State v. Patenaude
| Decision Date | 26 May 1988 |
| Citation | 145 Wis.2d 898,428 N.W.2d 562 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE OF WISCONSIN, Plaintiff-Respondent, v. KATHY M. PATENAUDE, Defendant-Appellant. 87-1759-CR. |
| Court | Wisconsin Court of Appeals |
Circuit Court, Green County
Affirmed
Appeal from a judgment of the circuit court for Green county: WILLIAM D. JOHNSTON, Judge.
BEFORE DYKMAN, J., EICH, J., AND SUNDBY, J.
Kathy Patenaude appeals from a judgment convicting her of endangering safety by conduct regardless of life in violation of sec. 941.30, Stats. The sole issue is whether the evidence was sufficient to convict, and because we believe it was, we affirm the judgment.
We may not reverse a conviction simply because we believe the jury should not have returned a guilty verdict in the case. State v. Alles, 106 Wis.2d 368, 377, 316 N.W.2d 378, 382 (1982). We may reverse only when the evidence, considered most favorably to the state, is so lacking in probative value that no reasonable jury could be convinced of the defendant's guilt beyond a reasonable doubt. State v. Lossman, 118 Wis.2d 526, 540-41, 348 N.W.2d 159, 166 (1984). If more than one reasonable inference may be drawn from the evidence, we are bound to accept the inference supporting the jury's verdict. Id. at 541, 348 N.W.2d at 167. In addition, all questions relating to the credibility of the witnesses and the weight of the evidence are for the jury, not the appellate court, to resolve. Id., 346 N.W.2d at 166.
The crime of endangering safety by conduct regardless of life has three elements: (1) that the defendant's conduct was imminently dangerous to another person; (2) that the conduct was such as to "evinc[e] a depraved mind regardless of human life"'; and (3) that the defendant's conduct endangered another's safety. Sec. 941.30, Stats. Patenaude's challenge is limited to the second element: She argues only that the evidence was insufficient to establish that her conduct evinced a depraved mind.
The charge against Patenaude was the result of the death of Stephanie Johnson, a six-month-old infant for whom Patenaude was babysitting. Stephanie ceased breathing while in her care, and when Patenaude could not revive the child, she called a neighbor who was trained in CPR and then an ambulance. Stephanie was taken to a hospital where she died a few days later.
Sometime after the incident, Patenaude gave a written statement to the police in which she stated that Stephanie had been "irritable"' on the day in question "'and would not stop fuss[ing] and crying."' She stated that she eventually picked Stephanie up and became "increasingly frustrated"' when she would not stop crying. She said that then, "in anger,"' she put her hand over Stephanie's mouth and became "increasingly frustrated"' when she would not stop crying. She said that then, "in anger,"' she put her hand over Stephanie's mouth until she "'struggled."' When Patenaude removed her hand, Stephanie "gasped for about 30 seconds and was calm."' Patenaude then put Stephanie in a crib. She stated that, sometime later, she returned to check on Stephanie because she "was concerned about [her] action earlier."' When she found that Stephanie was not breathing, she attempted cardiopulmonary resuscitation and, getting no response, telephoned for assistance.
Several months after the incident, Patenaude approached a friend, Connie Arndt, and began discussing her actions on the day in question. Arndt testified that Patenaude told her she had "put her hand over the mouth and nose of Stephanie and that she went limp."' Arndt also stated that Patenaude told her that just before the incident Stephanie "wouldn't stop crying,"' and that Patenaude had been "frustrated"' that day due to a variety of personal problems.
Patenaude testified at the trial. She stated that after Stephanie had been crying for some time, she "put [her] hand over [he child's] mouth in a cupped position, and . . . patted it gently"' but never pressed down firmly. She also testified that she never placed her hand over Stephanie's nose. She stated that Stephanie seemed to be breathing normally when she laid her in the crib.
Patenaude testified that she did not recall telling Arndt that she had held her hand over Stephanie's nose and denied ever doing so. She also denied telling Arndt that Stephanie went limp and testified that this, too, never occurred. Finally, she contradicted several facts contained in her earlier written statement. She testified, for example, that while she was "frustrated"' with Stephanie's crying, she wasn't "angry."' She stated that when she told the police that Stephanie "gasped"' for about thirty seconds, she meant that the child was simply "catching her breath."' She also stated that she did not "pat"' Stephanie's mouth for thirty seconds as indicated in her written statement, but only for seven to ten seconds.
