State v. Stevens

• Decision Date: 31 December 1975
• Docket Number: Cr. N
• Citation: 238 N.W.2d 251
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Ervin Alfred STEVENS, Defendant and Appellant. o. 523.
• Court: North Dakota Supreme Court

Page 251

238 N.W.2d 251

STATE of North Dakota, Plaintiff and Appellee, v. Ervin Alfred STEVENS, Defendant and Appellant.

Cr. No. 523.

Supreme Court of North Dakota.

Dec. 31, 1975.

Syllabus by the Court

1. While evidence of other acts and offenses may be admissible to show motive, intent, identity, scheme or plan, or absence of mistake or accident, such evidence should not be received if its probative value is outweighed by the danger of unfair prejudice to the defendant.

2. Evidence of other acts or offenses is inadmissible to prove motive, intent, scheme, or absence of mistake or accident unless the finder of fact first finds beyond a reasonable doubt that the act charged was committed by the defendant.

3. A stricter showing of relevancy of other acts or offenses is required where such acts or offenses are used to prove identity of the wrongdoer than when used to prove motive, intent, scheme, or absence of mistake or accident.

4. Evidence of other acts or offenses committed upon a victim of a crime must be reasonably connected to the defendant in order to be admissible. Mere residence in the family home of the victim is insufficient connection.

5. Photographs of a victim in a prosecution for homicide, if faithful representations, are, in the discretion of the trial court, admissible, even though they may have the additional effect of tending to excite the emotions of the jury.

6. Exhibits may be subject to production in advance of trial even though the defense has not initiated discovery under Rule 16, N.D.R.Crim.P.

7. A motion for acquittal at the end of the State's case need not be renewed at the end of the entire case in order to preserve the question of the sufficiency of the State's evidence.

Charles J. Gilje, State's Atty., Stutsman County, Jamestown, for plaintiff and appellee State of North Dakota.

Vance K. Hill, Bismarck, for defendant and appellant.

VOGEL, Judge.

The defendant was convicted of the crime of first-degree manslaughter of Jonathan Whities, who was born on April 4, 1972, and died on June 2, 1974. The State contended that the defendant caused the death of Jonathan by beating. The evidence is circumstantial. In the main, it consists of evidence as to the injuries from which the child died, a showing that the injuries could have occurred during an eight-hour period when the defendant had charge of Jonathan and three other children, and that Jonathan had suffered prior injuries during other periods of time when the defendant was present and the mother of the child was not. However, the State also presented evidence of prior injuries which occurred when the defendant was not present. It also presented opinions of physicians that the fatal injuries were 'not accidental,' based in part upon evidence of all the injuries received, including those not attributable to the defendant. The principal question before us is whether the evidence of other injuries should have been received. Other questions include the propriety of receiving in evidence colored pictures of the child's injuries taken both before and after death, whether the defendant was entitled to discovery of certain photographs prior to trial, and whether the defendant preserved for appeal the question of sufficiency of the evidence.

From a lengthy record, we will attempt to abstract the facts in chronological order.

PRELIMINARY FACTS AND PRIOR INJURIES

Jonathan's mother apparently was divorced. At various times, particularly the last It appears to be the prosecution's contention that all the injuries to Jonathan occurred during the times when the defendant was living in the home where Jonathan lived; that some of the injuries occurred when the defendant was present and the mother was not; that others might have been caused by the defendant; and that evidence of all the injuries was admissible for consideration by the jury. We will list the various injuries, whether serious or trivial, in chronological order and then describe the relationship, if any, of the defendant to each of them.

three months of 1973, and from early April 1974 until after Jonathan's death on June 2, 1974, the defendant lived with Jonathan's mother and her other children. During the three-month period in 1973 they resided at Sturgis, South Dakota, and during the 1974 three-month period they resided at Jamestown, North Dakota.

1. On October 7, 1973, Jonathan was treated by Dr. George William Jenter, of Sturgis, South Dakota, for a laceration of the scalp requiring fourteen stitches to close. Dr. Jenter said he was told the child had fallen against an ashtray in a parked car. The mother testified that the injury occurred while the car was in motion, at a time when the mother and all of her children were passengers in a car driven by the defendant, who slammed on the brakes. There is no suggestion in the testimony that the injury was intentional.

