Appellant's first contention of error is that "(t)he evidence was insufficient for the case to go beyond the State's case in chief, to go to the jury, or to sustain the guilty verdict."
"The oft-repeated rule by which we test the sufficiency of evidence on appeal of a criminal matter is that we examine and accept as true the evidence of the prosecution, leaving out of consideration entirely the evidence of the defendant in conflict therewith, and we give to the evidence of the prosecution every favorable inference which may reasonably and fairly be drawn therefrom. Stated another way-it is not whether the evidence establishes guilt beyond a reasonable doubt for us, but rather whether it is sufficient to form the basis for a reasonable inference of guilt beyond a reasonable doubt to be drawn by the jury when the evidence is viewed in the light most favorable to the State. (Citations.)" Harvey v. State, Wyo., 596 P.2d 1386, 1387 (1979). See Cloman v. State, Wyo., 574 P.2d 410 (1978).
Gauged by this standard, the following is part of the evidence which was placed before the jury in the State's case in chief.
Appellant was living with Donna Snyder and together they had parented a child, Alysia, who was born on August 25, 1979. Donna Snyder returned home at 2:30 a. m. on October 31, 1979 and observed Alysia "sleeping like she normally does." Donna Snyder awakened at 6:45 a. m. She testified in part:
"Q. What, if anything, did you do after you awoken?
"A. I got up and got my son up; the baby (Alysia) got up at seven o'clock. I fed her, changed her, got my son off to school by eight and the baby and I both laid back down in my bed from eight until ten, and I woke and she was still sleeping. I took her in the front room with me and she woke up and she stayed awake until her eleven o'clock feeding, and I fed her once again.
"Q. Now, what were your observations of the baby at seven a. m.?
"A. She seemed fine to me.
"Q. And then at eleven o'clock on the 31st?
"A. She seemed fine.
"Q. You said the baby was up from ten until eleven or approximately?
"A. Yes, around there.
"Q. It was eleven o'clock that you fed her?
"A. Yes.
"Q. After you fed the baby, what did you do?
"A. At eleven?
"Q. Uh-huh.
"A. I just watched TV.
"Q. What did you observe the baby do, if anything?
"A. She was fine, she fell back to sleep a while later after she ate until I got a phone call from my son.
"Q. As a result of that phone call, what did you do?
"A. Well, my son needed his costume by one-thirty because he had forgot it for his halloween party, and the baby was sleeping and I was about to call a cab. It was just a few minutes before one and the cab number was busy, and just as I was hanging up, Gill (appellant) pulled up so I told him what I had to do.
"Q. What, if anything, did you do then?
"A. I took the car and I told him that if I wasn't back by three, because I had some grocery shopping to do, to feed the baby at three, she would eat at three.
"Q. So then is it your testimony that when you left-
"A. I left at one o'clock.
"Q. One o'clock?
"A. Yes.
"Q. And then, if you know, was the baby sleeping at that time?
"A. Yes, I believe she was.
"Q. Okay. Then you left at one, and then why don't you please tell the jury what you did.
"A. I left at one o'clock, I took my son his halloween costume and I went to Safeway and did my shopping, and I was back by about quarter to three.
"Q. Okay. What, if anything, happened when you came back at quarter to three?
"A. I had put the groceries away and sat down and asked Phil (sic) if she was still sleeping and he said, yes, and that she hadn't woke yet to eat, and he asked me about the bruise on her right ear.
"Q. What, if anything, did you say?
"A. I did not know where it came from. I was afraid to turn around and ask him the same question because there was one on her left ear two weeks prior to that.
"Q. Now, after he told you-how did he say that, that there was a bruise on the baby?
"A. I don't recall the exact words. He asked me, 'Did you notice the bruise on her right ear,' and if I knew where it came from.
"Q. And after he said that to you, what did you do?
"A. I looked at it and I said, 'No,' and it was worse than the one before.
