State v. Merwin
| Decision Date | 01 July 1998 |
| Docket Number | No. 23467,23467 |
| Citation | 962 P.2d 1026,131 Idaho 642 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Kevin Brent MERWIN, Defendant-Appellant. Boise, February 1998 Term |
| Court | Idaho Supreme Court |
Frederick G. Loats, Coeur d'Alene, for appellant.
Alan G. Lance, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
This case involves an appeal from a conviction and sentence for felony injury to a child.
On July 18, 1995, appellant Kevin Brent Merwin (Merwin) was left to care for his three children from a previous marriage along with the two children of his then girlfriend, now wife, Michelle Buss-Merwin (Buss-Merwin). During the morning, Merwin supervised the children as they played outdoors in a small pool. At 12:28 p.m., Buss-Merwin called home. During the telephone conversation, Merwin said that everything was fine and, in fact, Buss-Merwin reported that she thought she heard one of her children, Alex, a two-year-old boy, talking in the background. The call ended at 12:31 p.m. At 12:44 p.m., Merwin called the Kootenai County 911 emergency number. Merwin reported to the dispatcher that Alex had seemed tired so Merwin had brought him inside. Merwin further stated that while Merwin was changing him from his swim suit into his pajamas, Alex had fallen from the bed and hit his head on the floor. Merwin told the dispatcher that Alex was unconscious and breathing only occasionally. A paramedic was dispatched at 12:46 p.m. While waiting for the paramedic to arrive, Merwin told the dispatcher that Alex was "all limp" and was making a "weird sound." Merwin later reported that Alex had stopped breathing and that Merwin could not detect a heartbeat. The paramedic arrived at 1:08 p.m. The paramedic observed that Alex had no pulse, was not breathing, and was ashen gray in color. The paramedic was able to resuscitate Alex who was then airlifted to Sacred Heart Hospital in Spokane. Merwin also told the paramedic that Alex had fallen from the bed.
Upon arrival in Spokane, Alex was examined by Dr. Lee, a specialist in pediatric intensive care, who ordered a CT (CAT) scan. Dr. Lee also consulted with Dr. Harper, a pediatrician who examined Alex on July 19, and Dr. Carlson, a neurologist, who read the CT scan. All three agreed that the CT scan showed bleeding within the skull. Alex died of his injuries on the 19th. An autopsy was performed on July 20 by Dr. Lindholm, a forensic pathologist. Dr. Lindholm pronounced the cause of death as cranial cerebral trauma.
Merwin was charged with felony injury to a child under I.C. § 18-1501(1) and pled not guilty. Merwin filed a motion to dismiss for lack of evidence and a motion challenging the constitutionality of § 18-1501(1) as applied to him. Both motions were denied. Merwin also filed a motion in limine to prevent the prosecution's experts from testifying as to how the injuries were inflicted. The court ruled that the prosecution's experts could testify about the injuries in general, but could not testify that the injuries had to be inflicted injuries.
At trial, Dr. Lindholm testified that the injuries were consistent with the child's head hitting a blunt, stationary object with considerable force. He further testified that it was unlikely that Alex had been hit with something and that there was no evidence that Alex had been shaken or beaten. In other words, the evidence suggested a single blow to the head. At trial, the four medical experts called by the prosecution testified, in response to hypothetical questions, that they thought it highly unlikely a fall from a bed would have resulted in the types of injuries seen in Alex. In response to defense questioning, Dr. Lindholm testified that the ultimate cause of death was due to swelling of the brain, but that all the injuries needed to be considered together in determining the cause of death. Dr. Lindholm also testified that it would take thirty minutes to four hours for brain swelling (edema) to cause respiratory and cardiac arrest. Dr. Lindholm testified, however, that a shock wave through the brain due to the blow could have also resulted in respiratory and cardiac arrest and that it was impossible to tell whether edema or a shock wave had caused the original respiratory arrest. Another forensic pathologist, Dr. Patterson, who had been retained by Merwin, testified that in his opinion the injuries could have been caused by a fall from a bed.
