Biles v. State, CR-95-2355

• Decision Date: 14 November 1997
• Docket Number: CR-95-2355
• Parties: Billy Glen BILES, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 878

715 So.2d 878

Billy Glen BILES, Jr. v. STATE.

CR-95-2355.

Court of Criminal Appeals of Alabama.

Nov. 14, 1997.

Rehearing Denied Jan. 30, 1998.

Certiorari Denied May 22, 1998

Alabama Supreme Court 1970849.

George Miller, Hartselle, for appellant.

Bill Pryor, atty. gen., and Hense R. Ellis II, asst. atty. gen., for appellee.

BROWN, Judge.

The appellant, Billy Glen Biles, Jr., was convicted of reckless manslaughter, a violation of § 13A-6-3(a)(1), Ala.Code 1975, and of child abuse, a violation of § 26-15-3, Ala.Code 1975. The victim was Biles's three-year-old stepdaughter. He was sentenced to 20 years' imprisonment on the manslaughter conviction and to 10 years' imprisonment on the child abuse conviction, with the sentences to be served consecutively.

I.

The appellant contends that the evidence was insufficient to support his convictions for manslaughter and child abuse.

"In determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider the evidence in the light most favorable to the prosecution."

Faircloth v. State, 471 So.2d 485, 489 (Ala.Cr.App.1984), aff'd, 471 So.2d 493 (Ala.1985).

The evidence, viewed in the light most favorable to the state, was as follows:

The victim, Hannah Kelly, was born on July 7, 1992. The appellant and Hannah's mother, Tina Biles, married on June 10, 1995, when Hannah was almost three years old. Hannah began experiencing difficulties soon after the couple's marriage. The appellant's neighbors testified that they occasionally heard yelling, loud noises, and crying in the Biles's apartment. According to the neighbors, some of these noises sounded like someone was hitting a wall or another person. Hannah appeared withdrawn and frightened after the appellant moved into the apartment with her and her mother. In August 1995, she developed bruises all over her body and sustained injuries to both of her ears. Hannah told her maternal grandmother, Sandra Kelly, that the appellant had pulled her ears. Hannah eventually had to get medical treatment for the injuries to her ears.

Dr. Merritt Sechuel, a physician at the University of Alabama at Birmingham and Children's Hospital in Birmingham, testified that he treated Hannah on August 5, 1995, for a laceration to her right eardrum. He testified that the appellant explained that he had been cleaning Hannah's ear with a Q-tip, when she jumped, forcing the Q-tip deep into her right ear. Dr. Sechuel noticed blood in the ear canal. He irrigated the ear and wrote a prescription for medicine. He did not observe any other injury to Hannah.

Dr. Andy Wooley, a pediatric ear, nose, and throat specialist, testified that on August 7, 1995, Dr. Sechuel referred Hannah to him for treatment. Dr. Wooley saw a small blood clot in Hannah's right ear canal. He also observed a hematoma (blood underneath the skin) on the external portion of her right ear. He testified that this injury is unusual for a small child and "is caused by a shearing mechanism or twisting type injury to the ear [that is usually seen] in wrestlers ... that get the ear twisted or boxed on the ear." (R. 430.) Dr. Wooley testified that the appellant explained that the injury might have occurred while he and Hannah wrestled. Dr. Wooley scheduled surgery for the next day to remove the hematoma, but the surgery was canceled because the hematoma had shrunk.

Dr. Wooley saw Hannah again on August 15, 1995, when she was admitted to Children's Hospital in critical condition. He observed several bruises on her body and significant bruising on both ears. Dr. Wooley noticed a much larger hematoma on her right ear than he had seen on August 7. Dr. Wooley stated that this injury was probably caused by "twisting" and that "[i]n order for this [injury] to develop you have to actually twist the skin off the cartilage ... that allows blood to develop between the skin and the cartilage...." (R. 435.) He also testified that the injuries to her ears could have been caused by "someone actually picking Hannah up by her ears." (R. 435.)

Sandra Kelly, Hannah's maternal grandmother, testified that on August 12, 1995, she took Hannah to the park. When she brought Hannah home, the appellant accused Hannah of chewing the fingernail polish off her fingernails. When Hannah and Ms. Kelly denied it, the appellant became angry. The appellant testified that after Ms. Kelly left he confronted Hannah again. After Hannah confessed to chewing her fingernails, the appellant spanked her with his belt. The appellant testified that Hannah then urinated on the sofa and he "popped her with [the] belt" again. (R. 937.)

