Drew v. State

• Decision Date: 28 February 1989
• Docket Number: No. F-87-198,F-87-198
• Citation: 771 P.2d 224,1989 OK CR 1
• Parties: Karen June DREW, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 224

771 P.2d 224

Karen June DREW, Appellant, v. STATE of Oklahoma, Appellee.

No. F-87-198.

Court of Criminal Appeals of Oklahoma.

Feb. 28, 1989.

An Appeal from the District Court of Oklahoma County; James Gullett, District Judge.

Karen June Drew, appellant, was convicted of Murder in the First Degree in the District Court of Oklahoma County, Case No. CRF-85-374. In accordance with the jury's recommendation, she was sentenced to a term of life imprisonment. From said judgment and sentence, appellant appeals to this Court. Judgment and sentence is AFFIRMED.

David P. Henry, Hughes & Nelson, Oklahoma City, for appellant.

Robert H. Henry, Atty. Gen., Susan Stewart Dickerson, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

Karen June Drew, appellant, was convicted of Murder in the First Degree in the District Court of Oklahoma County, Case No. CRF-85-374, in violation of 21 O.S.Supp.1982, § 701.7(C). In accordance with the jury's recommendation, she was sentenced to a term of life imprisonment. From said judgment and sentence, appellant appeals to this Court.

During the lunch hour on January 15, 1985, David Drew was phoned at work by the appellant, then his wife. The appellant informed Mr. Drew that their fourteen month-old daughter, Patricia, had fallen from a couch, was unconscious and could not be revived. Mr. Drew then drove to the couple's mobile home and found the appellant holding a cold compress to the child's head. The local fire department rescue squad arrived shortly thereafter and began administering basic life support. The child was then transported by ambulance and a mediflight helicopter to the emergency room of Children's Memorial Hospital in Oklahoma City.

Upon her arrival at the hospital, Patricia was immediately diagnosed as having a severe head injury. An examination of her body also revealed numerous bruises on her head, neck, arm, abdomen, back and buttocks. After a CAT scan and x-rays disclosed a two-inch skull fracture and intra-cranial bleeding, surgical procedures were initiated to remove a blood clot from Patricia's brain. Due to the severity of the injury, parts of her brain had to be amputated. Patricia never regained consciousness and died two days later as a direct result of her head injury.

The appellant has consistently maintained that she never abused Patricia or caused her death. She accounted for one of the bruises on Patricia's arm by stating that it was the result of her grabbing the child as she turned away. However, despite having bathed Patricia on the night before the fatal injury, the appellant denied having noticed any of the other bruises located on her child's body. Notwithstanding, the appellant surmised that those bruises must have been caused by other children and asserted that Patricia bruised easily.

Concerning the fatal injury, the appellant testified that Patricia had been playing on the livingroom sofa on the day in question. While washing dishes in the nearby kitchen, the appellant claimed that she heard a loud "thump" in the livingroom. She stated that she rushed into the room and discovered her daughter lying on the floor, unconscious, between the sofa and a rocking chair.

At trial, the resident pediatrician in charge of the emergency room, an emergency room pediatrician and chairman of the hospital's Child Protection Team, and the Chief Medical Examiner of the State of Oklahoma, each testified that, in their expert opinions, Patricia was an abused child. Those doctors, joined by the supervising neurosurgeon, also concluded that the severe head trauma sustained by the child could not have been the result of a fall from a sofa. Additionally, several tests performed on Patricia's blood disclosed that she did not bruise any easier than a normal person.

In her first assignment of error, the appellant asserts that there was insufficient evidence to support the verdict. Specifically, appellant contends that the State failed to prove that she caused the death of her daughter. We disagree.

The test to be utilized by a reviewing court when determining if the State presented sufficient evidence to support a conviction where both direct and circumstantial evidence has been introduced is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. Spuehler v. State, 709 P.2d 202, 203-4 (Okla.Crim.App.1985); Riley v. State, 760 P.2d 198, 199 (Okla.Crim.App.1988). Because the instant case involved both direct and circumstantial evidence, the Spuehler test is applicable. Furthermore, because the appellant does not challenge the sufficiency of any other element of the crime charged, we must conclude that the victim was a child under the age of eighteen and that her death resulted from a willfully inflicted injury or the use of unreasonable force.

