State v. Dumlao

• Citation: 491 A.2d 404,3 Conn.App. 607
• Decision Date: 30 April 1985
• Docket Number: 2954,Nos. 2884,s. 2884
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Paulino DUMLAO. STATE of Connecticut v. Aurora DUMLAO.

Page 404

491 A.2d 404

3 Conn.App. 607

STATE of Connecticut v. Paulino DUMLAO.

STATE of Connecticut v. Aurora DUMLAO.

Nos. 2884, 2954.

Appellate Court of Connecticut.

Argued Jan. 18, 1985.

Decided April 30, 1985.

Gilbert Shasha, New London, for appellant (defendant Paulino dumlao).

Richard Singer, Public Defender, with whom, on brief, was Joette Katz, Public Defender, for appellant (defendant Aurora Dumlao).

Irving L. Aronson, Asst. State's Atty., with whom, on brief, was C. Robert Satti, State's Atty., for appellee (state).

Before HULL, BORDEN and SPALLONE, JJ.

BORDEN, Judge.

The defendants, Paulino and Aurora Dumlao, were charged with the crimes of assault in the first degree in violation of General Statutes § 53a-59(a)(3) ¹ and injury or risk of injury to a child in violation of General Statutes § 53-21, ² and were tried together. The jury found each of them not guilty of the charge of assault but convicted them each of injury or risk of injury to a child. The defendants appeal separately from their convictions, claiming in large part that the court erred in admitting certain evidence and that the evidence was insufficient for conviction. We find no error.

The jury could reasonably have found the following facts: On March 7, 1983, the defendants' two year old daughter was hospitalized at Yale-New Haven Hospital after being transferred from the Naval Hospital in Groton where she was referred by a local pediatrician. The child, at the time the defendants took her to the pediatrician and she was hospitalized, was in pain, generally unresponsive to her environment, covered with abrasions and bruises, including an open lesion the size of a nickel under the left eye, severely dehydrated, and had internal abdominal injuries which were later diagnosed as a fractured spleen, pancreatitis and liver dysfunction. The child's overall symptoms were properly diagnosed as battered child syndrome. Because her injuries were life-threatening, she was placed in intensive care. She had to be fed intravenously for two weeks. The medical history given by the defendant Paulino to the doctors was inconsistent with the child's injuries. The injuries occurred within approximately seven days prior to the child's arrival at the hospital.

The trial court granted the defendants' motion in limine in part, barring any reference in the evidence to the terms "battered" or "abused child," but permitting the use of the term "battered child syndrome." The court denied the defendants' motions for judgment of acquittal, made at the close of the state's case and when the defendant Paulino had rested, ³ on the basis that the state had made out prima facie cases which should be submitted to the jury.

I

APPEAL OF THE DEFENDANT PAULINO DUMLAO

A

We first address the claims of the defendant Paulino Dumlao, beginning with his argument that the court improperly admitted expert testimony on the issue of the battered child syndrome. The defendant argues that such testimony was inflammatory, implying misconduct by the defendants, and was an opinion on the ultimate issue of the case, effectively depriving the jury of their function to determine guilt or innocence. We disagree.

Expert testimony is permitted, in the court's discretion, " 'if the witness has a special skill or knowledge, beyond the ken of the average juror, that, as properly applied, would be helpful to the determination of an ultimate issue.' " State v. Esposito, 192 Conn. 166, 175, 471 A.2d 949 (1984). Battered child syndrome has become a well established medical diagnosis. Commonwealth v. Labbe, 6 Mass.App. 73, 77, 373 N.E.2d 227 (1978); State v. Tanner, 675 P.2d 539, 542-43 (Utah 1983); see State v. Tucker, 181 Conn. 406, 411, 435 A.2d 986 (1980). Expert medical testimony that a child suffered from battered child syndrome has consistently been held admissible in other jurisdictions. See, e.g., United States v. Bowers, 660 F.2d 527 (5th Cir.1981); Bell v. State, 435 So.2d 772 (Ala.Crim.App.1983); People v. Jackson, 18 Cal.App.3d 504, 95 Cal.Rptr. 919 (1971); Commonwealth v. Labbe, supra; State v. Goblirsch, 309 Minn. 401, 246 N.W.2d 12 (1976); State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978); State v. Tanner, supra, at 543; annot., 98 A.L.R.3d 306.

