P.S. v. State, 7 Div. 340

Decision Date23 February 1990
Docket Number7 Div. 340
Citation565 So.2d 1209
PartiesP.S. v. STATE.
CourtAlabama Court of Criminal Appeals

William B. Hardegree, Anniston, for appellant.

Don Siegelman, Atty. Gen., and Margaret S. Childers, Asst. Atty. Gen., for appellee.

TAYLOR, Presiding Judge.

The appellant, P.S., was convicted of the willful abuse, cruel beating or otherwise willful maltreatment of a child under the age of 18 by failing to protect the child from physical assault by a third party, in violation of § 26-16-3, Code of Alabama 1975. She was adjudicated a youthful offender and was sentenced to imprisonment in the custody of the State of Alabama for a term of three years.

The evidence tended to show that on the morning of January 26, 1989, the appellant awoke to find her live-in boyfriend, Roland Ray, bathing the appellant's two-year-old daughter, the victim. After the child was bathed and dressed, the appellant fixed her breakfast, which consisted of eggs and Kool-Aid. During breakfast, the child was very nervous. She regurgitated her undigested food. After this happened, the appellant stripped the child down, changed her diaper, and put fresh clothes on her.

Later that morning, while the child was napping, the appellant decided to vacuum the apartment. Ray insisted on taking the child upstairs even though the appellant assured him that the noise from the vacuum would not awaken her. Ray stayed upstairs with the child until he left the apartment just before noon.

The child woke up at approximately 12:45, which was also about the time that Ray returned. The appellant fixed the child some popcorn for lunch. After coloring a while, the appellant and the child took a nap.

At approximately 3:30 or 4:00 p.m., the appellant and her child awoke. The appellant began cleaning the kitchen. Ray stayed in the den with the child. Ray became very irritated with the child for wanting too much of her mother's attention. He took the child upstairs while the appellant stayed downstairs.

At about 5:15 or 5:30 p.m., the appellant decided to take a bath. Ray suggested that she listen to her tape player while she bathed. The appellant had been in the bathtub for an hour or an hour and a half when she heard Ray yelling. She turned off the music, got out of the tub, put on her robe, and ran downstairs. She found Ray violently shaking the child, as if trying to revive her. The child was naked. Her diaper was lying on the floor and was full of soft, black stool.

Because the child's eyes were rolled back and she appeared to be unconscious, the appellant and Ray wrapped her in a blanket and took her to the emergency room at Northeast Alabama Regional Medical Center. Upon arrival at the hospital, the child was pale, completely unresponsive to stimulation, and exhibited a condition call "posturing," which is an involuntary stiffening of the muscles and a rigidity of the head and neck. This condition is indicative of head trauma.

The nurse assigned to the trauma room where the child was taken noticed immediately "fingertip" bruises on the right side of the child's neck and extending up to her jaw. The same type bruises were observed on her left chest and rib area. A large hand print was on the child's right buttock, and there were numerous bruises on her legs.

The bruises on the child's body were in different stages of healing. The bruises on her left chest and rib area were two or three days old. The ones on her legs were of different stages. The "fingertip" bruises on the child's neck and jaw had been made sometime that day. The hand print on her buttock was very red and had been made within the hour.

The child was transported by helicopter to Children's Hospital in Birmingham about two hours after her arrival at Regional Medical Center. By this time, the child was comatose and had ceased to breathe on her own. Once at Children's Hospital, Dr. Patrenos placed a tube in the child's throat to allow breathing through mechanical means. She also placed the child on a ventilator to reduce the swelling of her brain.

Dr. Patrenos then physically examined the child. She observed the same bruising which had been seen at Regional Medical Center and also found a red, swollen place above the child's right ear. Her vaginal opening was reddened and very generous. The child's hymen, although not torn, looked thick as opposed to the thin, translucent appearance of the normal hymen of a girl of her age. The child's rectum was very red and had a small laceration in it.

In Dr. Patrenos's opinion, the child had been abused. The bruises were in unusual places and were not consistent with having been caused by the normal falls experienced by a two-year-old. The tear in the child's rectum was consistent with an object having been placed in it. The thickening of her hymen was indicative of chronic irritation of the tissue.

