Childers v. State, s. 14338

• Decision Date: 10 May 1984
• Docket Number: 14552,Nos. 14338,s. 14338
• Citation: 100 Nev. 280,680 P.2d 598
• Parties: Donald James CHILDERS, Appellant, v. The STATE of Nevada, Respondent. Sandra Kay STEELE, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 598

680 P.2d 598

100 Nev. 280

Donald James CHILDERS, Appellant, v. The STATE of Nevada, Respondent.

Sandra Kay STEELE, Appellant, v. The STATE of Nevada, Respondent.

Nos. 14338, 14552.

Supreme Court of Nevada.

May 10, 1984.

[100 Nev. 281] John W. Aebi, Carson City, for appellant Donald James childers.

Thomas E. Perkins, Public Defender, and Laura Fitzsimmons, Deputy Public Defender, Carson City, for appellant Sandra Kay Steele.

Brent T. Kolvet, Dist. Atty. and Stephen C. Balkenbush, Chief Deputy Dist. Atty., Minden, D. Brian McKay, Atty. Gen., Carson City, for respondent.

OPINION

PER CURIAM:

Appellant Donald James Childers and appellant Sandra Kay Steele were convicted in separate jury trials of the abuse and neglect of a minor child resulting in substantial physical and mental harm to the child. They seek reversals of their judgments of conviction, claiming that the district judge erred in instructing the jury and in admitting into evidence medical expert testimony. Childers also argues that the evidence is insufficient to prove that the child suffered substantial bodily harm. We disagree and affirm both convictions.

THE FACTS

Steele and her four-year-old daughter occupied a trailer home with Childers. The record shows that commencing in April 1982 Childers repeatedly and severely spanked the child; that he shook her like a "rag doll", dragged her repeatedly by one arm about the trailer home, administered cold showers to the child, and on one occasion had the child drink shampoo to induce vomiting. Childers admitted many of these acts.

Steele was aware of Childers' treatment of her daughter, but did not interfere. Steele testified that she failed to obtain medical aid for the child because Childers threatened that if she did so, the police would take Steele into custody.

In May 1982 the child was hospitalized and found to be suffering from serious malnutrition and a duodenal hematoma. Her body was covered with bruises.

THE JURY INSTRUCTION

Childers suggests that the court erred in instructing the jury on the meaning of "willfully" as used in the child abuse statute. ¹ We do not agree. The district judge instructed the jury as follows:

The word "willfully", when applied to the intent with which an act is done or omitted, as used in my instructions, implies simply a purpose or willingness to commit the act or to make the omission in question. The word does not require in its meaning any intent to violate law, or to injure another, or to acquire any advantage.

The instruction was proper. The child abuse statute is a general intent crime. The word "willfully" must be defined in that context. The California courts have long approved the use of this definition of "willfully," which is taken from the California Penal Code Section 7(1). ² See, e.g., People v. Atkins, 53 Cal.App.3d 348, 125 Cal.Rptr. 855, 861 (1975) (approves use under child abuse statute, California Penal Code Section 273d).

ADMISSIBILITY OF THE EXPERT TESTIMONY

The admissibility of expert testimony, as well as of the qualifications of the expert, lies within the sound discretion of the trial court. Watson v. State, 94 Nev. 261, 264, 578 P.2d 753 (1978). The D.C. Circuit Court of Appeals reversed the exclusion of a psychologist's testimony regarding the defendant's sanity in a criminal case, stating "it is hardly surprising that courts do not exclude all but the very best kind of witness. [Citations omitted.] Thus a general practitioner may testify concerning matters within a medical specialty if his education or experience, or both, involves demonstrable knowledge of the subject." Jenkins v. United States, 307 F.2d 637, 643-644 (D.C.Cir.1962).

The doctor testifying in this case had thirty years experience in pediatrics. He was Chief Resident in Pediatrics in Salt Lake City, Utah. He presently has a private pediatric practice specializing in developmental problems due to psychological, physical and mental learning disabilities. He directs Eagle Valley Children's Home, and formerly directed Sierra Development Center. The district judge did not err in admitting the doctor's testimony.

SUBSTANTIAL BODILY HARM

Appellant Childers alone challenges the sufficiency of the evidence showing that he caused the child substantial bodily harm.

The child suffered a duodenal hematoma which was life-threatening. Two witnesses testified that appellant Childers shook the child like a rag doll while grasping her abdomen. Dr. Good testified that this could have caused the hematoma.

The testimony was undisputed that the child was covered with bruises as the...