State v. Wilson, 87-0761-CR

• Decision Date: 04 May 1988
• Docket Number: No. 87-0761-CR,87-0761-CR
• Citation: 426 N.W.2d 56,145 Wis.2d 143
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. David James WILSON, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 56

426 N.W.2d 56

145 Wis.2d 143

STATE of Wisconsin, Plaintiff-Respondent, v. David James WILSON, Defendant-Appellant.

No. 87-0761-CR.

Court of Appeals of Wisconsin.

Argued Feb. 18, 1988.

Opinion Released May 4, 1988.

Opinion Filed May 4, 1988.

Review Granted

Jed Stone of Law Offices of Jed Stone, Ltd., Waukegan, Ill., for defendant-appellant.

Donald J. Hanaway, Atty. Gen., and Jerome S. Schmidt, Asst. Atty. Gen., on brief, Richard Alan Ginkowski, Dist. Atty. pro tem. (argued), Kenosha, for plaintiff-respondent.

Before BROWN, P.J., and NETTESHEIM and MOSER, JJ.

BROWN, Presiding Judge.

David Wilson appeals a second-degree murder conviction resulting from the death of his stepson, Donald Miller. Because the trial court failed to instruct the jury on the lesser included offense of reckless homicide, we reverse and remand for a new trial.

Initially, we address Wilson's challenge to the sufficiency of the evidence. The basic circumstances surrounding Donald's death can be summarized as follows.

On January 7, 1969, the day preceding his death, Donald Miller remained home from school with Wilson. Other family members left for the day. Wilson, although working on the family car, periodically checked on Donald and was with him throughout the day. Around noon, Wilson fed Donald a lunch of chicken soup with most of the noodles taken out. At approximately 3:30 p.m., Darlene Wilson, Donald's mother, returned to the home and found Donald to be very ill. She then took Donald to see his physician, Dr. Morris Siegel.

Dr. Siegel described Donald as being in a moribund state (near death) and very unresponsive with a poor pulse rate and shortness of breath. Dr. Siegel evaluated Donald's overall condition as life threatening and immediately took him to the hospital. At the hospital, it was determined that Donald was suffering from a ruptured hollow viscus (internal organ) in the abdomen, with fluid and peritonitis present. Abdominal surgery was performed that evening. During surgery, approximately 1200 cubic centimeters of mirky yellow fluid containing food particles drained from Donald's abdomen. Upon lifting Donald's stomach, the surgeons "found a rent [laceration] about three centimeters long in the upper end of the stomach." Dr. Siegel described the laceration as irregular, "because it's a blowout. It isn't like an incision with a knife." Although the laceration was sutured, Donald died the following morning.

Dr. Siegel, Donald's treating physician, and Drs. Robert Huntington and Mary Case, both forensic pathologists, testified as to what must have happened to cause Donald's ruptured stomach. Their testimony indicates that Donald's stomach ruptured due to a blunt force trauma. The force was considered "concentrated" in nature because it only affected a limited area without causing damage to surrounding tissue, such that "the liver and the spleen came off whole." The force necessary to create the injury was categorized as "a good walloping," "very significant" and "a great deal." The degree of force necessary was likened to a significant fall from a second or third story window onto a picket fence.

Because of the lack of injury to surrounding tissue and the lack of other accompanying injuries which would normally result, the doctors agreed that the level of force necessary could not come from an ordinary fall such as that caused by routine child's play or a fall over the arm of a chair. Instead, the doctors testified that the rupture was the result of a blow such as a kick or punch from a foot, a knee, or fist striking with considerable force. Dr. Case stated that the force would compress the abdominal wall backwards, pushing the stomach up against the vertebral column.

Because there was no explanation of how this force was actually applied to Donald such as "a motor vehicle accident, ... being run over by a car, a fall out of a third story window, very serious injuries of which people are always aware," Dr. Case concluded that the injury was inflicted upon Donald and that his death was not accidental.

Dr. Huntington concurred, describing the injury as consistent with a finding of child abuse. He based his determination upon the injury itself and a pattern of past abuse. That pattern of abuse consisted of a variety of incidents: Donald suffered from five broken ribs with no explanation or history to show that they were treated. There were burns on Donald's fingers which were considered inadequately explained. Donald also had a bruise on his back and another on his scalp at the time of his death. When asked to explain a bruise on his face, Donald stated that Wilson had bitten him.

