State v. Bell

Decision Date13 November 1974
Docket NumberNo. 56463,56463
PartiesSTATE of Iowa, Appellee, v. Gerald BELL and Donna Bell, Appellants.
CourtIowa Supreme Court

Lee J. Farnsworth, Denison, for appellants.

Richard C. Turner, Atty. Gen., Nancy J. Shimanek, Asst. Atty. Gen., and Thomas R. Eller, County Atty., for appellee.

Heard by MOORE, C.J., and MASON, UHLENHOPP, REYNOLDSON and McCORMICK, JJ.

REYNOLDSON, Justice.

These separately indicted defendants were jointly tried for the crime of assault with intent to inflict great bodily injury in violation of § 694.6, The Code. Following convictions on May 4, 1973, each defendant was sentenced to a term not to exceed one year in a reformatory.

Defendants Gerald and Donna Bell are husband and wife. The victim of the alleged assault was their three-year-old daughter, Kari, who has cerebral palsy.

Kari was born two months prematurely on February 5, 1970. Her legs are affected by her illness. She has some difficulty walking and controlling her movements.

February 16, 1973, a social caseworker and the county nurse went to the Bell home. Kari was frail and much thinner than when the caseworker had seen her at age one and one-half years. She had bruises on both cheeks, the forehead, and a thumb. A still-bleeding cut on her chin was covered with a band-aid. There was a large, spongy black bruise on the back of Kari's head extending almost ear to ear. Two upper front teeth were missing. Her abdomen was rigid and her eyes sunken.

Over the Bells' protest, Kari was taken to the local hospital. A nurse there observed dark bruises over the child's entire genital area. The next day she was taken to University of Iowa Hospital, where she had received prior treatment for her cerebral palsy. She was there examined by Dr. Barter, who noted the bruises above described and found additional bruises on her back and extremities. Kari weighed 22 pounds. X-rays disclosed a rib fracture and a compression fracture of the first lumbar vertebra. These fractures, though healed, were not apparent on an examination one year earlier.

Principal witnesses for the State were Mr. and Mrs. Kruse, defendants' long-time friends. Mrs. Kruse testified that on February 15, 1973 she observed Donna repeatedly strike Kari's hand, which was on a hardwood floor, with a segment of molding board. She also saw Donna pick Kari up by the abdomen and diapers and 'slam' her down several times on the floor. Both Kruses testified they had seen Gerald strike Kari with his fist on two occasions in the mouth prior to February 15, 1973. On one occasion she fell backwards and hit her head on a mopboard. Both these witnesses said defendants frequently referred to Kari as 'the little bitch.'

Defendants asserted Kari's injuries were caused by falls resulting from her disability, and from therapy administered by Donna pursuant to instructions from University Hospital. Significantly, their detailed explanations of how Kari's injuries were accidentally sustained were in some instances inconsistent one with the other and also irreconcilable with statements by Donna to the social worker and county nurse on February 16.

Both Dr. Barter and another medical expert expressed unequivocal opinions that damage to Kari's genital area could not have been caused by the palsy therapy.

Leona Bell, Gerald's mother, testified for defendants. In response to cross-examination questions to which no objections were lodged she conceded she had complained to the county health nurse and social workers several times concerning Kari's treatment. The foster mother in whose home the child was placed on March 7, 1973 testified without trial objection the child handled herself very well, fell but seldom, and had sustained no injuries while in her care.

Alleged trial court errors asserted by defendants and worthy of consideration are consolidated and treated in the following divisions.

I. Motions with respect to testimony.

Each defendant filed 'Motion to Strike Surplusage' seeking to 'strike from the indictment', for various reasons, certain specified 'testimony' of designated witnesses. This 'testimony' was related to Kari's physical condition before and after the alleged assaults, prior instances of alleged abuse, and prior injuries. In overruling the motions, trial court clearly indicated to defense counsel he was not expressing an opinion as to the ultimate admissibility of such evidence, if and when offered in course of trial.