The jury found Merwin guilty of felony injury to a child. Merwin filed a motion for a judgment of acquittal which was denied. He then filed a motion for reconsideration claiming that the court had applied an unconstitutional standard in assessing the evidence. This motion was also denied. The district court imposed a ten-year sentence with two years fixed, and retained jurisdiction for 180 days. Merwin filed a timely appeal of his conviction and sentence. After the period of retained jurisdiction, the district court, contrary to the recommendation of the Jurisdictional Review Committee, relinquished jurisdiction. Merwin then amended his notice of appeal to include the district court's decision to relinquish jurisdiction.
On appeal, Merwin challenges the district court's denial of his motion for acquittal and his motion in limine. Merwin also argues that the district court erred in allowing the State's expert, Dr. Lee, to testify regarding the possible causes of the head injury and in instructing the jury as to reasonable doubt. Finally, Merwin argues the district court abused its discretion in relinquishing jurisdiction and in sentencing him to ten years with two years fixed.
"On review of the denial of a motion for a judgment of acquittal, the appellate court exercises free review of the record, taking all inferences in favor of the state, to determine whether there is substantial evidence to support the challenged conviction." State v. Matthews, 124 Idaho 806, 813-14, 864 P.2d 644, 651-52 (Ct.App.1993) (citations omitted). "Where there is competent although conflicting evidence to sustain the verdict, this court cannot reweigh that evidence or disturb the verdict." State v. Cotton, 100 Idaho 573, 575, 602 P.2d 71, 73 (1979) (citations omitted). Merwin argues that under this Court's holding in State v. Holder, 100 Idaho 129, 594 P.2d 639 (1979), the district court should have granted his motion for a judgment of acquittal. In Holder, we held that when guilt is proven by circumstantial evidence, the jury must be instructed to accept any reasonable explanation pointing to the defendant's innocence. In this case, Merwin argues that Alex's injuries could have occurred during an earlier, unobserved fall.
We find this Court's holding in State v. Randles, 117 Idaho 344, 787 P.2d 1152 (1990), to be dispositive on this issue. In Randles, we held that the Holder standard does not apply on review.
The function of an appellate court with regards to the facts of a case is to determine whether there was substantial and competent evidence supporting the verdict. To require the court at the appellate level to evaluate whether the evidence suggests any reasonable hypothesis which is consistent with the innocence of a defendant already convicted by a jury would be an impermissible usurpation of the role of the trier of fact. Therefore, we hold that the language of the Holder instruction is to be applied only at the trial level, and is not an appellate standard of review.
Randles at 350, 787 P.2d at 1158.
In reviewing the record we find that the jury's verdict was not without a basis in fact or reason. The State's expert, Dr. Lindholm, testified that it was highly unlikely that a child suffering a head injury as severe as Alex's would not show some signs of the injury, if only crying and complaining of pain. During the telephone call from Buss-Merwin, Merwin reported that everything was fine. At the time of the 911 call, the only indication by Merwin of an earlier injury was Merwin's report that Alex was tired. Later at trial, Merwin testified that Alex had not eaten his lunch and had cried once that morning. Based on this evidence, reasonable minds could conclude that Merwin's hypothesis of an earlier injury causing Alex's death was unreasonable. Since the jury's verdict was supported by substantial and competent evidence, it would have been improper for the trial judge to substitute his view of the facts for the jury's and grant the motion for a judgment of acquittal.
A trial court's decision to admit expert testimony is reviewed for abuse of discretion. Egbert v. Idaho State Ins. Fund, 125 Idaho 678, 873 P.2d 1332 (1994). Merwin argues that the district court should have granted his motion in limine to prevent the State's experts from testifying as to the causes of Alex's injury. The transcript of the pre-trial hearing, however, shows that the motion was limited by Merwin's counsel to whether the experts could testify that it was impossible for the injuries to have been accidental. The district court ruled that the State's experts could not testify that the injuries had to have been intentionally inflicted and so granted the motion as limited by counsel for Merwin.
Merwin also argues that the trial court abused its discretion when it allowed two of the State's witnesses, Drs. Lee and Harper, to testify as experts on head trauma. We find no merit to Merwin's arguments. Dr. Lee was a specialist in pediatric intensive care who had training and experience with children who had suffered severe injuries, including head trauma. Dr. Harper had worked as a pediatrician in the Cook County, Illinois trauma unit. Dr. Harper also had additional training in physical and sexual assault of children. Given the training and background of these witnesses, we do not find that the trial court abused its discretion in allowing them to give...
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