State v. Fedorowicz

Decision Date19 July 2002
Docket NumberNo. 990807.,990807.
Citation52 P.3d 1194,2002 UT 67
PartiesSTATE of Utah, Plaintiff and Appellee, v. Andrew G. FEDOROWICZ, Defendant and Appellant.
CourtUtah Supreme Court

Mark L. Shurtleff, Att'y Gen., Karen A. Klucznik, Asst. Att'y Gen., Salt Lake City, for plaintiff.

D. Gilbert Athay, Michael R. Sikora, Salt Lake City, for defendant.

RUSSON, Justice:

¶ 1 Defendant Andrew Fedorowicz ("Fedorowicz") appeals his convictions of one count of felony murder, in violation of Utah Code Ann. § 76-5-203(1)(d) (1999), one count of child abuse, in violation of Utah Code Ann. § 76-5-109 (1999), and one count of sexual abuse of a child, in violation of Utah Code Ann. § 76-5-404.1 (1999). We affirm.

BACKGROUND

¶ 2 This case is a criminal matter arising from the abuse and resulting death of three-year-old Rebecca Bluff ("Rebecca"), who died on October 21, 1998. "We view the facts in the light most favorable to the jury verdict and recite them accordingly." State v. Loose, 2000 UT 11, ¶ 2, 994 P.2d 1237.

¶ 3 In October 1998, Ferosa Bluff ("Bluff") traveled from Canada to stay in Utah with Fedorowicz and Fedorowicz's wife, Susanna. Bluff was accompanied by her daughters, Rebecca and two-year-old Sarah. Bluff and her daughters stayed with Fedorowicz and Susanna for approximately two weeks before October 21, 1998.

I. OCTOBER 21, 1998

¶ 4 At approximately 3:00 p.m. on October 21, 1998, Life Flight and Salt Lake County paramedics and EMTs were dispatched to an apartment complex on the east side of the Salt Lake Valley in response to a call that a child had fallen and was injured. When the paramedics arrived, Fedorowicz guided them to an upstairs bathroom in his apartment. After following Fedorowicz up the stairs, Captain Scott Shaw ("Shaw"), one of the EMTs, discovered Bluff giving CPR to Rebecca's lifeless body that lay naked on the bathroom floor.

¶ 5 Shaw testified that he noticed extensive bruising on Rebecca's body, extending from the middle of her back to below her buttocks. Shaw also noticed bruising on her legs and arms. As the paramedics began to attend to her injuries, Fedorowicz told Shaw that Rebecca had fallen down a staircase the prior afternoon. He told Shaw that he checked her out immediately after she fell and found no noticeable injury. Fedorowicz further mentioned that she ate breakfast the morning she died. However, Fedorowicz explained to Shaw that he noticed bruising on Rebecca's face that morning, but that he was unconcerned because she was acting normal. Shaw further testified Fedorowicz opined that the facial bruise was caused by either the fall or Rebecca's two-year-old sister hitting her with a doll.

¶ 6 When the emergency personnel arrived, they moved Rebecca into a room adjacent to the upstairs bathroom, where they attempted to resuscitate her. Initially, they attempted CPR and then they administered drugs to stimulate her heart. However, Rebecca never responded. Her skin was cold. Her core temperature measured between 32 and 33 degrees Celsius, indicative of severe hypothermia and that she had been injured for some time. Her pupils were fixed, dilated, and glazed. She was pale and blue, and her heart had no electrical activity.

¶ 7 Soon thereafter, Life Flight transported Rebecca to Primary Children's Medical Center. All attempts to resuscitate her failed, and she was pronounced dead soon after her arrival.

II. THE INVESTIGATION

¶ 8 Sometime after the paramedics arrived on October 21, 1998, Fedorowicz was taken to a sheriff's car. While Fedorowicz was sitting in the patrol car with Salt Lake County deputy sheriff Jason Ashment, he stated that his "life [was] f-cked," he was the man of the house, he had been "the one who had to make decisions and take parental control" of Bluff's children, he should have called 911 sooner, and he had to spank Rebecca repeatedly over the two weeks preceding her death for disciplinary reasons. Further, Fedorowicz told Officer Ashment that while performing CPR, he noticed blood coming from "[w]here she pees."

¶ 9 Later that afternoon, Detective Steven Jentzch ("Jentzch"), investigating Rebecca's death, arrived at Fedorowicz's apartment. While there, Bluff informed Jentzch that she had been with both of her girls "24/7" since she arrived in Utah. She also told Jentzch that the girls were never alone with Fedorowicz or Susanna. Additionally, Fedorowicz told Jentzch that he spanked Rebecca the previous week to punish her for threatening to kill Sarah.