At trial the vast bulk of this testimony came in without objection. After both parties rested, defense counsel renewed the above motions and specifically moved to 'withdraw the evidence' of four named State's witnesses. These were overruled.

With respect to the first motion, it should be observed we have never strictly limited the testimony of witnesses to the contents of the minutes. State v. Lanphear, 220 N.W.2d 618, 621 (Iowa 1974). Nor are the minutes either testimony or evidence. At best, defendants' pre-trial motions to strike testimony could be construed as motions in limine. A ruling which denies a motion in limine cannot be the basis for appeal. See State v. Garren, 220 N.W.2d 898, 899 (Iowa 1974).

Applicable to the second motion are our cases holding a motion to strike or withdraw evidence is not timely where it came in without objection and the grounds of the motion should have been apparent before it was made. State v. Bruno, 204 N.W.2d 879, 887 (Iowa 1973); State v. Boose, 202 N.W.2d 368, 369 (Iowa 1972).

We find no trial court error with respect to the above motions.

II. Motions for directed verdict.

Defendants assign as error denial of their motion for directed verdict at close of State's evidence, and at the close of all evidence, grounded on State's failure to produce credible evidence of illegal assault or the requisite intent on the part of either defendant.

On an appeal challenging sufficiency of the evidence the court views the evidence in the light most favorable to the State and accepts all reasonable inferences tending to support the verdict. The cause should be submitted to the jury if there is any substantial evidence reasonably supporting the charge. Only evidence which would support the verdict need be considered. State v. Graham, 221 N.W.2d 258, 259--260 (Iowa 1974).

In this type of case our principles of substantive law are well established. The gist of the crime of assault with intent to commit great bodily injury is the intent, which is seldom capable of direct proof and ordinarily is disclosed by all the circumstances attending the assault, together with all relevant facts and circumstances disclosed by the evidence. State v. Petsche, 219 N.W.2d 716, 717 (Iowa 1974); State v. Decklever, 172 N.W.2d 109, 110 (Iowa 1969). This intent may be, and of necessity must be, in most cases, established circumstantially. State v. Schumann, 187 Iowa 1212, 1215, 175 N.W. 75, 76 (1919).

The crime may be committed without any physical injury to the victim, State v. Crandall, 227 Iowa 311, 316, 288 N.W. 85, 88 (1939), although the extent of injury may be taken into consideration in determining defendants' intent, State v. Petsche, supra at 717; State v. Grimm, 206 Iowa 1178, 1180, 221 N.W. 804, 806 (1928). Nor is a dangerous weapon in the usual context of the term required. State v. Tornquist, 254 Iowa 1135, 1147, 120 N.W.2d 483, 491 (1963) ('Little discernment is required to conclude that the fist, or indeed the hand, of a strong man may readily kill a small four year old child'); State v. Grimm, supra, 206 Iowa at 1180, 221 N.W. at 806 ('Assault to do great bodily injury is not circumscribed or limited Per se by the fact that the accused at the time of the assault used simply his fists').

Parents have a right to inflict corporal punishment on their child, but that right is restricted by moderation and reasonableness. State v. Fischer, 245 Iowa 170, 176--178, 60 N.W.2d 105, 108--109 (1953); 6 Am.Jur.2d, Assault and Battery § 47, pp. 44--45; see generally Annot., 89 A.L.R.2d 396 (1963). Abusive punishment which does not meet this test annuls the parental privilege and subjects the parent to applicable criminal statutes. See State v. Tornquist, supra; State v. Fisher, supra; State v. Bitman, 13 Iowa 485 (1862).

Acts of defendant Donna Bell on February 15, 1973, viewed in the light of all the circumstances, including the frailty and disabilities of Kari, certainly generated a jury question as to her intent to inflict great bodily injury.

There is no proof defendant Gerald Bell assaulted Kari on February 15, 1973, the date indicated in this indictment. Of course, in this case there was no necessity for any date to be specified. Section 773.9, The Code. The date or dates fixed in the indictment for the commission of a crime are not material, and a conviction can be returned upon any date within the limitation...

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