State v. Magee

837 P.2d 993, 194 Utah Adv. Rep. 66, 1992 Utah App. LEXIS 150, 1992 WL 218856
CourtCourt of Appeals of Utah
DecidedSeptember 4, 1992
DocketNos. 910604-CA, 910582-CA
StatusPublished
Cited by1 cases

This text of 837 P.2d 993 (State v. Magee) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Magee, 837 P.2d 993, 194 Utah Adv. Rep. 66, 1992 Utah App. LEXIS 150, 1992 WL 218856 (Utah Ct. App. 1992).

Opinion

OPINION

JACKSON, Judge:

In a bench trial, Kevin H. Magee and his wife Lezlie Magee were convicted under [994]*994Utah Code Ann. § 76-5-109(3)(b) (1990) of child abuse, a class B misdemeanor. The appellants filed separate appeals that have been consolidated for disposition in this appeal. We affirm both convictions.

FACTS

Kevin H. Magee and Lezlie Magee were the parents of the child in question, Karis-sa Magee, who is deceased. Karissa was delivered by cesarean section August 2, 1990, four weeks premature. Karissa did not suffer any complications and the Ma-gees took her home. They resided in the basement of Mr. Magee’s parents’ home with their other children. Because of the cesarean section, Ms. Magee spent the first few days at home in bed recovering from the operation.

As a result of some serious back problems, Mr. Magee could not work and remained at home. He was the main caretaker of the home and children while Ms. Magee was recovering. Shortly after giving birth to Karissa, Ms. Magee was depressed and confessed difficulty in feeling love for Karissa. Also, both she and Mr. Magee had a tendency to misuse prescription drugs by taking more than the recommended dosage and mixing prescriptions.

While Karissa initially appeared to be a normal healthy child, such was not the case. Medical testimony showed that Kar-issa suffered from a seizure disorder that would cause her to periodically “blank out.” She would turn pale, have a blank stare and be unresponsive. The Magees undertook various means to snap Karissa out of these seizures. Different revival measures used by the Magees included “tapping” Karissa’s face, shaking her or putting her in the shower.

On September 8,1990, Ms. Magee discovered Karissa having a seizure and found her pale and not breathing. Ms. Magee yelled for Mr. Magee who ran into the room and tried, to take Karissa from Ms. Magee in order to perform CPR on her. But Ms. Magee would not give up Karissa. Mr. Magee testified he tore Karissa out of Ms. Magee’s arms and ran to his mother’s car. His mother drove them to the hospital while Mr. Magee attempted CPR on Karis-sa on the way.

At the hospital, the emergency room doctors managed to resuscitate Karissa. However, she remained on life support systems. After a week it became apparent that Karissa had suffered severe neurological damage and it would not be possible to resuscitate her brain. Life support was then removed and Karissa died almost immediately. The medical examiner, Dr. Edward Leis, determined the cause of death to be anoxic encephalopathy, (brain damage caused by a lack of oxygen), likely caused by a seizure disorder.

At the time of Karissa’s admittance to the hospital, the emergency room doctors noticed bruises on her right cheek, and subsequent examinations revealed a fracture of her left femur. As a result, the doctors were suspicious of child abuse and notified the police. A postmortem autopsy was conducted that revealed further injuries, including skull fractures, brain contusions and broken ribs.

Each of the Magees was charged with child abuse in violation of Utah Code Ann. § 76-5-109(2)(a) (1990), a second degree felony, along with lesser included offenses. At the close of the state’s evidence, defense counsel moved to dismiss. The trial court dismissed the second degree felony charge for lack of evidence of the Magees’ intentional or knowing infliction of Karissa’s injuries. However, counsel’s motion to dismiss the lesser included offenses was denied.

At trial, Dr. Edward Leis testified concerning the different dates various injuries occurred. He estimated the skull fractures to be from one to two weeks old, the brain contusions to be approximately nine days old, the femur fracture to be approximately seven days old, the fracture of the number two rib to be more than two weeks old, and the fracture of the number three rib to be about two days old.

Dr. Karen Hansen, a member of the child protection team at Primary Children’s Hospital also testified. She was consulted the day after Karissa’s admission to the hospi[995]*995tal because of concern of physical abuse. She performed a physical examination of Karissa noting bluish-brown bruises on her face, one on the lower left chin and four on the right side of her face, and abrasions about the nose. She also found a bruise on Karissa’s inner right thigh. She noted that children of this age are unable to get around and injure themselves in this manner.

She later discussed with the Magees these injuries and the injuries found in the subsequent medical examinations and autopsy. She was satisfied with the Magees’ explanation regarding the nose area, but not the other injuries, including a corner fracture of the left femur, skull fractures, and fractures of the second and third ribs on the right posterior. She testified that one of the rib fractures had callus formation, indicating that healing had begun and the injury occurred more than ten days before the examination. The other rib fracture had no callus formation, indicating that the fracture was less than ten days old.

Mr. Magee suggested to Dr. Hansen that the thigh bruises and femur fracture might have been caused by his grabbing action. She determined that this explanation was inadequate because the femur injury would require multiple back and forth limb flails. His explanation for the rib fractures was that they occurred during resuscitation. However, she determined this to be inconsistent with the injury due to the high posterior location of the unrelated fractures that indicated a direct blow.

Ms. Magee had told Dr. Hansen that she had slapped Karissa as hard as she could during one of Karissa’s limp spells a few days earlier. Based on her examination and experience, Dr. Hansen opined that Karissa’s injuries fit the diagnosis of the battered child syndrome.

The trial judge found the Magees guilty of inflicting or permitting another to inflict physical injury upon a child. The Magees raise several issues on appeal that challenge the trial judge’s findings.

ISSUES

The first issue the Magees raise is whether the common law defense of necessity entitles them to a dismissal or an acquittal. Assuming arguendo, that the defense of necessity is the law of Utah, we need not reach the issue because it is relevant only to Karissa’s injuries incurred during the episode when she was admitted to the hospital and not to preexisting injuries. Further, this defense was not raised at trial and it is not mentioned in the record. As we stated in State v. Webb, 790 P.2d 65, 77 (Utah App.1990), issues raised on appeal for the first time will not be considered. Accordingly, we decline to address this issue.

The Magees’ main contention is that the trial court failed to find each of them guilty beyond a reasonable doubt. They point to the ambiguities and inconsistencies in the record for support of this contention. They contend that the court failed to determine on a separate and individual basis the elements of their respective charges and thus, each is entitled to a reversal.

STANDARD OF REVIEW

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Related

State v. Terwilliger
1999 UT App 337 (Court of Appeals of Utah, 1999)

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Bluebook (online)
837 P.2d 993, 194 Utah Adv. Rep. 66, 1992 Utah App. LEXIS 150, 1992 WL 218856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-magee-utahctapp-1992.