State v. Hassett

• Decision Date: 02 September 1993
• Docket Number: No. 19355,19355
• Citation: State v. Hassett, 859 P.2d 955, 124 Idaho 357 (Idaho App. 1993)
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Steven HASSETT, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 955

859 P.2d 955

124 Idaho 357

STATE of Idaho, Plaintiff-Respondent, v.Steven HASSETT, Defendant-Appellant.

No. 19355.

Court of Appeals of Idaho.

Sept. 2, 1993.

William J. Fitzgerald, Lewiston, argued, for appellant.

Larry EchoHawk, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen., Boise, for respondent.Michael A. Henderson argued.

WALTERS, Chief Judge.

Steven L. Hassett, Jr., was tried before a jury and found guilty of felony injury to a child based on allegations that he had injured his month-old son.SeeI.C. § 18-1501(1).He was also found to be a persistent violator under I.C. § 19-2514, and received a unified sentence of twenty years with a ten-year minimum period of confinement.During trial, the court admitted into evidence under I.R.E. 404(b) the testimony from two men who had investigated Hassett years before for injuring his then four-month-old daughter.Hassett appeals, arguing that the court erred when it admitted the testimony, and that his sentence is excessive.We affirm.

Facts and Procedural History

The facts are as follows.Hassett's son, J.H., was born on November 7, 1989, to Hassett and his girlfriend Vickie Richardson.The child's pediatrician was Dr. John Rusche, who performed several routine examinations of J.H. before the incidents at issue in this case.His last general, external examination of the child was on November 21, 1989, and he found nothing abnormal.

On November 30, however, J.H. was rushed to the hospital by paramedics because he had reportedly stopped breathing after Hassett had fed him.According to Hassett, earlier that night he and Richardson had argued, and he had left their small rented house for a while.When he returned, he offered to feed the baby while Richardson rested in another room.Hassett testified that after feeding he placed the baby on his shoulder to burp it.For several minutes the child was very quiet and did not burp.Hassett then attempted to lay J.H. down so Hassett could go to the bathroom.According to Hassett, it was then that he noticed the child had turned blue and was not breathing.He called Richardson.She rushed into the room, looked at the baby, then ran next door to call an ambulance.In the meantime, Hassett reportedly put the child's chest to his and squeezed.When that did not start the child breathing, Hassett turned J.H. around and tried the same maneuver again.This too was unsuccessful, so Hassett reportedly "thumped" J.H.'s chest and performed mouth-to-mouth resuscitation, which started the child breathing again.There was no evidence presented to show how hard Hassett squeezed or thumped J.H.'s chest.Hassett testified that although he had been employed as a janitor at a fire station and had seen CPR demonstrated, he had not been trained in the procedure.

The paramedics arrived within minutes and took J.H. to the hospital, where he was admitted around midnight and examined by the attending physicians.The next morning, December 1, Dr. Rusche examined the child and talked to the parents.The x-ray performed the night before to examine the child's organs--not his bones--indicated that J.H. "showed a moderate gastro esophageal reflux," in other words, a moderate flow of stomach contents into the esophagus.Dr. Rusche testified that reflux can manifest itself as spitting up, significant vomiting, wheezing, or as apnea.¹He also stated that although reflux is a common problem in infants, it is very unusual for reflux to cause apnea.

In an attempt to prevent further apneic episodes, however, a reflux board was prescribed so that J.H. would be held on an angled platform, head-up and in a prone position.Hassett and Richardson were instructed on how to use the board, which is placed on a flat surface such as a bed or a floor and which uses a blanket to hold the baby in place.J.H. was released into the care of his parents on December 2.

On December 5he was re-admitted to the hospital.Hassett and Richardson had brought J.H. to Dr. Rusche, the attending physician, because the child's left leg was red and swollen and a bruise was visible on the ankle.Hassett told Dr. Rusche that the child had fallen from the reflux board the day before, and that Richardson had noticed the child's left ankle was bigger than the right.Hassett told Dr. Rusche that he had twisted the left leg to investigate and when doing so he heard a small "popping" sound.Hassett stated that after hearing the sound, he and Richardson sought advice from a friend named Norma Netz, and Hassett's mother, between ten and eleven a.m.Both women told Hassett to take J.H. to the hospital.Hassett and Richardson, however, returned home, bathed, and did not take the baby to the hospital until five p.m.