The trial court correctly (and without objection) instructed the jury on the "'depraved mind"' element of the offense:
[D]epravity of mind . . . exists when the conduct endangering the safety of another demonstrates an utter lack of concern for the life and safety of another and for which conduct there is no justification or excuse. It is not necessary that there be an intent to endanger the safety of another, but it is sufficient if the safety of another is endangered by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life.
As the instruction indicates, a defendant may evince a "depraved mind"' without having the intent to harm. State v. Weso, 60 Wis.2d 404, 411-12, 210 N.W.2d 442, 445-46 (1973). " '[T]he only intent necessary for the purposes of establishing the element of 'depraved mind' is the intent to do the act and not the intent to cause any harm."' Wagner v. State, 76 Wis.2d 30, 47, 250 N.W.2d 331, 341 (1977). A "depraved mind"' is, however, one "lack[ing] a moral sense [or] an appreciation of life . . . ."' Weso, 60 Wis.2d at 411, 210 N.W.2d at 446. It is a mind that is unreasonable and lacks judgment. Id.
Patenaude argues that the jury could not have found beyond a reasonable doubt that her conduct evinced a depraved mind because of the testimony of one of the state's medical witnesses, Dr. Susan Kinast-Porter, that simply patting a child on the mouth would represent no more than "poor judgment"' on the adult's part. The testimony, however, came in response to the following question by Patenaude's attorney: "And if . . . someone . . . pats the child simply on the mouth, does not impede its breathing in any way, doesn't cut off the air supply, you wouldn't consider that to be a dangerous activity regardless of that child's life evincing a depraved mind, would you?"' Kinast-Porter's full answer similarly makes it clear that her "poor judgment"' statement was based on a simple "pat[ting of the child's] mouth."' She stated, for example, that "'anything . . . around [a child's] mouth or . . . nose . . . could still be dangerous, depending on how exactly it was done,"' and that to tell "the difference between depraved and poor judgment, you need to know . . . more detail . . ."'
As we have pointed out, there was evidence in this case -- notably the testimony of Connie Arndt describing Patenaude's remarks to her about the incident -- from which the jury could conclude that Patenaude had placed her hand over Stephanie's mouth and nose, thus permitting the inference that she was indeed cutting off the child's air supply. The expert's opinion, therefore, was not based on facts in evidence which were obviously believed by the jury. See, e.g., Wis J I--Criminal 205 (expert opinion based on hypothetical question not to be accorded any weight unless facts stated in question have been proved to jury's satisfaction).
The evidence was in conflict. Patenaude acknowledged in her own testimony that she had become frustrated by her personal problems and by Stephanie's continued crying prior to placing her hand on the child's face. Her voluntary statement to the police sometime after the incident indicated that she placed her hand over Stephanie's mouth "in anger,"' leaving it there until the child began to "struggle"'; that Stephanie then "gasped"' for breath for thirty seconds and she put her in a crib, returning later because of her "concern"' over her earlier actions. She later told a friend that she had placed her hand over Stephanie's mouth and nose on the day in question.
To be sure, Patenaude contradicted several of these points in her own testimony. But our task is not to search for evidence from which the jury could have reached a contrary verdict. The jury is the sole arbiter of the credibility of witnesses and the weight of the evidence. Lossman, 118 Wis.2d at 541, 348 N.W.2d at 166. Considering the evidence in the light most favorable to the conviction, as we are bound to do, we believe that a reasonable jury could have found that Patenaude's act, undertaken in anger and frustration, of placing her hand over the nose and mouth of a six-month-old infant until the child began to struggle and gasp for breath and then leaving the child unattended in a crib for several minutes, demonstrated an "utter lack of concern for the [child's] life and safety,"' and that there was "no justification or excuse"' for such conduct. Wis J I--Criminal 1345. Our own votes, had we been jurors in the case, are immaterial. There being evidence in the record from which a reasonable jury could have found the existence of the challenged element of the offense beyond a reasonable doubt, we must affirm the conviction.
By the Court.--Judgment affirmed.
Publication in the official reports is not recommended.
SUNDBY, J. (dissenting). This case is "[t]ragedy wrought to its uttermost."' An infant of six months is dead. The defendant's three young...
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