State v. Smolinski
| Citation | 401 N.W.2d 182,135 Wis.2d 546 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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. JEFFREY A. SMOLINSKI, Defendant-Appellant. 86-0318-CR. |
| Decision Date | 23 December 1986 |
| Court | Court of Appeals of Wisconsin |
Appeal from a judgment and an order of the circuit court for Winnebago county: William E. Crane, Judge.
Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.
Jeffrey A. Smolinski (Smolinski) appeals from convictions, following a jury trial, of one count of second-degree murder of his girlfriend's daughter contrary to sec. 940.02, Stats., one count of child abuse contrary to sec. 940.201, Stats., and one count of aiding and abetting the intimidation of a witness contrary to secs. 940.43 and 939.05, Stats. He also appeals from the order denying post-conviction motions. The primary issue on appeal is whether there is sufficient evidence to support the conviction of child abuse and second-degree murder. Additional issues on appeal deal with: (1) the trial court's failure to grant a change of venue; (2) alleged duplicitous charges of the offenses of child abuse and intimidation of a witness; (3) alleged multiplicity of the offenses of second-degree murder and child abuse; and (4) the trial court's alleged erroneous evidentiary rulings. Smolinski asks, in the alternative, for a new trial in the interests of justice pursuant to sec. 752.35, Stats. Because we conclude that the evidence is sufficient to support the convictions and that Smolinski is in error as to his other contentions on appeal, we affirm.
Tonya Ginthum (Tonya) was three-and-one-half-years-old at the time of her death on May 11, 1984. The child's mother, Diane Zolkoske (Zolkoske), had been living with Tonya in Smolinski's apartment for approximately two months prior to Tonya's death.
During the three months prior to her death, Tonya experienced several injuries. On March 5, 1984, Zolkoske took Tonya to a hospital emergency room because the child's leg was swollen. Smolinski was at home alone with Tonya at the time of this injury. Dr. Robert E. Taake, the physician on call, diagnosed the injury as a fracture of the tibia. Dr. Taake disbelieved the mother's accounts of Tonya's falling off a couch and twisting her leg, subsequently walking on the fractured leg, and getting it bumped by a grocery cart. Following the March 5th examination, Dr. Taake reported suspicion of child abuse to social services and Tonya's pediatrician because of the inconsistency between the mother's story about the fracture and the type of fracture itself.
On May 8, 1984, during a visit to have Tonya's cast removed, Zolkoske told Dr. Taake about headaches Tonya was having and her vomiting after every meal. During this visit, Dr. Taake observed that when he approached Tonya to examine her, she 'cower[ed].' Furthermore, he testified that Tonya would not answer any of his questions, a nonresponsiveness which he said substantiated his suspicion of child abuse. Because of Tonya's headaches and vomiting, Dr. Taake scheduled a CAT scan for the next day, an appointment which was not kept due to Tonya's death.
On May 9, 1984, the last injury that led to Tonya's hospitalization and death occurred when Smolinski was again alone with Tonya. Smolinski testified that shortly after he, Zolkoske and Tonya got up that morning and Zolkoske went to the store for breakfast items, Tonya fell down four steps leading to a porch while he was in the next room. He further testified that he took her to the bedroom and laid her on the bed, whereupon Zolkoske returned home from the store and found Tonya's breathing erratic and her eyes rolling. An emergency call was placed and Tonya was taken to the hospital.
Dr. John Swanson, on call at the emergency room, examined her at approximately 1:10 p.m. on May 9, 1984 and noticed that her behavior indicated 'increased brain pressure.' Attempts to reduce the swelling were futile; Tonya was pronounced dead on May 11, 1984. 1.. Dr. Swanson stated the cause of death to be 'massive brain swelling and cerebral hemorrhage' resulting from 'a rather substantial force delivered to the side of her head.' Further facts will be discussed as needed.
On appeal, Smolinski contends that the evidence does not establish who abused the child and that the resulting abuse caused her death. Furthermore, Smolinski contends that the evidence fails to show that the nature of the conduct which caused Tonya's death was 'conduct imminently dangerous to another' or that his conduct 'evinc[ed] a depraved mind.' Sec. 940.02(1), Stats. He argues that neither element for a second-degree murder conviction was met because the evidence fails to show the specific act or particular conduct in which he engaged and the existence of the specific state of mind required in a second-degree murder case. The state concedes that at trial it relied entirely upon circumstantial evidence to prove its case as to how Tonya's fatal injuries were inflicted.
To obtain a conviction for child abuse, the state must prove the torturing or subjecting of a child under sixteen years of age to cruel maltreatment. Sec. 940.201, Stats. '[C]ruel maltreatment' is defined to include, but is not limited to, 'severe bruising, lacerations, fractured bones, burns, internal injuries or any injury constituting great bodily harm under sec. 939.22(14).' Id. 'Torture' has been defined as 'to 'punish or coerce by inflicting excruciating pain' and 'to cause intense suffering to,' [or] 'subject [a child] to severe pain.'' State v. Danforth, 129 Wis.2d 187, 200, 385 N.W.2d 125, 130 (1986) (quoting Webster's Third New International Dictionary 2414 (1976)).
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.
For both counts, the state must prove each element of the crimes 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; instead, this court must be satisfied that the jury, acting reasonably, could be so convinced to the required degree of certitude by the evidence which it had a right to believe and accept as true. Id. Thus, '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. See also State v. Fencl, 109 Wis.2d 224, 239, 325 N.W.2d 703, 712 (1982). The test for circumstantial evidence is whether it is strong enough to exclude every reasonable hypothesis of innocence. Koller, 87 Wis.2d at 266, 274 N.W.2d at 658. See also State v. Wyss, 124 Wis.2d 681, 692, 370 N.W.2d 745, 751 (1985). The test for determining when circumstantial evidence satisfies the reasonable doubt burden of proof is:
[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.
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.' 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)).
Last, in reviewing the evidence, we will substitute our judgment for that of the fact finder only when the evidence that the trier of fact has relied upon is 'inherently or patently incredible,' for it is the fact finder who has 'the great advantage of being present at the trial' to assess witness credibility. Day v. State, 92 Wis.2d 392, 400, 284 N.W.2d 666, 670 (1979) (quoting Gauthier v. State, 28 Wis.2d 412, 416, 137 N.W.2d 101, 104 (1965), cert. denied, 383 U.S. 916 (1966)).
Specific intent is not an element of child abuse. State v. Danforth, 125 Wis.2d 293, 295, 371 N.W.2d 411, 413 (Ct. App. 1985), aff'd, 129 Wis.2d 187, 385 N.W.2d 125 (1986). This crime 'requires only the intent to do the act that causes the injury; the resulting injury itself need not be intended.' Id. Furthermore, no direct evidence may be available to attest to such injuries; given the secretive nature of child abuse, the state must often rely upon circumstantial evidence. State v. Hooper, 101 Wis.2d 517, 543, 305 N.W.2d 110, 123 (1981).
Medical testimony revealed that during the two and one-half month period at issue, Tonya experienced all of the following injuries: (1) a fractured right leg; (2) burns on her back and arm; and (3) numerous bruises on her bottom, shoulder blade and face, observed by Dr. Taake and at least three people who saw Tonya casually during this...
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