State v. Norlin
| Decision Date | 22 April 1998 |
| Docket Number | No. 63691-5,63691-5 |
| Citation | 134 Wn.2d 570,951 P.2d 1131 |
| Parties | STATE of Washington, Respondent, v. Whitney NORLIN, Petitioner. |
| Court | Washington Supreme Court |
Washington Appellate Project, Richard Tassano, David L. Donnan, Seattle, for Petitioner.
Norm Maleng, King County Prosecutor, Francis Zavatsky, Cynthia Gannett, Deputy, Seattle, Theresa Fricke, Tacoma, for Respondent.
We granted review of a decision of the Court of Appeals, Division One, affirming Whitney Norlin's conviction on a charge of first degree assault of a child. The dispositive issue before us is whether the trial court abused its discretion in admitting, pursuant to ER 404(b), testimony of an expert that the child victim's prior injuries were caused by an intentional act. We hold that, in child abuse prosecutions, evidence of such prior injuries is admissible under ER 404(b) only if the State connects the defendant to those injuries by a preponderance of the evidence. Here, although the trial court admitted the evidence of the victim's prior injuries without making such a preliminary finding, the record establishes the requisite connection. We conclude, therefore, that the trial court properly admitted the evidence and affirm Norlin's conviction.
On June 1, 1993, Norlin and Diana Carpenter brought their three-month-old child, Nicholas, to Overlake Hospital Medical Center (Overlake) in Bellevue. According to a nurse there, Norlin told the hospital's admitting clerk that the baby "had fallen off the couch and [his] eyes rolled back in his head, and the baby wouldn't wake up." Report of Proceedings (RP) at 187. A physician at Overlake examined Nicholas and determined that the child had sustained a severe head injury. The physician then transferred Nicholas to Harborview Hospital in Seattle. Doctors at Harborview immediately performed lifesaving emergency neurosurgery after concluding that Nicholas was suffering from a subdural hematoma. Later in the day, Norlin told an emergency room physician and a social worker at Overlake that the injury for which Nicholas was hospitalized had been caused by a fall from a couch.
The State charged Norlin in King County Superior Court, pursuant to RCW 9A.36.120(1)(b)(i), 1 with first degree assault of a child. Before trial, Norlin made a motion in limine to exclude evidence of several injuries that Nicholas had sustained prior to the incident in question. Norlin claimed in support of this motion that the evidence of prior injuries was inadmissible unless it was tied to him by a preponderance of the evidence. The trial court denied Norlin's motion, concluding that the evidence was relevant and not unduly prejudicial and was, therefore, admissible pursuant to ER 404(b). In doing so it said This evidence is logically relevant to the State's burden of proving intent, even if there's no explicit defense of accident. Clearly this inference will be raised from the statements that are put into evidence, and this evidence circumstantially goes to the issue of whether the injury was intentional or accidental. The statements I'm referring to are the statements related to Mr. Norlin and what he said to medical personnel at the hospital, as I understand it.
It's relevant, even though it does not purport to prove the identity of the person who might have inflicted those injuries. It shows the injury was the result of an intentional act by someone and not an accident. Therefore, I believe its probative value outweighs its prejudicial effect.
RP at 135 (emphasis added). The trial court also concluded that the evidence was admissible, on an alternative basis, under ER 703 as "part of what [the experts] are relying on in expressing their opinion related to child abuse." RP at 134.
At trial, Dr. Done, a pediatric radiologist, testified that X-rays taken of Nicholas after the child's admission to the hospital on June 1 revealed that Nicholas had suffered a fractured arm, an ankle fracture, and two rib fractures, all within a three-week period prior to his June 1 hospitalization. Done further testified that such a "constellation" of injuries was "difficult to explain in any other way than maltreatment or abuse," and that the ankle and rib fractures would by themselves "be enough to diagnose maltreatment or abuse." RP at 269.
