Marshall v. State

• Decision Date: 07 June 1982
• Docket Number: No. 5624,5624
• Citation: 646 P.2d 795
• Parties: Sam MARSHALL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 795

646 P.2d 795

Sam MARSHALL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 5624.

Supreme Court of Wyoming.

June 7, 1982.

Sylvia Lee Hackl, Appellate Counsel, Cheyenne, Gerald M. Gallivan, Director, Wyoming Defender Aid, and Valerie Hafner Phifer, Intern (argued), Laramie, signed the brief on behalf of appellant.

Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., Allen C. Johnson, Sr. Asst. Atty. Gen., and Sharon A. Lyman, Asst. Atty. Gen. (argued), signed the brief of appellee.

Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

RAPER, Justice.

Appellant was convicted of child abuse as that crime is defined in § 6-4-504, W.S.1977. ¹ From the judgment and sentence entered against him he has appealed on two bases. First he argues that there was insufficient evidence presented by the State to support a conviction of child abuse. Second, he challenges the validity of the statute he was convicted of having violated; his contention is that §§ 14-3-101 and -103, W.S.1977 ², impliedly repealed § 6-4-504, W.S.1977.

We will affirm.

On the night of April 13, 1981, appellant, along with his wife, aunt and another individual, traveled from appellant's home in Saratoga, Wyoming to a hospital in Rawlins in order to get medical treatment for appellant's twenty-two month old stepson. Once there, the child was admitted and treated for second degree burns which were located on his left buttocks and leg.

According to appellant and his wife, these burns had occurred on the night of April 10, 1981 while the child was home alone with appellant. Appellant testified that the youngster ate his dinner during this period getting food all over himself in the process; so appellant took him into the bathroom for a bath, running water into the tub and testing it before use. Appellant claimed to have left the child alone in the bathtub for a period of time. Appellant went to the kitchen where he cleaned up the mess the child had made while eating-chili beans and wieners were thrown all over the floor and the highchair. When he heard the child screaming, he returned to the bathroom where he found the hot water faucet on and the child at the back end of the tub. After he turned the water off and pulled the youngster from the bathtub he noticed that the child had been burned. He checked with his aunt, who lived a couple of doors away, for advice. She gave him a tube of burn medicine which he took home and applied.

Appellant's wife testified that when she arrived home she popped several blisters which had formed with a sterilized needle and applied some additional medication. The next morning she asked a druggist what he recommended for burns. He indicated that if the burns had scabbed over, the battle was pretty much over; however, the burns should be kept moist and the child should be given plenty of liquids. Appellant and his wife testified that, since the burns had scabbed over, they did not believe additional medical treatment was necessary.

It was only on Monday, April 13, when the scabbing stuck to the sheets and was pulled off, that they again became concerned. Appellant's aunt viewed the burns and insisted that immediate medical treatment be sought. The aunt even called appellant's mother in Texas. She called back to her son and told him to take the child to the hospital or she might call the sheriff. A friend of the aunt also looked at the burns and agreed that immediate medical attention was needed. After the local doctor refused to see the child, the aunt got her car and drove the child, along with appellant, his wife, and the friend, to the hospital in Rawlins. After their arrival at the hospital, an attending physician called the sheriff's office believing the child may have been abused. A deputy sheriff went to the hospital and conducted an investigation. Later he arrested appellant on charges of child abuse.

Appellant was officially charged with child abuse under § 6-4-504, supra. Appellant's trial commenced on May 28, 1981. At the close of the State's case a motion for acquittal was made; however, the trial judge denied the motion. The defense then presented evidence but never renewed the motion for acquittal. At no time during the course of the proceedings in the district court did appellant challenge the validity of § 6-4-504, W.S.1977. On Saturday, May 30, 1981, a jury returned a verdict of guilty. Appellant was later sentenced to the Wyoming State Penitentiary for a period of not less than two years nor more than five years; however, the trial judge suspended this sentence in favor of three years of supervised probation and a fine of $1,000.

