State v. Smolin

• Decision Date: 11 December 1976
• Docket Number: No. 48313,48313
• Citation: 557 P.2d 1241,221 Kan. 149
• Parties: STATE of Kansas, Appellee, v. Margaret A. SMOLIN, Appellant.
• Court: Kansas Supreme Court

Page 1241

557 P.2d 1241

221 Kan. 149

STATE of Kansas, Appellee, v. Margaret A. SMOLIN, Appellant.

No. 48313.

Supreme Court of Kansas.

Dec. 11, 1976.

Syllabus by the Court

1. One who counsels, aids or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal.

2. Photographs, if relevant and material to matters at issue, are not rendered inadmissible merely because they may be shocking or gruesome.

3. It is not error for the trial court to fail to give a limiting instruction on the purpose of evidence of other crimes when the challenged evidence is admissible independent of K.S.A. 60-455.

4. A statement is admissible when it is voluntary and defendant has been properly advised of her Miranda rights which were intelligently and knowingly waived.

5. A trial judge in passing upon a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion. (Following State v. Gustin, 212 Kan. 475, Syl. 3, 510 P.2d 1290.)

6. In considering the sufficiency of evidence to sustain a conviction, this court looks only to the evidence in favor of the verdict, it does not weigh the evidence; and if the essential elements of the charge are sustained by any competent evidence the conviction stands.

7. In a criminal action wherein the defendant was found guilty of aggravated battery (K.S.A. 21-3414), the record is examined and it is held: (1) The defendant was properly charged as a principal even though she only aided and abetted in the crime; (2) the trial court did not err (a) in admitting photographs, (b) in failing to give a limiting instruction, (c) in admitting defendant's statements to police, and (d) in overruling defendant's motion for acquittal; and (3) the evidence was sufficient to support a conviction.

William D. Mize, Dist. Public Defender, argued the cause and was on the brief for the appellant.

James L. Sweet, County Atty., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for the appellee.

OWSLEY, Justice:

This is an appeal from a jury conviction of aggravated battery (K.S.A. 21-3414). The victim was defendant Margaret Smolin's ten-month-old daughter, Golda.

On the morning of July 26, 1975, defendant brought her daughter to Asbury Hospital in Salina, Kansas. Golda was treated at the hospital by Dr. Frederick Gans, who observed the child had lost contact with its environment and had incurred superficial bruises over the body, burns on the top and bottom of both feet, a burn on the left shoulder and swelling of the right leg above the knee. A spinal tap was performed which indicated injury to the central nervous system. X-rays revealed fractures to the right lower thigh and left wrist. Because he felt the injuries could not have been accidental and he did not expect the child to live, Dr. Gans contacted the police.

When the hospital staff questioned defendant concerning the origin of the injuries, she stated the burn on the back was sunburn. She could not account for the other burns or injuries.

Officer Richard Edgington, of the Salina police, began the investigation of the case. When he arrived at the hospital he observed the child and was advised by a nurse that the baby had a broken arm and leg, and brain damage. She also informed him the attending physician believed the injuries were intentionally inflicted. After being advised of her Miranda rights, defendant told Edgington that she and a Robert Berkowitz had sole control and custody of the injured child. Defendant was then transported to the Salina police station for further questioning.

Defendant made several oral and written statements to police. She told police she and her child had been living with Berkowitz. She often left Golda in his care while she worked or ran errands. Until July 17, 1975, her daughter was normal and healthy. On that date she noticed a burn on Golda's back and shoulder before she went to work. When she questioned Berkowitz about it, he stated it was a sunburn Golda received when he took her to the lake. When defendant came home from work later that day she noticed burns on the baby's feet.

On July 25, defendant left Golda with Berkowitz when she went to work. After she got off work she ran errands and returned home at about 5:00 p. m. She and Berkowitz left the apartment about 6:30 p. m., leaving the baby unattended until they returned home about 12:30 a. m. Because the two had been arguing, Berkowitz went into the apartment first and defendant remained outside. A few minutes later Berkowitz called to defendant and asked her to come upstairs because the child was moaning and in 'shock.' They slapped Golda, sprinkled cold water on her, and pumped her arms and legs to revive her. When these efforts failed, defendant wrapped the baby in a blanket and fell asleep holding Golda in her arms. The next morning she took the child to the hospital.

