State v. Davis, 2015AP2030–CR.
| Decision Date | 30 August 2016 |
| Docket Number | No. 2015AP2030–CR.,2015AP2030–CR. |
| Citation | 885 N.W.2d 807,371 Wis.2d 737 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. Anthony Darnell DAVIS, Defendant–Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Dustin C. Haskell, assistant state public defender of Milwaukee.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Brad D. Schimel, attorney general and Jeffrey J. Kassel, assistant attorney general.
Before CURLEY, P.J., KESSLER and BRASH, JJ.
KESSLER
, J.
¶ 1 On May 26, 2013, Anthony Darnell Davis was charged with two counts of physical abuse of a child by recklessly causing great bodily harm.1 According to the criminal complaint, on May 14, 2013, L.D.'s mother, Lakiesha Bowie, took L.D. to Children's Hospital of Wisconsin because L.D. had blood in the whites of her eyes and redness around her eyes. It was the sixth time Bowie had taken L.D. to the hospital in the past month. Following an examination by Dr. Angela Rabbitt, a pediatric child abuse specialist, it was determined that L.D. sustained the following injuries:
• A possible buckle fracture to the left proximal first metatarsal
• Subconjunctival hemorrhages
• Bruising to the eyes bilaterally
• Healing from a torn upper frenulum2
According to the Amended Information, Dr. Rabbitt told Milwaukee police that the fractures to L.D.'s legs, ribs, and eyes were consistent with child abuse. Davis was subsequently charged with two counts of physical abuse of a child causing great bodily harm pursuant to WIS. STAT. § 948.03
(2013–14).3 The “repeater” penalty enhancer was added to both charges. Count one pertained to L.D.'s leg fractures and count two pertained to L.D.'s rib fractures.
¶ 2 Prior to trial, the parties stipulated that Bowie, as a witness for the State, would admit to eight prior convictions. The parties also stipulated that should Davis testify in his own defense, he would admit to five prior convictions.
¶ 3 Multiple witnesses testified at trial. Milwaukee Police Officer Amy Stolowski, an officer with the Sensitive Crimes Division, testified that she was dispatched to Children's Hospital of Wisconsin at approximately 2:45 a.m. on the morning of May 15, 2013, to investigate a potential child abuse matter. Stolowski said that L.D. was brought into the hospital with swelling and bruising to her face and that medical staff subsequently discovered multiple fractures. Stolowski said that she interviewed Davis, who told her that he and Bowie were L.D.'s sole caregivers. Stolowski said Davis had no explanation for L.D.'s injuries.
¶ 4 Milwaukee Police Detective Marilyn Francis testified that she interviewed Davis after he was taken into custody on suspicion of child abuse. Francis said that Davis initially denied having any knowledge as to the source of L.D.'s injuries and said that L.D. always remained with her mother. Portions of Francis's interview with Davis were played for the jury. In the interview, Davis told Francis that L.D. fell off of a bed and off of a rocker. Davis also told Francis that he was walking with L.D. the day before her hospital visit and heard a “popping” sound. Francis stated that during the interview, she asked Davis to demonstrate how Davis changed L.D.'s diaper on a baby doll. Francis described Davis's movements as “overly exaggerated,” as he spread the dolls legs “extremely wide” and “would fold the baby's legs over ... to the baby's chest.” Davis told Francis that Bowie complained about him being too rough with L.D.
¶ 5 Bowie testified that in the month preceding L.D.'s injuries, Bowie took L.D. to the hospital five times for various concerns, including fussiness and blood in L.D.'s eyes. She stated that she and Davis were L.D.'s sole caretakers. Bowie stated that when she was informed of L.D.'s injuries, she was confused as to the cause and told doctors that she had rolled over L.D. while co-sleeping. Bowie said that Davis was with her at the hospital and did not mention that he could have caused L.D.'s injuries. Bowie also identified Davis's voice in a number of phone calls from the jail in which Davis admitted to using drugs and sitting on L.D. Bowie stated she was unaware that Davis used drugs.
