State v. Johnson, 85-1252-CR

• Decision Date: 17 December 1986
• Docket Number: No. 85-1252-CR,85-1252-CR
• Citation: 135 Wis.2d 453,400 N.W.2d 502
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Douglas A. JOHNSON, Defendant-Appellant. *
• Court: Wisconsin Court of Appeals

Page 502

400 N.W.2d 502

135 Wis.2d 453

STATE of Wisconsin, Plaintiff-Respondent, v. Douglas A. JOHNSON, Defendant-Appellant. ^*

No. 85-1252-CR.

Court of Appeals of Wisconsin.

Argued March 20, 1986.

Opinion Released Dec. 17, 1986.

Opinion Filed Dec. 17, 1986.

Glenn L. Cushing, Asst. State Public Defender, for defendant-appellant.

Bronson C. La Follette, Atty. Gen. and Barry M. Levenson (argued), Asst. Atty. Gen., for plaintiff-respondent.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

SCOTT, Chief Judge.

Douglas A. Johnson (Johnson) appeals from his conviction by a jury for second-degree murder contrary to sec. 940.02, Stats. He also appeals from the order denying his post-conviction motion. Johnson raises three issues on appeal: (1) whether there is sufficient evidence to support the conviction of second-degree murder; (2) whether the trial court committed prejudicial error by giving a falsus in uno instruction after informing the parties that such an instruction would not be given; and (3) whether the combined effect of the foregoing alleged errors entitles the defendant to a new trial in the interests of justice. Because we conclude that there is sufficient evidence to support the conviction and that the giving of the falsus in uno instruction was not prejudicial error, we affirm.

In order to be convicted of second-degree murder, the evidence must show that the accused's conduct was: (1) imminently dangerous to another; (2) of such a character that it evinced a depraved mind, regardless of life; and (3) the cause of the victim's death. Sec. 940.02, Stats.

Johnson contends that the evidence fails to show that the nature of the conduct which caused Shannon Eick's death was "conduct imminently dangerous to another" or that his conduct "evinced a depraved mind." He argues that the evidence fails to prove the specific act or particular conduct in which he engaged and the existence of the specific state of mind necessary for a second-degree murder conviction.

The state must prove each element of a crime beyond a reasonable doubt. Turner v. State, 76 Wis.2d 1, 10, 250 N.W.2d 706, 711 (1977). When the defendant challenges the sufficiency of the evidence, our standard of review is whether the evidence adduced, believed and rationally considered by the jury was sufficient to prove the defendant's guilt beyond a reasonable doubt. State v. Koller, 87 Wis.2d 253, 266, 274 N.W.2d 651, 658 (1979). It is not necessary that this court be convinced of the defendant's guilt. Id. Rather, this court need only be satisfied that the jury, acting reasonably, could be so convinced. Id. Thus, as we view it, "if any possibility exists that the jury could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt, we will not overturn a verdict even if we believe a jury should not have found guilt based on the evidence before it." State v. Alles, 106 Wis.2d 368, 377, 316 N.W.2d 378, 382 (1982) (emphasis in original).

A conviction may be based in whole or in part upon circumstantial evidence. Koller, 87 Wis.2d at 266, 274 N.W.2d at 658. The test for circumstantial evidence is whether it is strong enough to exclude every reasonable hypothesis of innocence. Id. The test for determining when circumstantial evidence satisfies the reasonable doubt burden of proof is as follows:

[T]hat all the facts necessary to warrant a conviction on circumstantial evidence must be consistent with each other and with the main fact sought to be proved and the circumstances taken together must be of a conclusive nature leading on the whole to a satisfactory conclusion and producing in effect a reasonable and moral certainty that the accused and no other person committed the offense charged. [Emphasis added.]

State v. Charbarneau, 82 Wis.2d 644, 655-56, 264 N.W.2d 227, 233 (1978) (quoting State ex rel. Hussong v. Froelich, 62 Wis.2d 577, 586, 215 N.W.2d 390, 396 (1974)). This test raises a "question of probability, not possibility." See Stewart v. State, 83 Wis.2d 185, 192, 265 N.W.2d 489, 492 (1978) (emphasis in original) (quoting State v. Shaw, 58 Wis.2d 25, 29, 205 N.W.2d 132, 134 (1973)).

Appellate courts have recognized the necessity for extensive reliance on circumstantial evidence in prosecutions involving child victims. In Schleret v. State, 311 N.W.2d 843, 844-45 (Minn.1981), the Minnesota Supreme Court analyzed the problem as follows:

"Battered child syndrome" can be evidenced by multiple injuries in various stages of healing. Before one injury heals, another injury occurs. Examples of such successive injuries include bruises, burns, and fractures....