The first assignment of error in this case questions the sufficiency of the evidence to support a guilty verdict. Specifically appellant contends that it was error for the trial judge to deny his motion for acquittal which had been made at the close of the State's case. However, since appellant introduced evidence following the motion for acquittal, the motion must be viewed as waived unless later renewed. Neilson v. State, Wyo., 599 P.2d 1326 (1979). Since there was no renewal of the motion, this court may only review the trial court's failure to acquit to determine whether it was plain error.

The doctrine of plain error has been thoroughly discussed by this court on numerous occasions. This court may reverse where "(p)lain errors or defects affecting substantial rights" are found to have occurred. Rule 49, W.R.Cr.P. However, before noticing the error, this court must find that (1) the record clearly shows the alleged error; (2) the error violated a clear and unequivocal rule of law in an obvious way; and (3) material prejudice resulted. Browder v. State, Wyo., 639 P.2d 889 (1982).

The sufficiency of the evidence, where there is a conflict, is tested in accordance with the criteria set out in Harvey v. State, Wyo., 596 P.2d 1386, 1387 (1979):

"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. Evanson v. State, Wyo., 546 P.2d 412 (1976); Brown v. State, Wyo., 581 P.2d 189 (1978); Nisonger v. State, Wyo., 581 P.2d 1094 (1978)."

One of the considerations which we must also keep in mind is what we cannot see or hear, but of which the jury has the benefit-being present and observing at first hand the demeanor and expressions of the witnesses. As said in Madrid v. Norton, Wyo., 596 P.2d 1108, 1117 (1979):

" * * * We must not forget that when we examine the cold words of the transcript of testimony, we do not have the benefit of how the trial judge (jury) sees and hears the witness-the pitch of the voice, facial changes, the movement in the witness-all of which may tell a separate story, to be given credence. The conclusion of what preponderates is with the trier of fact. Koch v. Brown, Wyo.1965, 401 P.2d 459. Credibility of witnesses is for the trial court (jury). Hench v. Robinson, 1955, 75 Wyo. 1, 291 P.2d 417; Eblen v. Eblen, 1951, 68 Wyo. 353, 234 P.2d 434. Appellate courts cannot try a case de novo. Marken v. Goodall, 10th Cir. 1973, 478 F.2d 1052." (Footnote omitted.)

As pointed out by the prosecutor in his closing argument to the jury, child abuse is a very private act; those present are usually only the victim and the perpetrator and many times, as in the case before us, only one can talk. While a youngster of twenty-two months can communicate hunger, thirst, pleasure, pain, fear and other understandable messages by body language, he cannot testify and give his version of the occurrence, so circumstantial evidence must be relied upon. This type of case is usually presented of necessity by circumstantial evidence. Grabill v. State, Wyo., 621 P.2d 802 (1980); See also, United States v. Harris, 661 F.2d 138 (10th Cir. 1981), a child abuse case arising at F. A. Warren Air Force Base, Wyoming and prosecuted under § 6-5-504, supra. But, circumstantial evidence has standing and is sometimes more reliable than direct evidence. It is measured upon the same basis as direct evidence. In Blakely v. State, Wyo., 542 P.2d 857, 862 (1975), we said:

" * * * Circumstantial evidence has been unfairly maligned and misunderstood by both some of the judiciary and lay people and has not been given the respect to which it is entitled. Circumstantial evidence has 'both standing and stature.' Without it, the guilty would escape. It must not be given inferior status. The careful bonding together of facts passes the test of logic: If this and this and this are true, then that must be true." (Footnotes omitted.) ³ The medical doctor, a member of the American College of Emergency Physicians with a background of examining and treating many burn cases, examined the child upon admission to the hospital. He testified that when he examined the child from head to toe, there were second degree burns over the left buttocks, the left posterior thigh, and the left ankle. The burn around the ankle was almost completely around the ankle except for a small part on the inside of the ankle. There was also a burn on the inside of the right thigh. In addition, there were several bruises on the child. They were about the right upper eyelid, the left forehead, on the bridge of the nose, the anterior chest wall, in the small of the back and also a bruise completely around the right lower leg just...