¶ 6 Dr. Rabbitt, the child abuse pediatrician who examined L.D. at Children's Hospital, told the jury that rolling onto a child on a bed would not have caused L.D.'s injuries. Dr. Rabbitt testified that when she first saw L.D., she noticed bruising around both of L.D.'s eyes and her cheek and that L.D. had a laceration to the tissue connecting the inside of L.D.'s lip to her gums. Dr. Rabbitt testified that all of these injuries are rare in “nonmobile” infants and generally prompt doctors to conduct further testing. Dr. Rabbitt also noticed conjunctival hemorrhages
. Dr. Rabbitt stated that the hemorrhages, in conjunction with the bruising, can be indicative of blunt force trauma in an infant. Dr. Rabbitt said that x-rays confirmed that L.D. had multiple broken ribs and fractures in her legs. The leg fractures included: metaphyseal fractures in both knees, a fracture in the distal femur, metaphyseal fractures in the left ankle, the tibia, and the fibula, and a fracture in the foot. Dr. Rabbitt testified that fractures in nonmobile infants are also rare and are often associated with abuse. She stated that the injuries L.D. suffered are consistent with “the mechanism of pulling and twisting of the leg or in some cases if a child is shaken and the arms and legs are moving violently, those forces can cause this type of fracture to the joints.”
¶ 7 Davis also testified, telling the jury that he never squeezed, shook, or pulled L.D. He admitted, however, to sitting on L.D. either one or two days prior to L.D.'s May 14, 2013 hospital visit. Davis testified that he used cocaine outside of the motel room he lived in with Bowie and L.D. and that he accidentally sat on L.D. when he returned to the room. Davis stated that he got up right away and did not sit on L.D. for more than “a couple seconds.” Davis stated that Bowie and his twelve-year old son were sleeping at the time, but that Bowie woke up when she heard L.D. cry. Davis gave L.D. to Bowie without telling Bowie that he sat on L.D. Davis testified that he weighed 315 pounds at the time. Davis also admitted to telling police that Bowie is a wonderful mother.
¶ 8 Ultimately, the jury convicted Davis of both child abuse charges.
¶ 9 Davis filed a postconviction motion arguing that his counsel was ineffective for failing to impeach Bowie with her prior convictions. Davis argued that because Bowie was an equal caregiver for L.D., admitted to co-sleeping with L.D., and to rolling onto L.D. while sleeping, Bowie's prior convictions were relevant to her credibility.
¶ 10 The postconvinction court denied the motion, finding “that there is no reasonable probability that there would have been a different outcome had trial counsel impeached Ms. Bowie with her prior convictions.” The court determined that “[t]here was no suggestion in the evidence that Ms. Bowie had done anything to L.D. that could have resulted in the injuries [L.D.] sustained.”
¶ 11 This appeal follows.
¶ 12 On appeal, Davis urges us to reverse his conviction because “broken bones are insufficient as a matter of law to constitute great bodily harm.” (Some capitalization omitted.) He also argues that his trial counsel was ineffective for failing to impeach Bowie with her prior convictions. We address both issues.
¶ 13 Davis contends that “[b]roken bones are explicitly enumerated as one of the injuries constituting substantial bodily harm; therefore, they cannot simultaneously constitute the more severe great bodily harm.” Specifically, Davis contends that because the statutory definition of “substantial bodily harm” as set forth in WIS. STAT. § 939.22(38)
specifically references “any fracture of a bone,” Davis was held to a higher standard of harm when he was convicted of causing great bodily harm to L.D. for the fractures she suffered. We reject Davis's arguments for multiple reasons.
¶ 14 The interpretation of a statute is a question of law that we review de novo. See State v. Volk, 2002 WI App 274, ¶ 34, 258 Wis.2d 584, 654 N.W.2d 24
. Statutory interpretation begins with the language of the statute. State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110. “Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning.” Id. We interpret statutory language in the context in which it is used, in relation to the language of surrounding or closely-related statutes, and reasonably, to avoid absurd or unreasonable results. Id., ¶ 46. We may consider the statute's purpose, to the extent it is readily apparent from the statutory text or from the statute's context or structure. See id., ¶¶ 49. “ ‘If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning.’ ” Id., ¶ 46 (citation omitted). If, however, we determine the statute is ambiguous, we consult extrinsic sources, such as legislative history, to determine the legislature's intent. See id., ¶ 50.
¶ 15 The general criminal definitions include definitions for three types of bodily harm. The types are, in order of increasing severity, bodily harm, substantial bodily harm, and great bodily harm. See WIS. STAT. § 939.22(4)
, (14), and (38). The definition of “great bodily harm” is: “bodily injury which creates a substantial risk of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or...
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...abuse of a child by recklessly causing great bodily harm. See Exhibit 8 to Answer ¶ 1 n.1, ECF No. 13-8; see also State v. Davis, 885 N.W.2d 807 (Wis. Ct. App. 2016). A second child-abuse charge was added a few days later after it was discovered that LD also had six broken ribs. See Ex. 1. ......