....

Much of the evidence that can be gathered to show an instance of "battered child syndrome" is circumstantial. In allowing such evidence to support a conviction, this court has recognized that those felonious assaults are in a unique category. Most cases of felonious assault tend to occur in a single episode to which there are sometimes witnesses. By contrast, cases that involve "battered child syndrome" occur in two or more episodes to which there are seldom any witnesses. In addition, they usually involve harm done by those who have a duty to protect the child. The harm often occurs when the child is in the exclusive control of a parent. Usually the child is too young or too intimidated to testify as to what happened and is easily manipulated on cross-examination. That [a] child ... [does] not survive, strengthens, rather than diminishes, the law's concern for the special problems of prosecuting a defendant in a "battered child" case. As background, direct testimony of earlier episodes of harm done to the child is admissible.

Crucial to identifying such cases are the discrepancies between the parent's version of what happened to the child when the injuries occurred and the testimony of medical experts as to what could not have happened, or must have happened, to produce the injuries. [Emphasis added.]

We read Schleret as being consistent with, and a logical extension of, State v. Hooper, 101 Wis.2d 517, 305 N.W.2d 110 (1981), which holds that in proving criminal conduct in second-degree murder cases, "the qualities of conduct" necessary for a conviction are found "in the act itself and the circumstances of its commission." Hooper, 101 Wis.2d at 542, 305 N.W.2d at 122-23 (emphasis in original) (quoting State v. Olson, 75 Wis.2d 575, 582, 250 N.W.2d 12, 16 (1977)). We now turn to a review of the evidence to determine "if any possibility exists that the jury could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt." Alles, 106 Wis.2d at 377, 316 N.W.2d at 382 (emphasis in original).

Dr. Harold Danforth was the emergency room physician on duty when Shannon was admitted at 10:25 p.m. Dr. Danforth's testimony can be summarized as follows: (1) when he examined Shannon he found her to be pulseless and not breathing; (2) he found no external bleeding but did find bruises that were a few days old on her forehead, chest, both sides of her neck and abdomen, and a fresh abrasion on her knee; (3) he pronounced Shannon dead at 10:30 p.m.; and (4) because of the numerous bruises, he suspected possible child abuse and ordered an autopsy.

Dr. Robert Huntington, a forensic pathologist, performed the autopsy on Shannon. Dr. Huntington's testimony about his external examination of Shannon can be summarized as follows: (1) he found a large number of bruises scattered around the head, neck, trunk, chest and abdomen of Shannon's body; (2) he opined that this child had "way out of the normal amount" of bruises than the typical child would have; and (3) he did not find any evidence indicating that she was an "easy bruiser."

Dr. Huntington's testimony about his internal examination of Shannon can be summarized as follows: (1) he found a bruise on her right arm, ranging from being a few hours to a day or day and a half old; a "very fresh" bruise on her left arm, a few minutes to a day old; a bruise on her abdomen, a few hours to a few days old; an older bruise deep in her scalp, possibly up to three weeks old; a bruise around her belly button, not evident on her skin, but "quite fresh"; and a bruise in the middle of her back, a few hours to a day and a half old; (2) he acknowledged that, while the bruising on her arms could have come from someone shaking the child within the last few hours of her life, as Johnson claimed he did in order to revive her, he believed that the bruises were not a factor in her death; and (3) he observed an outpouring of blood from the peritoneal cavity and a torn mesentery, resulting in a loss of three-fifths of a pint of blood.

Dr. Huntington's testimony regarding the cause of Shannon's death can be summarized as follows: (1) he concluded that it was "a blunt force injury that tore this mesentery and from which she bled to death"; (2) the force had to be "a concentrated force" because the liver and spleen were not damaged as they would be if a person's abdomen had hit a broad surface, as in a car accident; (3) the vector or direction of the force was heading up into the abdomen and towards her back; (4) he estimated that this tear was a "quite recent injury" which would have had to occur within "four hours from the point of death" but that an injury such as this kind could kill "within a few minutes," this being the minimum amount of time from injury to death. He based this opinion on the medical fact that Shannon could not have survived the amount of blood she lost for a very long time; and (5) while stating that he was not sure "whether the child slammed into something or whether something slammed into the child," he did state that the kinds of objects which would have caused the concentrated force could have been "a fist or a foot or some solid object." Dr. Huntington indicated that the solid object also could have been "[o]ne of these big old fashioned round...