Dr. Feldman, a pediatrician, testified regarding both Nicholas's prior injuries and the subdural hematoma for which Nicholas had been admitted to the hospital on June 1. Feldman said that the injury to Nicholas's head was inconsistent with the type of injuries that a child would sustain in falling from a couch, as well as with the symptoms that Norlin described to the admitting clerk at Overlake as having resulted from the fall. When asked if "any history ... would have explained the other injuries," Feldman responded that "two or three other falls off of the same couch" could not have caused the prior injuries. RP at 606. Feldman went on to say, "This constellation of injuries you would not see except in a child who has sustained child abuse, who has been an inflicted injury victim." RP at 607-08. Finally, Feldman stated, "[T]here's nothing to say that the same person inflicted the head injury and the rib injury except then you have to postulate that two people are beating on the kid." RP at 645.
Nicholas's mother, Diana Carpenter, testified that although she, Nicholas's grandparents, and two baby-sitters had each cared for Nicholas at various times during the period in which he sustained the injuries that preceded the incident that caused the subdural hematoma, a major portion of Nicholas's care during this period of time was provided by Norlin alone. Furthermore, Carpenter indicated that Norlin told her that a bruise on Nicholas's back and a red mark over the child's eye resulted from two "incidents," both of which occurred when Norlin was alone with Nicholas.
Norlin testified on his own behalf and stated that the head injury Nicholas suffered on June 1 resulted from the child falling off of a couch. Norlin indicated that after the child fell, he had "shake[n] [Nicholas] around" in an effort to "wake him up." RP at 832. Norlin also testified that on at least four occasions when Nicholas was in his care prior to June 1, the child had fallen and injured himself. He indicated that these falls occurred variously from a porch, changing table, and the couch purportedly involved in the June 1 incident. Norlin admitted that he had been alone with Nicholas on at least three of these occasions.
A jury found Norlin guilty of first degree assault of a child, and he was sentenced to serve a prison term of 110 months. Norlin appealed to the Court of Appeals, Division One, claiming multiple errors by the trial court. That court affirmed his conviction in an unpublished opinion, and in doing so, endorsed the admission of evidence of Nicholas's prior injuries under ER 404(b) without requiring that it be tied to Norlin. He then petitioned this court, seeking review on numerous grounds. We granted review only of the trial court's decision to admit the evidence of prior injuries to Nicholas.
A decision to admit evidence of other crimes or acts "lies largely within the sound discretion of the trial court" and "will not be reversed on appeal absent a showing of abuse of discretion." State v. Laureano, 101 Wash.2d 745, 764, 682 P.2d 889 (1984), overruled on other grounds by State v. Brown, 113 Wash.2d 520, 782 P.2d 1013, 80 A.L.R.4th 989 (1989). Under Washington's rules of evidence, all relevant evidence not barred by constitutional requirements, statute, the Rules of Evidence, or other court rules is admissible. ER 402. Relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ER 401.
The State contends here that the evidence of Nicholas's arm, ankle, and rib injuries was relevant and properly admitted under ER 404(b) because it tended to show that Nicholas was injured as the result of an intentional act, as opposed to an accident. The State is correct in observing that evidence of other crimes, wrongs, or acts, although not admissible "to prove the character of a person in order to show action in conformity therewith," may be admitted to prove such things as motive, intent, identity, or absence of mistake or accident. ER 404(b). 2 Norlin argues, however, that evidence of Nicholas's prior injuries was admissible under that rule only if the State first connected Norlin to the acts causing those injuries by a preponderance of the evidence.
Norlin's contention is supported by the plain language of ER 404(b). We reach this conclusion because the second sentence of ER 404(b), the portion of the rule that allows the admission of such evidence, uses the term "it." Clearly that term refers to the phrase "[e]vidence of other crimes, wrongs, or acts" referred to in the preceding sentence, which prohibits the use of such evidence "to prove the character of a person in order to show action in conformity therewith." Because logic suggests that the only "crimes, wrongs, or acts" that would have any weight as to a defendant's character are those that were committed by the defendant, it follows that the portion of ER 404(b) allowing the admission of such evidence is similarly limited to "crimes, wrongs, or acts" that are tied to the defendant.
Furthermore, our interpretation of ER 404(b) is supported by numerous cases from this court which make clear that evidence of other wrongful acts by a defendant may be admitted pursuant to ER 404(b) only if the State first establishes a connection between the defendant and those acts. See State v. Lough, 125 Wash.2d 847, 852, 889 P.2d 487 (1995); State v. Lane, 125 Wash.2d 825, 834, 889 P.2d 929 (1995); State v....
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