State v. Blubaugh

• Decision Date: 28 September 1995
• Docket Number: No. 940060-CA,940060-CA
• Citation: 904 P.2d 688
• Parties: STATE of Utah, Plaintiff and Appellee, v. Gerald Gene BLUBAUGH, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 688

904 P.2d 688

STATE of Utah, Plaintiff and Appellee, v. Gerald Gene BLUBAUGH, Defendant and Appellant.

No. 940060-CA.

Court of Appeals of Utah.

Sept. 28, 1995.

James G. Clark (argued), and Randall K. Spencer, Provo, for Appellant.

Kris C. Leonard (argued), Assistant Attorney General, Jan Graham, State Attorney General, Salt Lake City, for Appellee.

Before Judges DAVIS, BILLINGS, and GREENWOOD.

OPINION

DAVIS, Associate Presiding Judge:

Gerald Gene Blubaugh appeals his conviction of murder, a first degree felony, for the death of fourteen month old Faith Barney. See Utah Code Ann. § 76-5-203(1)(c) (1995). We affirm.

FACTS

Christy Barney gave birth to Faith on May 20, 1991. Christy was sixteen years old at the time. When Faith was two months old, she was placed in foster care due to Christy's pattern of neglect and alcohol abuse. After giving up alcohol (allegedly) and returning to school, Christy regained custody of Faith when Faith was five months old.

In February 1992, Christy met defendant and the two moved in together shortly thereafter. During the time period that defendant lived with Christy, Faith experienced a number of injuries. Among these were two broken arms and trauma to her skull. Defendant admitted striking Faith "up to eight times," but alleged that he merely tapped her lightly on the head with the tips of his fingers.

For several weeks in the spring of 1992, Christy and defendant lived in Rona Harding's basement. At trial, Harding testified that during that time she observed several instances of inappropriate child care on defendant's part. Of particular relevance to this case was defendant's technique for getting Faith to fall asleep. Harding testified that when Faith was "fussy," defendant's habit was to place her in the "fetal position"--head in the crook of one elbow, buttocks in the hand of the same arm. He would then put his other arm behind her knees, fold her knees to her chest, compress her body tightly, and hold her eyes shut with his fingertips. If Faith screamed or attempted to arch her body out of this position, Ms. Harding said that defendant would "squeeze her tighter until her face turned red and then she couldn't breathe very well."

When Harding objected to this practice, pointing out that defendant was cutting off Faith's circulation, defendant replied that "babies that was fussing liked the comfort of the fetal position." Defendant would then hold Faith tighter. Harding stated that defendant would hold Faith in this position "[f]or hours."

Faith suffered severe injuries sometime between 10:00 p.m. on August 4th and 8:00 a.m. on August 5th, and she died from those injuries shortly thereafter. Defendant and Christy were the only individuals present with Faith during this time period.

On the day of August 4th, Faith was apparently feeling ill. She had a fever and had not eaten much. Defendant had some training as a medic in the army, so when he arrived home from work, Christy asked him to care for Faith. The testimony at trial was that due to defendant's medical training he was generally the primary caregiver when Faith was ill. After Faith had a cool bath, defendant gave her a suppository and diapered her. The three remained together until about midnight when Christy put Faith in her crib and defendant and Christy went to bed.

The next morning, defendant woke Christy before he left for work at about 5:00 a.m. and told her to check on Faith because Faith was making a gurgling, percolating sound. Faith had asthma and commonly experienced difficulty breathing. Christy testified at trial that Faith was limp and did not wake up when she picked her up out of the crib, so Christy held Faith and rubbed her back until her breathing improved. Christy then placed Faith in the crib on her back and returned to bed.

Christy testified that she woke up again at 8:00 a.m., much earlier than she usually would, with an inexplicable and compelling feeling that something was wrong with Faith. She stated that she awoke upside down in the bed and had sensations similar to those she experienced when coming out of memory blackout episodes. Christy had a background of extensive physical and sexual abuse, and experts testified that she had developed a dissociative identity disorder as a response. This condition was characterized, in part, by frequent "blackouts." When Christy was twelve or thirteen, she experienced blackouts involving violence towards When Christy went in to check on Faith, she found her lying on her stomach and noticed the crib sheet around her mouth was wet. Faith's eyes were rolled back in her head and her skin was gray and cold. Christy picked Faith up and ran to the neighbor's house to call the ambulance.

family members. Although subsequent blackouts apparently did not involve the same degree of violence, the psychologists at trial testified that Christy was certainly capable of extreme violence during a blackout.