2. On November 10, Jonathan was seen by Dr. Claude H. Dulancy, of Sturgis, South Dakota. Jonathan had bruises and injuries to his scrotum. He was hospitalized for five days, during which time the injury was treated with icepacks. His mother testified positively that the injury was due to a fall from a tricycle on a Sunday, at a time when she alone was caring for the children, and that the swelling first was noticed on the following Tuesday, the day Jonathan was taken to Dr. Dulaney. In response to a question from the State's Attorney, she said Jonathan could have received an injury between Sunday and Tuesday, but 'not that I know of.' There was no attempt whatever to link the injury to the defendant. In fact, the mother testified that he was 'driving' when it happened. The defendant was employed at the time as an over-the-road trucker.

3. Dr. Jenter again saw Jonathan on December 10, 1973, in connection with a respiratory ailment. He noticed black-and-blue marks, which were attributed to a fall. Jonathan was found to have a low blood count and was given a prescription for it, but received no other treatment. No witness connected the defendant with this incident.

4. On December 15, 1973, Dr. Jenter saw Jonathan for a second laceration on the head. It required seven sutures to close. Jonathan also had multiple bruises, which the doctor photographed. Dr. Jenter was told that the laceration was caused by a fall against a heating register. The registers in the trailer where the family lived were flat on the floor, but the mother testified that the children often lifted them up and played with them. The fall occurred when the mother had left to make a phone call at her parents' home, and the defendant brought Jonathan to the parents' home immediately after it happened. The defendant was caring for the children at the time.

5. At the same visit, Dr. Jenter noticed black-and-blue marks over about 25 percent of Jonathan's body and took X-rays which showed seven rib fractures. The fractures were unsuspected and the X-rays were taken for the purpose of ascertaining the extent of the respiratory troubles from which Jonathan had been suffering for some time. There is no testimony to show the date of the rib injuries, except that no fractures were shown on the X-rays taken by Dr. Dulaney on November 10. The fractures presumably could have occurred at any time between November 10 and December 15.

6. Edna Barker, the mother of Jonathan's mother, said that Jonathan had fallen down the stairs at her house on an 7. Mrs. Barker testified to another scrotum injury on an unspecified date from an unspecified cause, also not treated by any physician. Although her testimony was unclear, she may have meant to say that the defendant was present when the injury occurred.

unspecified date while the family was living in Sturgis. No treatment was given and no injury was noted.

8. On May 20, 1974, Jonathan received black-and-blue marks while the defendant was babysitting him and the other children. The defendant reported that a motorcycle had fallen on Jonathan. He was seen by Dr. Edwin Hieb, of Jamestown, who found bruises on his hip and back, but no fractures. No treatment was necessary.

9. The next day, while Jonathan's mother was driving and the children were in the car, it was broadsided and damaged. No injuries were noted.

All the foregoing incidents, except Nos. 6 and 9, were put into evidence by the prosecution. A tabulation of the incidents, categorized according to the presence of the defendant and the presence of the mother, follows:

In presence of the defendant and in absence of the mother:

                --------------------------------------------------------------
                     4       Laceration from register  December 15, 1973
                     7       Untreated scrotum injury  1973, no date
                                                       specified
                     8       Motorcycle injury         May 28, 1974
                

In presence of the defendant and the mother:

--------------------------------------------------------------

1 Laceration from ashtray October 7, 1973

In presence of the mother and in absence of the defendant:

--------------------------------------------------------------

2 Tricycle fall November 10, 1973

9 Auto collision May 21, 1974

No indication as to whether either was present:

--------------------------------------------------------------

                     3       Bruises                   December 10, 1973
                     5       Fractured ribs            Between November 10
                                                       and December 15, 1973
                     6       Fall downstairs           1973, no date specified
                

It will be noted that the only injuries which the evidence shows to have occurred in the presence of the defendant and in the absence of the mother are Nos. 4, 7, and 8, and two of them involved only bruises.

EVENTS ON THE TWO DAYS PRECEDING DEATH

On Friday, May 30, the defendant and Jonathan's mother both worked, as they had been doing, from 5 p.m. to 1 a.m., he at the Wonder Bar and she at the Ramada Inn, in Jamestown. He quit his job that night, and went to the Ramada Inn...