State v. Evans, 89-435

• Decision Date: 03 July 1991
• Docket Number: No. 89-435,89-435
• Citation: 594 A.2d 154,134 N.H. 378
• Parties: The STATE of New Hampshire v. Leon A. EVANS, Jr.
• Court: New Hampshire Supreme Court

Page 154

594 A.2d 154

134 N.H. 378

The STATE of New Hampshire v. Leon A. EVANS, Jr.

No. 89-435.

Supreme Court of New Hampshire.

July 3, 1991.

John P. Arnold, Atty. Gen. (David S. Peck, Asst. Atty. Gen., on the brief), for State.

W. Kirk Abbott, Jr., Asst. Appellate Defender, Concord, for defendant.

HORTON, Justice.

In this appeal from a conviction by jury for second degree assault against his infant child, see RSA 631:2, I (Supp.1990), the defendant argues that the Superior Court (Pappagianis, J.) erred in denying his motion to dismiss. The motion, made at the close of the evidence, was based on insufficiency of the evidence. The defendant asserted that the evidence was insufficient to prove reckless conduct or to prove the act which was medically identified as causing the serious bodily injury to the child. We affirm.

On October 17, 1987, Michelle LaPorte Evans was born to Rita LaPorte and the defendant. After being discharged from the Elliot Hospital, the baby lived with her mother, the defendant, Rita LaPorte's father and the couple's two-year-old daughter, Cassandra.

Dr. Sam Dugan, the attending pediatrician when Michelle was born, examined her on October 18, 1987, and found her to be in good neurological and physical health. Dr. Dugan conducted a routine follow-up examination on October 20, 1987, and found no problems with Michelle's health.

On October 23, 1987, Rita LaPorte stayed at home most of the day with Michelle. She left the house around 7:00 p.m. to pick up her father, and returned at approximately 10:00 p.m. The defendant stayed at home to watch Michelle and Cassandra. When Rita returned, the defendant informed her that Michelle had fallen from a couch. The defendant was angry with Rita for leaving him alone with the children, and claimed that it was her fault that Michelle had fallen from the couch. Rita immediately looked in on Michelle, who was asleep, and noticed that she had dried blood on both her nose and mouth. She also noticed that Michelle's lips were swollen and that there was a burn mark on Michelle's chest. Michelle's grandfather remembered that her nose appeared as though it had been pushed in.

The defendant explained to Rita that Michelle started to bleed because of her fall off the living room couch. He told her that the burn happened when he accidently brushed up against a lantern he was holding for light, while holding Michelle in his arms. The house's electricity had been shut off for non-payment of the electric bill. The defendant also told Rita that he had taken Michelle to the Elliot Hospital, but later admitted that this was a lie. Over the course of the next two days, Michelle's condition worsened. She became feverish and lethargic, and began to vomit after her feedings. Then, on October 26 and 27, her condition began to improve. Rita had diluted the baby formula, and Michelle was able to keep it down.

On October 28, Michelle's condition again deteriorated. On the morning of the 28th, Rita's father left for work. Rita and the defendant stayed at home with Michelle and Cassandra throughout most of the day. Rita's father was at work. In the afternoon, Rita went for a job interview at a local market. During the hour she was gone, the defendant was alone with Michelle and Cassandra. The defendant told Rita he was angry because she refused to take Cassandra with her to the job interview. When Rita returned from the interview, she checked in on Michelle and noticed that her condition was worse; the lethargy and fever had returned, and her mouth had begun to bleed again. Rita questioned the defendant about Michelle's condition. The defendant said that he had tripped over his work boots while holding Michelle, and, that when he fell she had landed on his shoulder. Rita tried to feed the baby that afternoon, but Michelle's mouth was too swollen for her to eat.

Rita left again around 4:30 p.m. to get her father from work. She returned with her father, and went to work herself around 5:45 p.m. The defendant called Rita shortly after she had arrived at work and told her that Michelle had a temperature of 104 degrees, her eyes were rolling in her head, and her lips were swollen. Rita came home immediately, and she and the defendant took Michelle to the Hitchcock Clinic in Bedford.