The paramedics transported both Faith and Christy to Mountain View Hospital in Payson, Utah. Dr. Brian E. Shiozowa, the attending physician, determined that Faith was critically ill and stabilized her condition so that she could be lifeflighted to Primary Children's Hospital in Salt Lake City, Utah. He noted that she had a cast on her right arm and had a black eye that was one to three days old. During the next forty-eight hours at Primary Children's, Faith's brain began to swell due to fluid build up, causing irreversible brain damage. Faith was removed from life support systems and died August 8, 1992.

The autopsy revealed that Faith had suffered contemporaneous cranial and vertebral injuries. Specifically, her skull was fractured, her scalp was bruised in several places, and the instraspinous ligaments in her upper back were torn apart. The cause of Faith's death was anoxia (deprivation of oxygen to the brain) caused either by the skull injury or the back injury. The skull injury was described by Dr. Helen Britten, a specialist in child nonaccidental trauma at the University of Utah and Primary Children's Hospital, as the result of an unusually strong blunt force injury. That is, an injury caused by a hand or other blunt object, equivalent in force to a fall from a second story window onto cement. With respect to the back injury, the medical examiner testified that "[t]he only mechanism that I know of that can cause that type of injury is if the person is bent forward at the chest and bent forward so much it would be a very abnormal anatomic position such that those ligaments would be torn loose." At that time, Faith was twenty-nine and one-half inches long, and weighed twenty-three pounds.

Both defendant and Christy were charged with first degree murder for Faith's death. Christy ultimately pled guilty to felony child abuse. After a six day jury trial, defendant was convicted of "depraved indifference" murder, in violation of Utah Code Ann. § 76-5-203(1)(c) (1995). ¹ Defendant was sentenced to an indeterminate term of five years to life in the Utah State Prison.

ISSUES

Defendant raises numerous points of alleged error on appeal. We discuss the following: (1) whether the evidence was sufficient to convict defendant; (2) whether the trial court erred in excluding some of the evidence of Christy's prior violent acts when in a memory blackout; (3) whether it was error to admit evidence of child abuse syndrome; (4) whether the trial court erred in refusing to suppress certain evidence; (5) whether the depraved indifference jury instruction given was erroneous; (6) whether the statute under which defendant was convicted is unconstitutional; (7) whether error occurred when the court mentioned defendant's potential punishment to the jury; (8) whether the trial court erred by denying defendant's motion for a bill of particulars; and (9) whether the prosecutor committed prejudicial error in closing argument. ²

ANALYSIS

1. Insufficiency of the Evidence

Defendant was convicted of depraved indifference murder pursuant to Utah Code Ann. § 76-5-203(1)(c) (1995). The elements of this offense are: (1) engaging in conduct creating a grave risk of death to another that resulted in the death of that individual (the "actus reus"); (2) knowing that this conduct or the circumstances surrounding this conduct created a grave risk of death to this individual (the "mens rea"); and (3) acting "under circumstances evidencing a depraved indifference to human life--a qualitative judgment to be made by the jury in determining the extent of the defendant's conduct. It is not a description of the mens rea involved in the commission of the crime, but an evaluation of the actus reus." State v. Bolsinger, 699 P.2d 1214, 1219 (Utah 1985); see also State v. Powell, 872 P.2d 1027, 1029-30 (Utah 1994); State v. Standiford, 769 P.2d 254, 262 (Utah 1988).

Defendant challenges the sufficiency of the evidence to convict him of depraved indifference murder. ³ In reviewing a challenge to the jury verdict for insufficiency of the evidence, we "must view the evidence in the light most favorable to the verdict and will interfere only when the evidence is so lacking and insubstantial that a reasonable person could not possibly have reached a verdict beyond a reasonable doubt." State v. Tanner, 675 P.2d 539, 550 (Utah 1983), superseded on other grounds, State v. Walker, 743 P.2d 191, 193 (Utah 1987); accord State v. Morgan, 865 P.2d 1377, 1379 (Utah App.1993).

It is well accepted that "circumstantial evidence alone may be competent to establish the guilt of the accused." Tanner, 675 P.2d at 550. In fact,

[i]f circumstantial evidence and reasonable inferences were to be discounted, it is doubtful that convictions would ever be found in cases of this nature where the crime takes place in the home and where the youth of the victim, combined with the relationships of the family members, makes it difficult, if not impossible, to obtain direct evidence.

Id. at 551. In this case, defenda...