's head and a lip injury. Courtenay also described the occasion, three weeks before the victim's death, when she awakened defendant in the basement to ask about similar injuries. She testified that defendant became angry, punched a door, and told her that the victim might have hurt his head on a toy. Defendant discouraged Courtenay from taking the victim to the doctor. He told her that she could be tested for drugs and might lose custody of her children. On a third occasion, within a week of the death, defendant returned from the store with the victim, whose lip was bleeding. Again, defendant told Courtenay that he had slipped and fallen while carrying the victim. Courtenay took the victim from defendant, who became angry that Courtenay was more concerned about the victim than about defendant.

Courtenay also read to the jury a note written by defendant in which defendant discussed each of her five children.

"Your children, number one. This is one that has to be broke down. Jacob, all-around good kid, spoiled and pampered by grandma too fucking much and needs his ass blistered when he goes off, just to show him that he's nothing but a kid. Pete, the all-around not so good kid unless he thinks there's something in it for himself or getting someone else in trouble. Needs ass whipping in his life to show him he's not so good. Andrew, great kid, my second. Needs a little guiding hand to stop any bad habits that might arise, not to mention change-your-life whipping. Christian, good kid potential but not until he gets more attention and loving than he does, a lot more. Being the second to last is hard and just for moral'—I'm not sure what this word is—attention and because he needs a good old ass whipping.

"[The victim], well, he needs what all of them do, love, lots of attention and mama to stop overbabying him, not to mention break from sucking eggs, swats, legs, hands, not hit but swatted. The crying, put him in his own room, closet drawer or whatever and let him rip until he can't rip anymore. You rest in quietness, attention, and me, me, me, so please don't be mad at me for what I feel."

Gloria Kennedy, Courtenay's mother, testified about defendant's conduct toward the victim....