Fiorot v. State, F-81-270
| Decision Date | 25 February 1982 |
| Docket Number | No. F-81-270,F-81-270 |
| Citation | 641 P.2d 551 |
| Parties | Michael J. FIOROT, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appellant Michael J. Fiorot, hereinafter referred to as defendant, was charged in Jackson County District Court, Case No. CRF-80-25, with the crime of Murder in the Second Degree. The defendant was tried by a jury, which returned a verdict finding him guilty of the offense and assessing his punishment at fifteen (15) years' imprisonment.
Defendant in his first assignment of error asserts that the court erred in refusing to sustain defendant's demurrer at the close of the State's case in chief and defendant's motion for directed verdict at the conclusion of the evidence. It is alleged that in both instances the evidence was circumstantial and insufficient to sustain a verdict of guilty.
Testimony presented at trial established that between 8:00 a. m. and 8:30 a. m. on December 22, 1980, the defendant picked up his four (4) month old daughter, Casandra, from his next door neighbor, Kathleen Swonger, where the defendant's wife, Tina, had left the child earlier that day. Mrs. Swonger's husband and her brother testified that nothing appeared to be wrong with the child when they left the residence that morning. Mrs. Swonger testified that the child seemed physically fit, although she did not touch the child that day. The defendant testified that when he picked the child up it had vomited on its blanket, and he had to clean the mess up when he got home.
Between 10:00 a. m. and 10:30 a. m. on the morning in question the defendant brought Casandra to Dr. Snowden at Altus Air Force Base. After examining the child Dr. Snowden ascertained that she needed the immediate services of a neurosurgeon and he accompanied her, via a Fort Sill Medi-Vac helicopter to Oklahoma City, where she died a few days later as a result of her injuries.
Dr. Fred B. Jones, a physician and forensic pathologist employed as Associate Chief Medical Examiner for the State, testified that he had examined the body of Casandra Fiorot and had ruled the death homicide. The child had died as a result of head trauma. His examination revealed a contusion over the top of the head. There was a large amount of subdural hemorrhage and the brain was swollen. In addition, the left eighth rib and both collarbones showed fractures. Dr. Jones could not find the injuries sustained consistent with the child's being dropped, nor could the injuries have been inflicted by a small child. In his opinion blunt force, a fist, could have caused the rib fracture and it was possible squeezing around the neck and shoulders could have resulted in the broken collarbones.
Charles Lawrence Carrier, who was the defendant's supervisor at the Fire Department, testified that on December 13, 1980, he had observed the defendant at the Longhorn Tavern. It was unusual to see the defendant out alone and, because the defendant had stated earlier that he was short of money, he asked the defendant what he was doing at the bar. The defendant had replied that he had to get out of the house because the baby was crying and it was driving him crazy.
When confronted on appeal with a demurrer to the evidence and a motion for directed verdict on grounds of insufficient evidence, this Court has held that where there is evidence to present a jury the Court of Criminal Appeals will not interfere. Woodward v. State, 567 P.2d 512 (Okl.Cr.1977). Viewing the facts in a light most favorable to the State, we hold that a prima facie case against the defendant was established, and therefore, all questions of fact were for the jury to resolve. Renfro v. State, 607 P.2d 703 (Okl.Cr.1980). Therefore, we are not disposed to overrule the decision of the trial court regarding the demurrer and motion for directed verdict.
Defendant also argues that the record is devoid of any direct inculpatory evidence and that the only evidence the jury might have considered was purely circumstantial in nature, a majority of which was not completely consistent with guilt and inconsistent with innocence. It is well established that a criminal case may be proved circumstantially and reasonable inferences drawn therefrom have the same probative effect as direct testimony. Collins v. State, 561 P.2d 1373 (Okl.Cr.1977); Logan v. State, 493 P.2d 842 (Okl.Cr.1972); Young v. State, 373 P.2d 273 (Okl.Cr.1962). Additionally, circumstantial evidence need not exclude every hypothesis or negate any possibility other than guilt. Logan v. State, supra. Accordingly, defendant's first assignment of error is without merit.
Defendant in his second assignment of error asserts that the prosecution's closing arguments were not supported by the evidence and were merely appeals to the passion and prejudice of the jury. Defendant cites four specific instances of alleged improper argument, however, we find none of the arguments to be fundamentally prejudicial. Therefore, defendant's total failure to request that the jury be admonished to disregard the arguments resulted in a waiver of the alleged errors, and defendant's second proposition is without merit. Neal v. State...
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