The criminal agency evidence introduced at trial which was most favorable to the prosecution is as follows: Medical testimony revealed that the fatal injury most likely occurred within twelve hours of the child's arrival at the hospital. Only the appellant, her husband and their other two infants were with Patricia during this crucial time period. Testimony disclosed that the appellant's husband left for work early in the morning and returned home to find appellant holding the unconscious child. Additional medical testimony revealed that consciousness would be lost almost immediately following such an injury. Based on this evidence, we find that any rational trier of fact could have found beyond a reasonable doubt that the appellant inflicted the injury which caused the death of her daughter. Therefore, this assignment of error is without merit.

In her second assignment of error, the appellant makes several attacks on the constitutionality of 21 O.S.Supp.1982, § 701.7(C). This section, along with 21 O.S.1981, § 843, are set forth as below:

Section 701.7(C):

A person commits murder in the first degree when the death of a child results from the injuring, torturing, maiming or using of unreasonable force by said person upon the child pursuant to Section 843 of this title.

Section 843:

Any parent or other person who shall willfully or maliciously injure, torture, maim, or use unreasonable force upon a child under the age of eighteen (18), or who shall cause, procure or permit any of said acts to be done, shall be punished by imprisonment in the State Penitentiary not exceeding twenty (20) years, or by imprisonment in a county jail not exceeding one (1) year, or by a fine of not less than Five Hundred Dollars ($500.00) nor more than Five Thousand Dollars ($5,000.00), or both such fine and imprisonment.

The appellant first argues that the terms "injuring" and "reasonable force" are sufficiently ambiguous to raise an issue as to the statute's clarity and definiteness. This Court addressed a substantially identical challenge in Holder v. State, 556 P.2d 1049 (Okla.Crim.App.1976). There, we held that 21 O.S.1971, § 843 was "sufficiently clear and explicit that all persons of ordinary intelligence could understand its provisions. A person of common intelligence would not necessarily guess at its meaning and differ as to its application." Id. at 1052. Because Section 701.7(C) specifically states that its provisions are pursuant to Section 843, and because the terms at issue are identical in both statutes, we deem the Holder decision controlling in the instant case.

Secondly, the appellant asserts that Section 701.7(C) is unconstitutional because it lacks a mens rea requirement. We disagree. As we stated above, the provisions of Section 701.7(C) are pursuant to 21 O.S.1981, § 843. Section 843 clearly provides that only those acts which are committed in a willful or malicious manner fall within the purview of the statute. Because the mens rea element of Section 701.7(C) is supplied by Section 843, we find that this argument lacks merit.

The appellant next contends that Section 701.7(C) is unconstitutional because it prescribes a disproportionately greater sanction than the second degree murder and manslaughter statutes which, she argues, prohibit identical criminal conduct. We note, however, that Section 701.7(C) explicitly addresses only those acts proscribed by 21 O.S.1981, § 843 which result in the death of a child under the age of 18. Neither the second degree murder statute, 21 O.S.1981, § 701.8, nor any of the manslaughter statutes, 21 O.S.1981, §§ 711-714, 716 and 717, specifically proscribe such conduct.

Also incorporated into this assignment is the appellant's assertion that child abuse may not serve as the underlying felony for a homicide conviction. However, as this Court stated in Schultz v. State, 749 P.2d 559, 561 (Okla.Crim.App.1988), "With the enactment of § 701.7(C) the legislature has clearly stated its intention that the use of unreasonable force upon a child, pursuant to 21 O.S.1981, § 843 is to be punished as Murder in the First Degree." Thus, this assertion is without merit.

Finally, the appellant asserts that Section 701.7(C) is unconstitutional because the mens rea required for the homicide is irrebuttably presumed from the mens rea required for the felony child abuse. Where the prosecution attempts to utilize Section 701.7(C) for a murder conviction, it must first establish that all of the elements of child abuse under 21 O.S.1981, § 843 are proved beyond a reasonable doubt. Included among those elements is the requirement that the acts be committed in a willful or malicious manner. Therefore, the adoption of the mens rea requirement of Section 843 does not alter the State's ultimate burden of proving each element of Section 701.7(C) beyond a reasonable doubt. See Hall v. State, 635 P.2d 618, 621 (Okla.Crim.App.1981), cert. denied, 455 U.S. 951, 102 S.Ct. 1455, 71 L.Ed.2d 666 (1982). This assignment of error is without merit.

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