Two of Donald's sisters testified that Donald was afraid of Wilson and that Wilson kicked Donald several times a week. Donald's sisters also reported that Wilson would take Donald into the bathroom at which time the sisters would hear scuffling, the hamper banging against the wall, water running, and Donald crying. Following these bathroom incidents, Wilson would tell Donald to smile and sometimes make Donald drink a glass of water with "steam or vapor or something rising from it." On one occasion, Donald's sister Joan testified that as she was in the bathroom brushing her teeth, Wilson brought Donald in to go to the bathroom. Donald could not go, she stated, so Wilson got mad, took the toilet seat and "slammed it down" on Donald's penis.

Wilson claims there is no evidence to show the nature of the conduct causing Donald's death; thus, there is no evidence to show that he engaged in conduct imminently dangerous to another and evincing a depraved mind regardless of human life. See sec. 940.02, Stats. In short, there is no evidence that he was responsible for what occurred. He concludes that because the state failed to prove the specific act or conduct causing the injury, the jury could not reasonably determine Donald's death to have been the result of some criminal agency rather than a fall or other accident.

This court addressed a similar challenge in State v. Johnson, 135 Wis.2d 453, 400 N.W.2d 502 (Ct.App.1986). In Johnson, we recognized the necessity for extensive reliance on circumstantial evidence in prosecutions involving child victims. Id. at 457, 400 N.W.2d at 504. We concluded that the qualities of conduct necessary for a conviction can be inferred from the act itself "and the circumstances of its commission." Id. at 458, 400 N.W.2d at 504 (emphasis in original). The type, nature, extent, and degree of force required to produce the injuries which resulted from the conduct provide the type of circumstantial evidence upon which a second-degree murder conviction can be based. See State v. Hooper, 101 Wis.2d 517, 542, 305 N.W.2d 110, 123 (1981). The testimony of medical experts as to what could not have happened or what must have happened to produce the injuries is crucial. Johnson, 135 Wis.2d at 458, 400 N.W.2d at 504.

After considering the evidence as a whole, and especially the medical testimony and the evidence of child abuse, the jury could eliminate accident and misadventure as a reasonable hypothesis of innocence. Johnson, 135 Wis.2d at 465, 400 N.W.2d at 507. The expert testimony concerning the level of force needed to cause the injury, coupled with the surrounding circumstances, arguably places such a theory beyond the realm of possibility. Id.

We also reject Wilson's argument that under Seidler v. State, 64 Wis.2d 456, 219 N.W.2d 320 (1974), at most the evidence supports only a conviction for reckless homicide. As to criminal agency short of second-degree murder, we are satisfied that "the jury could have drawn the appropriate inferences from the evidence adduced at trial" concerning the nature of the injury and the pattern of abuse to properly find that Donald's death resulted from conduct evincing a depraved mind. Johnson, 135 Wis.2d at 465, 400 N.W.2d at 507 (emphasis in original).

Regarding Wilson's claim that the evidence failed to establish that he was responsible, we note the extensive testimony concerning a pattern of child abuse. That evidence functioned to establish Wilson's identity as the perpetrator of the crime. See sec. 904.04(2), Stats. In addition, the doctors testified that Donald's stomach would have been distended (enlarged from internal pressure such as a meal) at the time the rupture occurred. An empty stomach, Dr. Siegel testified, would not rupture.

Based on the evidence that Donald had consumed chicken soup at about noon, that food is passed through the stomach within a few hours and that Donald's abdomen was found to contain 1200 cubic centimeters of mirky, yellow fluid during surgery, the doctors concluded that Donald's stomach was ruptured within a few hours of the noon lunch, probably between 12:00 p.m. and 2:00 p.m. Wilson testified that he was with Donald "[b]asically" all day. During that day, Wilson was responsible for the care of Donald. The only reasonable inference that one could draw from this evidence is that the injuries were sustained through some conduct of Wilson's. See State v. Hooper, 101 Wis.2d at 544, 305 N.W.2d at 123.

Wilson next argues that the trial court erred in failing to instruct the jury on the lesser included offense of homicide by reckless conduct, contrary to sec. 940.06, Stats. (1967). However, the statute of limitations had run on this lesser included offense. Therefore, the trial court declined to give the instruction.

In State v. Muenter, 138 Wis.2d 374, 406 N.W.2d 415 (1987), a case decided after the trial of this case, the supreme court held that the running of the statute of limitations does not prohibit the trial court from instructing the jury on a lesser included offense nor preclude the jury from convicting the defendant of that offense. Id. at 384, 387, 406 N.W.2d at 420, 421. Rather, the trial court is only prohibited from entering a judgment of conviction on the time barred offense. Id.

In deciding whether a lesser included...