According to the appellant, later that evening, Hannah complained to him and her mother that her stomach hurt and then she vomited several times. She was ill for the next three days. On August 15, 1995, Ms. Kelly called the Bileses to inquire about Hannah. Ms. Kelly testified that the appellant told her that Hannah had "passed out" and that they "couldn't get her to come to." He then stated that "I hit her. I don't know how hard I hit her or where I hit her." (R. 180.) He informed her that paramedics were at the apartment and that Hannah was going to the hospital.

Stanley Pendergrass, a paramedic with the Cullman City Ambulance Service, transported Hannah to Cullman Regional Medical Center. He testified that Hannah was lethargic, and that her abdomen was swollen and her body was covered with bruises.

Dr. Robert Smith, a physician at Cullman Regional Medical Center, treated Hannah in the Center's emergency room. He testified that her body was covered with bruises and that her ears were swollen and bruised. He further testified that the injuries to her ears were likely caused by pinching or pulling the ears. The appellant and his wife explained that Hannah had fallen and hit her head and that she had then vomited for three days. The appellant said that the bruises were a result of his forceful attempts to revive Hannah. Dr. Smith ordered a CAT scan of Hannah's head and abdomen and discovered a perforation in her small bowel. He testified that this hole was probably caused by a blow to her abdomen. Hannah was flown by helicopter to Children's Hospital in Birmingham.

Dr. Keith Georgeson treated Hannah upon her arrival at Children's Hospital. He noted that Hannah was in shock and that her abdomen was severely distended. He testified that Hannah had several bruises on her body. The bruises on her legs appeared to have been caused by a strap or a belt and the bruises on her ears appeared to have been caused by forceful pulling or grabbing.

Dr. Georgeson surgically closed the hole in her bowel and sterilized her abdominal cavity, which had become contaminated. Despite his efforts, Hannah died as a result of the severe infection and dehydration that developed as a result of the hole in her bowel.

Dr. Georgeson estimated that Hannah's bowel had been perforated approximately three days before she was admitted to the hospital. Dr. Georgeson testified that the laceration to her bowel was probably caused by blunt force trauma to her abdomen. He further testified that such a blow would be extremely painful and that fluids leaking from her perforated bowel would cause a constant burning pain. He concluded that given the nature of the injury, it would have been obvious to anyone that Hannah was in extreme pain and that she needed prompt medical attention. Dr. Georgeson further concluded that the type of injury that Hannah sustained would not have been fatal if it had been treated promptly with surgery and antibiotics.

Dr. Georgeson sought information from the appellant and Hannah's mother regarding Hannah's medical history. At first, the appellant denied that Hannah had experienced any trauma. Some time later, the appellant claimed that he had slapped Hannah in an attempt to revive her after she became ill. In another conversation, he stated that he might have hit her in the abdomen while attempting to revive her. The appellant then suggested that he might have hurt her while they were wrestling. Finally, the appellant claimed that he had tripped over Hannah and had fallen on her with his knee.

Max Bartlett, a Cullman City Police Investigator, interviewed the appellant concerning Hannah's injuries. Bartlett testified that the appellant told him that Hannah's abdominal injury was caused when he tripped over her and landed on her with his knee. On another occasion he stated that her injury occurred when they were wrestling. At trial, the appellant retracted all of his former statements concerning the cause of Hannah's abdominal injury.

Sonya Hahn, a former girlfriend of the appellant's, testified that, while they were cohabitating in 1991, the appellant physically and verbally abused her then 13-month-old son. Her son was eventually hospitalized as a result of injuries inflicted by the appellant, and she ended her relationship with the appellant.

The appellant was charged with child abuse, a violation of § 26-15-3, Ala.Code 1975, which provides as follows:

"A responsible person, as defined in Section 26-15-2, who shall torture, willfully abuse, cruelly beat or otherwise willfully maltreat any child under the age of 18 years shall, on conviction, be punished by imprisonment in the penitentiary for not less than one year nor more than 10 years."

"A responsible person" is defined in § 26-15-2, Ala.Code 1975, as "a child's natural parent, stepparent, adoptive parent, legal guardian, custodian or any other person who has the permanent or temporary care or custody or responsibility for the supervision of a child."

The state presented considerable evidence concerning Hannah's injuries. The appellant had admitted to doctors and Hannah's grandmother that he had hit and slapped Hannah, but he had said he did not know how hard or where the blows had landed. In another...