Defendant told one officer she did not take Golda to the hospital that night because she wanted to wait until morning to see if the child was better. She told another officer she was afraid to go to the hospital because she couldn't explain the injuries.

Although defendant denied any knowledge of the cause of the injuries, she told police the bruises might have been caused by the child's bumping into the side of the crib, the head injuries might have been caused when the child fell off the bed on July 23, and the broken arm and leg might have been inflicted when they tried to revive the child early in the morning of July 26.

Defendant was charged with aggravated battery. Prior to trial defendant filed a motion to suppress her statements. After a full hearing, the trial court denied the motion. The statements were admitted into evidence at trial over defendant's objection.

At trial, Dr. Gans testified extensively concerning the nature and cause of the injuries. He stated the shoulder burn could not have been caused by the sun, but only by the direct application of heat. The burns on the feet were caused by the application of a hot object, probably a cigar, a cigarette lighter or some hot metal object. The broken arm and leg were caused by the use of considerable force and could not have been caused by pulling the limbs back and forth in the manner defendant described to police. The head injury was not accidental. He surmised the fractures and head injuries were less than forty-eight hours old and were inflicted at the same time. The burns occurred sometime earlier.

Defendant took the stand and told essentially the same story she told police. In addition, she stated she did not suspect her child was being abused. She did not know what caused the injuries but thought the child might have been burned by a cigar while crawling on the floor.

Defendant first challenges her conviction because she was charged with aggravated battery but tried as having aides and abetted the principal, presumably Robert Berkowitz. She claims this practice failed to apprise her of the evidence she would be required to meet at trial and was prejudicial.

By statute and case law this jurisdiction had long held that any person who counsels, aids or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal. (K.S.A. 21-3205; State v. Jackson, 218 Kan. 491, 543 P.2d 901; State v. Williams & Reynolds, 217 Kan. 400, 536 P.2d 1395; State v. Ingram, 211 Kan. 587, 506 P.2d 1148; State v. Campbell, 210 Kan. 265, 500 P.2d 21; State v. Ogden, 210 Kan. 510, 502 P.2d 654; State v. Edwards, 209 Kan. 681, 498 P.2d 48; State v. Ridge, 208 Kan. 236, 491 P.2d 900; State v. Sharp, 202 Kan. 644, 451 P.2d 137; State v. Jackson, 201 Kan. 795, 443 P.2d 279, cert. denied, 394 U.S. 908, 89 S.Ct. 1019, 22 L.Ed.2d 219.) Moreover, defendant's argument that she should have been charged in the information with aiding and abetting the aggravated battery rather than with substantive offense has been rejected by this court. (State v. Motor, 220 Kan. 99, 102, 551 P.2d 783; State v. Curtis, 217 Kan. 717, 723, 538 P.2d 1383; State v. Turner, 193 Kan. 189, 392 P.2d 863.)

Defendant further contends there was insufficient evidence for the trial court to instruct the jury on aiding and abetting. Her argument rests primarily on the assumption that the state failed to identify a principal. If this were true defendant's authorities might prevail, but we believe the record amply identifies the principal. Evidence of defendant's actions was sufficient for an instruction on aiding and abetting. In a case similar to the instant case, the Supreme Court of Indiana, in Mobley v. State, 227 Ind. 335, 85 N.E.2d 489 (1949), stated:

'Even if the jury had not believed that violence by the mother caused or helped to cause the child's death, it reasonably could have found that she aided and abetted Fagan in causing it. We have a statute which provides that every person who shall aid or abet in the commission of a felony, or who shall counsel, encourage, hire, command or otherwise procure a felony to be committed, may be charged by indictment or affidavit, and tried and convicted in the same manner as if he were a principal. § 9-102, Burns' 1942 Replacement; White v. State, 1941, 219 Ind. 290, 296, 37 N.E.2d 937. It is true that the mere presence of an accused at the time and place of the crime alleged is not sufficient to make such accused guilty, but if from the facts and circumstances surrounding defendant's presence at the time and from defendant's...