"[T]he 'battered child syndrome' simply indicates that a child found with [certain types of injuries] has not suffered those injuries by accidental means. This conclusion is based upon an extensive study of the subject by medical science." People v. Jackson, supra, 18 Cal.App.3d at 507, 95 Cal.Rptr. 919; State v. Wilkerson, supra; State v. Tanner, supra. A diagnosis of battered child syndrome is often indicated when a child's injuries do not jibe with the history given by the parent. See State v. Tanner, supra, at 542; McCoid, "The Battered Child and Other Assaults Upon the Family: Part One," 50 Minn.L.Rev. 1, 18-19 (1965). A properly qualified expert medical witness, therefore, may appropriately explain the syndrome to the jury and express his opinion that the victim suffers from it. Cf. People v. Reid, 123 Misc.2d 1084, 475 N.Y.S.2d 741 (1984). We agree with the Utah Supreme Court that "trial courts [must] weigh carefully the probative value against the potential for undue prejudice that may be created by the use of the term 'battered child syndrome.' The term should not be applied broadly or as a generalization. The expert should be able to testify in detail regarding the nature of the child's injuries and whether the explanation given for the injuries is reasonable. Any deficiencies in the testimony however, go to its weight rather than to its admissibility. The weight and credibility to be given an expert's testimony are matters to be decided by the factfinder. Defense counsel may of course challenge the testimony on cross-examination, but such challenge goes to the weight to be given the testimony, not to its admissibility. See State v. Clayton, Utah, 646 P.2d 723, 726 (1982)." State v. Tanner, supra, at 543-44.

The expert witness should not be permitted to testify whether "the battered child syndrome from which this victim suffered was in fact caused by any particular person or class of persons engaging in any particular activity or class of activities"; State v. Wilkerson, supra, 295 N.C. at 570, 247 S.E.2d 905; the purpose of this kind of testimony is "not accusatory" and has no bearing on the defendant's culpability. State v. Tanner, supra, at 542. On the other hand, evidence of battered child syndrome, coupled with other proof, such as a continuing opportunity to inflict the injuries, may permit an inference not only that the injuries were not accidental but also that they were inflicted by one who regularly cares for the child. People v. Jackson, supra; State v. Tanner, supra, at 542 n. 2; see also United States v. Bowers, supra; People v. Henson, 33 N.Y.2d 63, 74, 304 N.E.2d 358, 363, 349 N.Y.S.2d 657, 665 (1973).

William Hellenbrand, a physician at Yale-New Haven Hospital, testified in detail about the child's injuries. He stated that battered child syndrome is an accepted medical term that is diagnosed "when a child suffers an injury or injuries ... because of physical trauma done to the child by another individual." He testified that his examination of the child, indicating inflammation of the pancreas, a fractured spleen, damage to the liver, hematoma or collection of blood within the abdomen, and multiple bruises, fit within the classic description of battered child syndrome. ⁴ He further testified that the explanation given by the parents' medical history did not adequately explain the severity of the injuries.

Hellenbrand's testimony was within his field of expertise and linked the child's injuries to the diagnosis of battered child syndrome. It was not a broad discussion of battered children or child abuse, and no accusations of who might have caused the injuries were made by him or any of the other doctors who testified. The court carefully excluded the use of inflammatory terms such as "child abuse" or "abused child," and properly permitted the presentation of battered child syndrome solely as a medical diagnosis. Such testimony, like other medical testimony, is of obvious aid to the jury in its determination of the ultimate issue of guilt or innocence of the defendant. State v. Esposito, supra. If used appropriately, as it was in this case, it is not inflammatory and does not invade the province of the jury to determine guilt or innocence.

B

The defendant's next argument involves the sufficiency of the evidence to convict him. Included in this argument is the claim that his conviction was improperly based on circumstantial evidence. This claim is without merit. "[Triers of fact] necessarily rely upon circumstantial evidence and are entitled to draw reasonable and logical inferences from all the facts. 'There is no distinction between direct and circumstantial evidence as far as probative force is concerned.' State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, --- U.S. ----, 104 S.Ct. 1455, 79 L.Ed.2d 772 (1984); State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981)." Monroe v. Crandall, 3 Conn.App. 214, 220, 486 A.2d 657 (1985). Circumstantial evidence may be used, therefore, to establish the elements of the crimes charged. State v. Bember, 183 Conn. 394, 397, 439 A.2d 387 (1981). The jury may make reasonable, logical inferences from the evidence. Id.

We therefore turn to the challenge to the sufficiency of the evidence. When a jury verdict is challenged on the ground that the evidence is insufficient to sustain the verdict, this court reviews whether "[t]he jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established the defendant's guilt beyond a reasonable doubt." State v. Giorgio, 2 Conn.App. 204, 211, 477 A.2d 134 (1984). In ruling on such a motion,...