¶ 10 Afterward, Fedorowicz related the following to Jentzch: Fedorowicz did not become concerned about Rebecca until just before 3:00 p.m. on October 21. About that time, he noticed Rebecca was pale and was having trouble walking. When Rebecca finally fainted, he and Bluff took Rebecca into the bathroom, removed her clothes, and submerged her in a tub of cool water in an attempt to revive her. He noticed blood in the water. At one point, Rebecca responded to the cool water and regained consciousness: She actually spoke and drank some milk or orange juice. However, when Fedorowicz and Bluff removed Rebecca from the tub, she fainted again. At that point, Fedorowicz yelled for someone to call 911, and he and Bluff performed CPR on Rebecca.

¶ 11 In furtherance of the investigation and relying on a search warrant, investigators seized a whip-like cat-o'-nine-tails from Fedorowicz's office next to the upstairs bathroom. Additionally, the investigators seized two leather belts or straps adorned with brass rivets. The rivets of at least one of these straps resembled a figure eight. Further, the investigators seized a D-ring with leather straps on both sides of the ring that could be used to bind an individual's hands and feet. Finally, the investigators seized a videotape that depicts Fedorowicz, Bluff, and Susanna engaging in consensual sexual activities.

III. REBECCA'S INJURIES

¶ 12 At trial, several individuals testified concerning the extent of Rebecca's injuries and that those injuries resulted in her death. Specifically, Shaw and other paramedics that attended to Rebecca's injuries at the scene testified. Dr. Howard A. Kadish, the pediatric doctor who met Life Flight at the hospital, and Dr. Timothy J. Kutz, who examined Rebecca on October 21, 1998, also testified. Finally, Dr. Maureen Frikke, the state assistant medical examiner who conducted the autopsy on Rebecca's body, testified. According to their testimonies in the aggregate, Rebecca suffered the following injuries:

¶ 13 Rebecca suffered extensive bruising from her scalp to the bottoms of her feet. Her scalp was bruised both internally and externally. She hemorrhaged into the space between the skull and the brain, and her brain was bruised and bleeding.

¶ 14 Rebecca sustained massive and widespread bruising on her back and buttocks. Red dots, where the surface of Rebecca's skin had been scraped away, were also evident on her buttocks. The tissue to the left of her vagina was red and swollen. Her pelvis was also bruised.

¶ 15 Dr. Frikke opined at trial that the shapes, sizes, and patterns of the bruises on Rebecca's body were consistent with having been whipped with the whips and straps seized from Fedorowicz's apartment. Specifically, she testified that many of the bruises were in the shapes of figure eights, triangles, and teardrops. She noted other bruises were distinctly linear and parallel to one another. Comparing the shape of the rivets and other ornamentation on the straps seized from Fedorowicz's apartment to the shapes of Rebecca's bruises, Dr. Frikke testified that the shapes of the bruises were consistent with having been struck by the straps. In addition, other bruises were consistent with having been grabbed or pinched by someone's fingers and thumb. She also testified that the injuries on Rebecca's buttocks were consistent with the kind of injuries that would be caused by the cat-o'-nine-tails seized from the apartment. The bottoms of Rebecca's feet were covered with bruises consistent with having been beaten with a stick or rod. Further, Rebecca had matching abrasions around her ankles consistent with having been bound.

¶ 16 Dr. Kadish concluded that all of the bruises resulted from nonaccidental trauma rather than from a fall and that they could not have been inflicted by Rebecca's two-year-old sister. According to Dr. Frikke, Rebecca bled to death into the tissues of her buttocks, back, arms, and head. She concluded that death occurred because of blood loss occasioned by blunt force injuries inflicted on the surface of the body, which caused hemorrhaging into the skin, fat, and muscle. Further, Dr. Frikke testified that "these injuries would have been very, very painful" and that a "normal child would cry, or manifest pain, through irritability or crying."

¶ 17 Finally, according to the evidence at trial, Rebecca had no history of health problems before October 21, 1998, that would have resulted in her death. Specifically, Rebecca had no history of a blood disorder or disease that would have caused unusual bleeding.

IV. TESTIMONY REGARDING VIDEOTAPE SCENES

¶ 18 At trial, Jentzch described the contents of two scenes from a videotape that was seized from Fedorowicz's apartment during the investigation. In the first scene, Susanna, Fedorowicz's wife, lay naked and face down on a waterbed with both her wrists and ankles bound with straps. Fedorowicz and Bluff, also naked, struck Susanna on her buttocks with whips or a cat-o'-nine-tails. Redness was evident where Susanna was struck.

¶ 19 In the second scene, Susanna was again naked and bound at the wrists and ankles, but this time she was supine on the waterbed. Bluff, also naked, struck Susanna on her genitalia with a wide, flexible leather strap while Fedorowicz, who was off camera, directed both women.

V. PROCEDURAL HISTORY

¶ 20 On October 29, 1998, the State charged both Fedorowicz and Bluff with one count each of murder, child abuse, and sexual abuse of a child, all arising out...

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