Dr. Margaret Wiegand was the pediatrician on call that night. Dr. Wiegand testified that she noticed some blood crusted on Michelle's lips, a ruptured frenulum, which is the tissue connecting the gum to the upper lip, a two-inch long burn mark on Michelle's chest, and bruises on her right cheek and right calf. Of greatest concern to the doctor were Michelle's full or bulging fontanelle (the soft spot in a baby's cranium), her temperature of 102 degrees, and that she was limp and pale. The doctor, concerned because the bulging of the fontanelle indicated increased pressure inside the head, conducted a spinal tap and found that Michelle's spinal fluid was grossly bloodied. The doctor concluded from her tests and observations that Michelle's injuries resulted from either meningitis, or an intracranial hemorrhage. Because Dr. Wiegand did not have the facilities in her office to differentiate between the two, Michelle was transported to the pediatric ward of the Elliot Hospital.

The tests performed at the Elliot Hospital eventually ruled out meningitis as a possibility. At the hospital that night Michelle began having seizures, and during the following morning, she experienced periods of apnea, the cessation of breathing. All of Michelle's symptoms were consistent with neurological injury or disease. The serious nature of Michelle's problems caused Dr. Wiegand to have her transferred to Mary Hitchcock Hospital in Hanover.

Tests performed at Mary Hitchcock Hospital revealed that Michelle had permanently lost fifty percent of her brain tissue. The doctors determined that the injury to Michelle's brain was diffuse, and therefore not likely the result of a direct blow. Based upon the test results and their examinations, two of the doctors testified that Michelle's injuries were the result of a violent shaking. All of the doctors who examined Michelle testified that her injuries could not have been sustained from an accidental fall. One doctor testified that Michelle's injuries were very severe compared to most shaking injuries.

On October 29, after a referral from the Elliot Hospital, an investigator with the division of children and youth services (DCYS) began an investigation of possible child abuse. The investigator met with Rita and the defendant and told them that the preliminary diagnosis of Michelle's injuries was shaken baby syndrome. In response, Rita and the defendant began to offer possible explanations for Michelle's injuries. The defendant stated that Michelle's head injuries could have been caused when he tripped over a pair of sneakers and dropped Michelle. He also stated that the baby had fallen off a couch, which he estimated was one to two feet off the floor. Rita stated that the bruises possibly had come from burping the baby or holding her face when she was vomiting. As for the torn frenulum, the defendant stated that he fell another time and the baby landed on his chest. The investigator asked to interview the defendant and Rita separately. Rita agreed with this request, but the defendant refused.

On November 10, both the defendant and Rita again met with the investigator. At this meeting, the defendant suggested that the injuries might have been caused by "flipping" the baby. "Flipping" was described as holding the baby's head in one hand and legs in another, and then turning or rotating the child head over heels and back again. The defendant said that a doctor at Mary Hitchcock Hospital was going to sign a statement that this was how the injury to the brain had occurred. At this point, the defendant refused to provide the investigator with information concerning his future whereabouts.

After having spoken with the police in conjunction with the DCYS investigation, Rita told the defendant on November 14 that they "were through until [she] found out exactly what happened to Michelle." As a result of this conversation, the defendant contacted the police and agreed to be interviewed. In the interview, the defendant told Officers Glennon and Gilman that on October 23, Michelle had been burned when, while holding Michelle, he had leaned over to pick up a lantern. Michelle began to scream and cry, angering the defendant. Twice the officers suggested to the defendant that Michelle's injuries were believed to be the result of an extreme shaking. At this point, the defendant put his head down on the table and began to cry. He confessed that he had shaken Michelle on October 23 because he was angry at her for crying and could not get her to stop. He said he took Michelle under both her arms and shook her for about 30 seconds. As a result of this admission, the officers arrested the defendant and brought him to the police station.

The officers had the defendant prepare a handwritten statement. In it, the defendant modified his story, stating that on the 23rd when he picked up Michelle, he was shaking from nervousness and that he shook her without knowing it. He also said that Cassandra had pulled Michelle off the couch. He claimed Michelle had been on the couch face up and that, when Cassandra pulled her blanket, Michelle fell off the couch and struck the back of her head on the floor.

While he was at the station the defendant asked to speak to another police officer. The defendant then told Officer Fowler that he had lied during the interview with Officers Glennon and Gilman, and that he wanted to alter his earlier confession. The defendant indicated to Officer Fowler that everything he had told Officers Glennon and Gilman was true except for his hurting or shaking Michelle. During his talk with Officer Fowler, the defendant also stated that he had told Rita the night...