916 F.2d 497 (9th Cir. 1990), 89-30071, United States v. Boise

Docket Nº:89-30071.
Citation:916 F.2d 497
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Earl Foster BOISE, Defendant-Appellant.
Case Date:August 29, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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916 F.2d 497 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,


Earl Foster BOISE, Defendant-Appellant.

No. 89-30071.

United States Court of Appeals, Ninth Circuit

August 29, 1990

        Argued and Submitted Jan. 8, 1990.

        As Amended Sept. 27, 1990.

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[Copyrighted Material Omitted]

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        Kenneth Lerner, Asst. Federal Defender, Portland, Or., for defendant-appellant.

        William W. Youngman, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.

        Appeal from the United States District Court for the District of Oregon.

        Before WRIGHT, TANG and CANBY, Circuit Judges.

        EUGENE A. WRIGHT, Circuit Judge:

        In April 1988 Quinton Boise, a six-week-old baby, died on the Warm Springs Indian Reservation. Following an investigation, the government charged his father, Earl Boise, with second degree murder in violation of 18 U.S.C. Secs. 1111, 1153. A jury found him guilty and the court sentenced him to 240 months of imprisonment.

       I. Sufficiency of the Evidence

        Murder in the second degree is the "unlawful killing of a human being with malice aforethought." 18 U.S.C. Sec. 1111(a). Boise argues that, because there was insufficient evidence of second degree murder, the district court erred when it denied his motion for judgment of acquittal under Fed.R.Crim.P. 29(c). 1

        "[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction ... [is] whether the record evidence could reasonably support a finding of guilty beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979). Specifically, we ask whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319, 99 S.Ct. at 2789; United States v. Terry, 760 F.2d 939, 941 (9th Cir.1985). We respect, however, the exclusive province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts. United States v. Goode, 814 F.2d 1353, 1355 (9th Cir.1987) (citing United States v. Ramos, 558 F.2d 545, 546 (9th Cir.1977)).

        Our review of the record in the light most favorable to the government convinces us that a rational jury could have found Boise guilty beyond a reasonable doubt of second degree murder. We acknowledge that the evidence here, as in most child-abuse cases, is circumstantial. But if such evidence is of sufficient quality to convince a jury beyond a reasonable doubt, we require no more. See Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137-38, 99 L.Ed. 150 (1954).

        A. Evidence that Boise Killed Quinton

        Quinton died from bilateral skull fractures that resulted in severe subdural hemorrhaging. In the three hours before Quinton died, Boise admitted he was the sole adult caring for the child. Doctors Lewman, Creelman and Nakamura testified that in their medical opinions the blows most likely "occurred shortly before death." Although they acknowledged that such blows could have occurred the day before Quinton's death or before Boise alone cared for him, in that situation the boy would have shown symptoms of a coma, unconsciousness, vomiting and an inability to eat. No such symptoms were observed. 2

        Witnesses, including Quinton's mother, testified that he had acted normally the day before his death and earlier the day of his death. Boise's own medical expert, Dr. Brady, testified that this was not a "story of a continuous downhill progressive lethargy

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and change" and that there could well have been an injury very shortly before Quinton died. 3 See United States v. Harris, 661 F.2d 138, 141 (10th Cir.1981) (sufficient circumstantial evidence that defendant assaulted child where he admitted sole custody at the time when the child received the injuries which caused his death); United States v. Bowers, 660 F.2d 527, 529 (5th Cir.1981) (evidence that child was battered coupled with proof that he was in sole custody of parent may well permit jury to infer that the parent injured him).

        B. Evidence of Malice

        Evaluating the facts and circumstances, the jury infers whether malice is present. See United States v. Fleming, 739 F.2d 945, 947 (4th Cir.1984), cert. denied, 469 U.S. 1193, 105 S.Ct. 970, 83 L.Ed.2d 973 (1985).

Malice aforethought does not mean simply hatred or ill will, but also embraces the state of mind with which one intentionally commits a wrongful act without legal justification or excuse. It may be inferred from circumstances which show "a wanton and depraved spirit, a mind bent on evil mischief without regard to its consequences."

        United States v. Celestine, 510 F.2d 457, 459 (9th Cir.1975) (citing Government of Virgin Islands v. Lake, 362 F.2d 770 (3d Cir.1966)).

