King v. State

• Court: Nevada Supreme Court
• Writing for the Court: PER CURIAM; YOUNG
• Citation: King v. State, 105 Nev. 373, 784 P.2d 942 (Nev. 1989)
• Decision Date: 28 June 1989
• Docket Number: No. 18561,18561
• Parties: Georganna KING, now known as Georganna Lagen, and Paula Martineau, Appellants, v. The STATE of Nevada, Respondent.

Page 942

784 P.2d 942

105 Nev. 373

Georganna KING, now known as Georganna Lagen, and Paula Martineau, Appellants, v. The STATE of Nevada, Respondent.

No. 18561.

Supreme Court of Nevada.

June 28, 1989.

Rehearing Denied Dec. 28, 1989.

[105 Nev. 374] Greenman, Goldberg & Raby, Las Vegas, for appellant Lagen.

Thomas D. Beatty, Las Vegas, for appellant Martineau.

Brian McKay, Atty. Gen., and John Cary, Deputy Atty. Gen., Carson City, for respondent.

OPINION

PER CURIAM:

A grand jury returned an indictment charging appellants Georganna King, now known as Georganna Lagen, and Paula Martineau with murder, aiding and abetting murder, and child abuse and neglect. These charges arose out of the death of King's twenty-seven month old daughter, Michelle. On July 19, 1984, Michelle suffered multiple head injuries while under appellants' care and custody. She died on July 23, 1984.

At trial, the prosecution's case against appellants rested primarily upon circumstantial evidence. A jury found both appellants guilty of involuntary manslaughter and felony child abuse. The trial court sentenced each of them to concurrent terms of twenty years for felony child abuse and six years for involuntary manslaughter. On appeal, King and Martineau claim numerous sources of error.

Appellants contend that the jury failed to follow the district court's instructions requiring that guilt be established beyond a reasonable doubt. They argue that the evidence showed extensive disagreement among the medical experts as to what caused Michelle's coma and death. The experts' opinions ranged from that of appellants' expert, Dr. Petty, who testified that Michelle suffered a simple, unwitnessed fall with a blow to her head, to that of prosecution witness, Dr. Carlile, who opined that Michelle's injuries were due to a shaking and a deliberate blow. Thus appellants submit that the diverse opinions created a reasonable doubt as to whether they committed a crime.

Whenever the parties present conflicting testimony, the jury must determine the weight and credibility to give to that testimony. Allen v. State, 99 Nev. 485, 487, 665 P.2d 238, 240 (1983). In Allen, we held that jurors can accept or reject expert testimony as they see fit. Id. at 488, 665 P.2d at 240. Therefore, accepting Dr. Carlile's opinions and the testimony of other experts with similar opinions, the jury had substantial evidence with which to find that Michelle's death was caused by the criminal act of another.

Appellants also claim that the prosecution introduced no evidence which would allow the jury to determine which appellant did the act that caused Michelle's death. They argue that if the jury could not determine which appellant performed the fatal act, both were entitled to acquittal.

The State responds that it was not necessary to determine which appellant committed the particular act which caused Michelle's death, even assuming that it was a single act. Michelle was in the custody of both appellants at the time of her injury. Moreover, assuming that only one of the appellants actually struck Michelle, the State maintains that the only possible inference from the evidence is that the other aided and abetted in causing the injury. Finally, the State contends that evidence in the record indicated that both failed to seek prompt medical care.

We agree with appellants that the evidence created a reasonable doubt whether both appellants were guilty of involuntary manslaughter. NRS 175.211(1) ¹ However, our review of the record reveals sufficient evidence for a jury, acting reasonably, to find appellants guilty, beyond a reasonable doubt, of felony child abuse. See Wilkins v. State, 96 Nev. 367, 609 P.2d 309 (1980) (holding that the circumstantial evidence was sufficient to convince a jury, acting reasonably, that defendant was guilty, beyond a reasonable doubt, of second degree murder).

Nevada law defines involuntary manslaughter as "the killing of a human being, without any intent to do so, in the commission of an unlawful act, or a lawful act which probably might produce such a consequence in an unlawful manner." NRS 200.070. In order to find appellants guilty of involuntary manslaughter, beyond a reasonable doubt, the evidence must establish that each appellant committed acts resulting in Michelle's death, see Com. v. Colvin, 340 Pa.Super. 278, 489 A.2d 1378 (1985) (statute prohibiting involuntary manslaughter requires that death be a result of defendant's act); cf. Earlywine v. Sheriff, 94 Nev. 100, 575 P.2d 599 (1978) (holding that an information charging defendant with involuntary manslaughter must specify the acts of criminal negligence upon which the State relies), or the evidence must demonstrate that one appellant knowingly and intentionally aided and abetted the other appellant in the act which resulted in death. State v. Swingler, 632 S.W.2d 267 (Mo.Ct.App.1982); cf. Barren v. State, 99 Nev. 661, 669 P.2d 725 (1983) (holding that an indictment alleging that defendant aided and abetted commission of a crime must provide information as to the acts performed by defendant).

Appellants claim that they have no idea how Michelle's injury occurred. During police questioning, both maintained their innocence. At trial, the parties introduced no eyewitness testimony as to what happened to Michelle. King testified that she did not know what caused Michelle's injury. Martineau did not testify. Therefore, no evidence exists that both appellants committed the fatal act. Likewise, no evidence exists that one of the appellants aided and abetted the other in shaking Michelle or fracturing her skull. The fact that both of the appellants were in the home at the time of Michelle's injury does not suffice to prove one aided and abetted the other. Con...