"Q. I guess I'm not being clear on my questions. What did you observe when you looked?
"A. The bruise on the right ear and in back of it.
"Q. And then after you observed the bruise on the right ear, what, if anything, did you do at that time?
"A. I told him I didn't know where it had come from, and that's about as far as the conversation went about the bruise."
Alysia was taken to the Memorial Hospital in Cheyenne where she was attended to by Dr. Russell Williams. He testified she was comatose and:
"A. She did have a very unusual bruise about the right fleshy part of her ear and a semi-lunar bruise just behind the ear on the right side as well. This bruise was red with some purple discoloration and appeared to me to be fresh.
"Q. Was there anything additional that your examination disclosed?
"A. No-well, yes, her anterior fontanelle, the the (sic) soft spot, was quite tense, indicating that the brain was under increased pressure.
"Q. After examination of the baby, what was your diagnosis at that time?
"A. Well, it was my feeling that the baby was a victim of nonaccidental trauma and that she had sustained a severe brain injury. I had the benefit at the time of knowing of some of the things that we worry about when a baby comes in with generalized convulsions, some of the tests to perform to rule out other causes of seizure, such as meningitis, low sugar in the blood, calcium disorders, and the like, and all these things being normal, it led me to the conclusion along with the bruise that the baby had been injured.
"Q. Now, you mentioned seizures. Did you observe seizures?
"A. No, at the time she wasn't having seizures. She had a tremendous amount of medication in order to control these. She was stopped at the time I saw her.
"Q. And in your opinion, doctor, what would have been the cause of that brain damage that you testified to?
"A. I felt that this was trauma, nonaccidental trauma, primarily because of the severity of the injury, the fact that there was a bruise on the head with a child. This is very unusual with a two-month old and the types of things that can occur to a baby at this age I felt were not-for instance, falling off the changing table or falling out of the bed or falling off the davenport are just not severe enough to cause this kind of an injury."
When Alysia almost ceased breathing, she was placed in a respirator and taken to the Children's Hospital in Denver. There she was under the care of Dr. Paul Moe, who testified in part:
"Q. Did you examine the baby?
"A. Yes, I was requested by the people on her ward to examine her because they were very worried about her convulsions and signs of blood in her eyes.
"Q. Additionally, were there any other physical manifestations aside from blood in the eyes and seizures you observed during the course of treatment of her while she was at the Children's Hospital?
"A. She had a bruised ear and she had some paralysis of the right arm as she got over her convulsions. As has already been stated, she needed help with breathing when she first came in, and that got better over the next couple of days.
"Q. Now, what was your diagnosis for that baby?
"A. Well, initially we were a little mystified because the baby had severe convulsions, even life-threatening convulsions, swelling of the brain, and then with the discovery of the blood in the eyes, it seemed highly probable all the swelling and convulsions were due to head trauma swelling from a bruise on the brain.
"Q. Do you have an opinion as to the cause of those head injuries?
"A. We ... the history that was given was incomplete. We really didn't have any information to suggest what the cause of the truama (sic) was. Often in a two-month old with no history of a fall or something is given, it turns out to be
"Q. And in your opinion, could this type of injury been caused by accidental trauma?
nonaccidental trauma, usually by one of the caretakers.
DR. MOE: The most likely cause, in my experience, is trauma produced by shaking of the baby or accidental dropping of the baby, something like that.
"Q. What percentage, if any, would you give to that, in your experience?
"A. Relatively all, ninety-five or ninety-eight percent of the time. I have seen the same thing with someone being hit by a train or some terrible accident, but otherwise it is always due to trauma in children, in my experience.
"Q. Could this type of injury have been caused by a fall?
"A. Well, it would have had to have been a severe fall. In my experience, if a baby falls off a bed, you know, it has happened to all of us when we care for kids, this usually doesn't result in this severe picture, so a trivial fall, in my opinion, wouldn't have caused this."
From the evidence...