The child remained hospitalized for two months as a result of her injuries. She was diagnosed as having a subdural hematoma.

The appellant raises four issues on appeal.

I

The appellant first questions the sufficiency of the evidence to sustain her conviction. She relies upon Phelps v. State, 439 So.2d 727 (Ala.Cr.App.1983), for the proposition that she could not be found guilty of this offense unless she was aware that Ray's behavior was endangering her child, because her duty to protect her child would arise only when she was so alerted. The appellant contends that she had no knowledge that Ray was abusing her child. After a very thorough reading of the record, we disagree.

On January 5, 1989, the appellant left her child with Ray while she went on a job interview. When she returned, the child was bloody from a cut below her lip. The appellant told her ex-husband that she had witnessed the child fall off her bicycle. She told her mother, however, that Ray had told her that the child had taken a fall. Also, the appellant later told Dr. Patrenos that the cut was not bad enough to need medical attention; she told a social worker, on the other hand, that the cut had required sutures. These contradictory statements could be interpreted as an effort to conceal what really happened to her child.

On January 25, 1989, Pamela Ghee was visiting in the home of the appellant and Ray. The appellant and Ms. Ghee went to the master bedroom to talk. Ray was in the adjacent bathroom with the child. Ms. Ghee heard the child whining and later heard her gagging, as if something was in her throat. Ms. Ghee asked the appellant if the child was okay and was told that she was fine.

A few minutes later, Ray brought the naked child out of the bathroom. He had only a towel wrapped around his waist. The child reached for Ms. Ghee, and Ms. Ghee noticed that the child was clinging to her "like for dear life." The child seemed very scared.

Ms. Ghee noticed bruises on the child's neck and throat and up under her chin, as well as on her chest. When Ms. Ghee asked the child what had happened, the child only held on to her and did not reply. Ms. Ghee then asked the appellant where the bruises had come from. Without even looking at the child, the appellant answered that she had gotten them at the child's father's house.

By the appellant's own admission, the child was very leery of Ray, even though the three had been living together as a family unit for two months. Also, the child had been complaining that her "tee-tee" hurt. As for the torn rectum, the appellant claimed that it was the result of the voluminous bowel movement the child supposedly had before becoming unconscious. Dr. Patrenos admitted that a very hard, dry, constipated stool could cause rectal tearing. The appellant, however, claimed the stool in question was "mushy" and, further, that the child had had diarrhea for a few days preceding her hospitalization.

Finally, there was the matter of the conflicting stories the appellant told various people about what had happened to her child on January 26, 1989. She told Dr. Patrenos that the child had suddenly become ill while she was changing her diaper and that the bruises were the result of Ray's shaking the child in an effort to revive her and holding her jaw to keep her from swallowing her tongue. The appellant then told a social worker that the bruises and the coma happened when the child fell out of her bed. It was not until later that the appellant admitted leaving her child alone with Ray.

We are of the opinion that there was sufficient evidence from which the jury could lawfully infer that the appellant knew that her child was being abused by Ray, and she was also trying to conceal this fact from others. When asked by the district attorney whether she still liked Ray, the appellant replied, "Yeah, maybe I do."

Evidence to prove knowledge or intent is usually circumstantial. It is entitled to the same weight as direct evidence. Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150, 166 (1954). The mere fact that evidence is of a circumstantial nature does not make it deficient. Linzy v. State, 455 So.2d 260, 262 (Ala.Cr.App.1984). Further, such evidence should be reviewed by this court in the light most favorable to the State, Bass v. State, 55 Ala.App. 88, 313 So.2d 208 (1975), and our judgment should not be substituted for that of the jury. Cumbo v. State, 368 So.2d 871, 875 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). Thus, under the principles which are set out above, we find that the factfinder could have been convinced beyond a reasonable doubt of the appellant's guilt from the evidence presented.

II

Second, the appellant contends that the trial judge applied an incorrect standard in his finding of fact wherein he found the appellant guilty because the appellant could not explain how her child was injured. The appellant points to the following portions of the transcript to support this contention:

"The Court...

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