Dr. Rusche ordered x-rays of the leg and the rest of the child's skeleton.The leg x-ray revealed an avulsion fracture of the left tibia just above the ankle, caused by a pulling or twisting action.The doctor testified that this type of injury is very rare in infants twenty-eight days old, and "almost invariably" is caused by child abuse.The doctor testified that there was probably a second avulsion fracture on the end of the tibia nearest to the knee, and that the condition of the fractures indicated they had occurred very recently and at least within the previous seven days.

At trial, Richardson testified that it was impossible for the baby to have fallen from the reflux board because he had been secured with a blanket and surrounded by pillows.Dr. Rusche testified that a fall from the reflux board could not produce the force necessary to break the child's leg.Richardson stated that after Hassett twisted the baby's leg, the swelling got worse and J.H. began crying "really bad."

Dr. Rusche's examination of the skeletal x-rays revealed numerous broken ribs on the right and left side of J.H.'s chest, on the back near the spine.Due to the healing evident in the x-rays, the fractures appeared to have occurred at three different times.Three rib fractures were described as acute, meaning they had happened less than seven days before the x-ray was taken.One rib fracture was described as being seven to twelve days old, and three more were described as more than fourteen days old.

Follow-up skeletal x-rays were performed on January 16, 1990.They showed healing "knobs" on ribs three, four, five, six, seven, eight, nine, and ten on the left side and on rib seven on the right side.They also revealed a healing fracture on the left tibia, and what Dr. Rusche describe as probable fractures of the right and left femurs.At trial, Dr. Rusche testified that rib fractures are difficult to detect on infants without x-rays and 80% are discovered accidentally.He stated that because an infant breathes primarily from the abdomen, broken ribs may not increase the child's outward signs of pain or "fussiness."Dr. Rusche testified that CPR procedures could not have caused the rib fractures because of their different ages and that in a healthy child such as J.H., the chest is very springy.He also stated he had never before had a patient with as many broken bones.

The doctor testified that both times J.H. was admitted into the hospital, including his stay from December 5 until December 11, the child never required a reflux board to aid breathing and that the probable cause of his apneic spell was injury.The doctor opined that J.H. had been abused multiple times, with a total of five distinct episodes of injury.

After seeing the first skeletal x-rays, Dr. Rusche contacted the police department, which began an investigation with the help of the Idaho Department of Health and Welfare.Sufficient evidence was found to charge Hassett and Richardson and bring them to trial.At trial, the evidence established that the people who baby-sat J.H. on several occasions did not notice any obvious injuries or abnormalities.Hassett and Richardson were shown to be the only persons present the two times J.H. required emergency medical attention.Both times J.H. was in Hassett's immediate care.

In an attempt to prove that Hassett had injured J.H., the prosecution presented the testimony of Mr. Dallas Hohnsbehn and Mr. Lonnie Grimm about a previous incident of child abuse involving Hassett.In February, 1982, Hohnsbehn was employed by child protective services in Clarkston, Washington, and Grimm was employed as a Clarkston police officer.

Hohnsbehn testified that in 1982he investigated a complaint of child abuse lodged by Hassett's mother, who lived in Clarkston.The child was Hassett's four-month-old daughter who had been in Hassett's immediate care just before Hassett's mother noticed bruises on the child's buttocks, legs, and neck.

Hohnsbehn testified that when he examined the baby he found bruises caused by a human hand on the lower neck, upper shoulders and upper front of the right thigh.Hohnsbehn reported his findings to Grimm, who began an investigation.

Grimm testified that in 1982 Hassett admitted that he had been awakened at about two a.m. by the baby's cries, that he then tried to feed and burp the baby.According to Grimm, Hassett stated that when the baby would not stop crying, he lost his temper, laid the baby faced down in his lap and spanked her while holding her head and neck in one hand, leaving scratches and bruises.Apparently, old bruises were also evident on the baby's thigh.Hassett told Grimm that he had spanked the baby previously.

On cross-examination, Hassett stated that he had bruised his daughter in 1982, but did not remember the incident clearly.He described Grimm's account as "somewhat accurate."

Hassett's first trial in January, 1991, resulted in a mistrial.The second trial, which began on January 18, 1991, resulted in verdicts of guilty being returned against Hassett for felony injury to a child, and against Richardson for misdemeanor injury to a child.The jury determined that Hassett had been convicted of three prior felonies, thus he...