        From the circumstances of Quinton's death, the jury could rationally conclude beyond a reasonable doubt that Boise displayed "a wanton and depraved spirit, a mind bent on evil mischief without regard to its consequences." Celestine, 510 F.2d at 459. Physicians testified that Quinton died from two blunt force blows to the head that fractured his skull, causing subdural bleeding and swelling. They also testified that the injuries could not have been accidental, and were most likely caused when Quinton was hit with a hand or thrown against a wall.

        There was also evidence that Quinton had been abused previously. Although a blunt force injury to the head was the immediate cause of death, Larry Lewman, the Oregon State Medical Examiner who performed the autopsy, discovered older head injuries that had caused brain hemorrhaging, a broken left arm and 15 broken ribs. He testified that the head-brain injuries were probably caused by violent shaking and that the broken ribs resulted from compression type squeezing. 4

        The evidence showed that six-week old Quinton had received repeated beatings over a period of three and a half weeks and that, finally, two blows to the head, received when he was in Boise's care, killed him. From such evidence, the jury could rationally conclude beyond a reasonable doubt that Boise killed Quinton with malice aforethought.

       II. Admissibility of Prior Injuries, Evidence of Battered-Child Syndrome and Photographs

        We review the district court's evidentiary rulings for an abuse of discretion. United States v. Gillespie, 852 F.2d 475, 478-79 (9th Cir.1988).

        A. Autopsy Evidence of Prior Injuries

        The district court admitted evidence of Quinton's prior injuries. Evidence of other crimes, wrongs, or acts is inadmissible under Fed.R.Evid. 404(b) to prove a

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person's character, but may be admissible for other purposes such as intent or absence of mistake or accident. 5 The Supreme Court has addressed the question when similar act evidence is admissible under Rule 404(b). 6 Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988). There, the petitioner argued that the district court must "make a preliminary finding that the Government has proved the 'other act' by a preponderance of the evidence before it submits the evidence to the jury." Id. 108 S.Ct. at 1497.

        The Court found that the protection against unfair prejudice to the defendant came not from a requirement of a preliminary finding by the district court but from four other sources. Id. at 1502. A court should consider first whether under Rule 404(b) the evidence is probative of a material issue other than character. Id. at 1499, 1502.

        It should next decide whether the evidence is relevant. Id. at 1502. In the Rule 404(b) context, the Court analyzed what it called "questions of relevance conditioned on a fact" under Fed.R.Evid. 104(b), 7 and found that similar act evidence was relevant only if the jury could "reasonably conclude that the act occurred and that the defendant was the actor." Id. at 1501. In determining whether the government introduced sufficient evidence to meet Rule 104(b), the Court indicated that the district court should examine the evidence and decide whether the jury could reasonably find the condition by a preponderance of the evidence. Id.

        After finding evidence of prior bad acts admissible, a court should determine whether under Fed.R.Evid. 403 the probative value of the similar acts evidence is substantially outweighed by its potential for unfair prejudice. 8 Id., 108 S.Ct. at 1502. Finally, upon request, a court should instruct the jury under Fed.R.Evid. 105 that evidence of similar acts may be considered only for the proper purpose for which it is admitted. Id.

        Boise contends that Quinton's prior injuries were inadmissible under Rule 404(b) because there was insufficient evidence to support a finding that he inflicted them. Applying Huddleston, we find that the district court did not abuse its discretion when it admitted the evidence. See United States v. Lewis, 837 F.2d 415, 418-19 (9th Cir.), cert. denied, 488 U.S. 923, 109 S.Ct. 304, 102 L.Ed.2d 323 (1988).

        First, the prior abuse of Quinton was under Rule 404(b) probative of a material issue other than character; that is, it was evidence of malice and absence of accidental death. 9 See Lewis, 837 F.2d at 419 (acts

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of prior abuse admissible to prove the defendant acted with malice aforethought); United States v. Leight, 818 F.2d 1297, 1301, 1303 (7th Cir.) (prior acts relevant to show malice, knowledge and absence of accident), cert. denied, 484 U.S. 958, 108 S.Ct. 356, 98 L.Ed.2d 381 (1987); United States v. Colvin, 614 F.2d 44, 45 (5th Cir.) (pattern of...

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