United States v. Merriweather

22 M.J. 657, 1986 CMR LEXIS 2487

• Court: U.S. Army Court of Military Review
• Decided: May 29, 1986
• Docket: CM 446091
• Status: Published

Opinions

OPINION OF THE COURT

FELDER, Judge:

Appellant was tried by a general court-martial composed of officer members. Contrary to her plea, she was convicted, as charged, of intentionally inflicting grievous bodily harm upon her infant son. She was sentenced to a bad-conduct discharge, confinement at hard labor for 12 months, and reduction to the grade of Private E-l.

On 30 October 1983, appellant brought her two year and ten month old son to the emergency department of Madigan Army Medical Center. The child was unconscious and unresponsive to painful stimuli. He was in a poor state of physical hygiene. Some of his teeth were missing, and his body temperature was abnormally cold at 91 degrees Fahrenheit (normal body temperature is 98.6). Appellant was tearful and upset. The resident physician on duty observed fresh blood in both ear canals and a left hematoma (bloody swelling) under the scalp. Further examination revealed numerous old and recent bruises all over the child’s body, as well as some well healed third degree burns on his buttocks, ankles and feet (but not the soles of the feet). There were also pink welt marks on the child’s back. X-rays revealed a large skull fracture. A CAT (computer-assisted tomography) scan showed a week-old subdural hemorrhage. (The dura is a thick membrane between the brain and the skull; a subdural hemorrhage is bleeding between the brain and the dura.) A more recent hemorrhage was located between the dura and the skull.

Appellant was the victim’s sole parent. For the first sixteen months of his life, the child lived with his grandparents. However, since June of 1982 he was in appellant’s sole custody. Appellant had shared her quarters with a boyfriend for a few months, but he was transferred overseas in March of 1983.

Several female acquaintances of appellant who either babysat for her or were frequent guests testified at trial. One of these witnesses, Mrs. J, resided in appellant’s quarters from November 1982 until February 1983. During that time, she observed scars on the child’s body and bums on the child’s buttocks. On one occasion, the child'became very upset when Mrs. J tried to put him in the bathtub. When Mrs. J asked how the child had been burned, appellant replied he had accidently knocked a pot of boiling water off the stove while playing in the kitchen with a broom. On another occasion, Mrs. J heard a loud slap and something hitting the hardwood floor. Entering the room, she saw the child lying flat on his face and heard appellant telling him to get up. When he pulled himself up, his face was bloody. Five minutes later, the front of his shirt was covered with blood. When asked what had happened, appellant explained that the child had fallen off the bed and hit his mouth. She indicated she would take him to the hospital after morning formation, but after her return, she refused to do so. Eventually Mrs. J moved out because, at least in her opinion, she had been asking too many questions about “some small incidents that had been happening”.

Another witness, Mrs. W, an employee at the Fort Lewis Child Care Center, testified that the victim attended the center on a regular basis from November 1982 until July 1983. The child subsequently stayed at home with appellant while she was on quarters expecting another child. Mrs. W observed burns and bruises on the child’s body every time she changed his diapers. She reported these injuries to her director. Although she did not believe the child to be accident prone, Mrs. W stated under cross-examination that the child did have accidents and injuries at the Child Care Center, and that she had completed at least one written accident report on the child.

According to the forensic pathologist who testified at trial, the head fracture required a great deal of force, equivalent to what would be expected if the child fell out of a second or third story window, or if someone picked him up by the feet and swung him into a wall. The pathologist also described numerous bruises he observed on the child’s back. These bruises had a linear appearance, which he said suggested that a looped object such as a belt or an electrical cord was used to inflict them. There were also scars on the child’s extremities and buttocks, incurred a year earlier. According to the pathologist, the scar patterns indicate that the child was forcibly held down in a tub of hot water. The burn injuries were intentional, not accidental, and were not the kind incurred by a child splashed by a falling pot of boiling water. During cross-examination by trial defense counsel, the pathologist agreed that the head fractures were not necessarily caused by the child being hit by another person. There could be many causes of this type of skull fracture, the pathologist continued, including involvement in a car accident.

Appellant contends on appeal that the military judge abused his discretion by permitting testimony concerning prior injuries suffered by her child. She argues that the evidence at trial did not establish that she was the one who inflicted these injuries and, alternatively, that the probative value of this evidence was substantially outweighed by its inherent prejudice.

If appellant is correct that there was no evidence indicating that she inflicted the prior injuries, the testimony concerning them would be irrelevant and prejudicial. See United States v. Brown, 608 F.2d 551, 555 (5th Cir.1979) (“extrinsic evidence may only be introduced if ‘an offense was in fact committed and the defendant in fact committed it.’ United States v. Beechum, [582 F.2d 898, 912 (5th Cir.1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979)]”). Nevertheless, the lack of direct evidence does not constitute a failure of proof. There was ample circumstantial evidence adduced at trial to permit the members to infer that it was appellant who committed the assaults on her child. See United States v. Harris, 661 F.2d 138 (10th Cir.1981).

In this case, the government established that appellant had sole custody of the child during the time the various injuries were inflicted and thus had the opportunity to inflict the injuries. There was no suggestion that the child ever received any serious injury while in the care of a babysitter or day care center, nor was any evidence presented which indicated that her live-in boyfriend had harmed the child. By process of elimination, the evidence established conclusively that appellant was the source of the prior injuries. See United States v. White, 19 M.J. 995, 996 (ACMR), pet. granted, 21 M.J. 146 (C.M.A.1985).

Appellant’s contention that the uncharged misconduct evidence should not have been admitted is equally without merit. As she now concedes, appellant made no objection at trial to the introduction of this evidence. When an accused does not object to testimony which includes reference to her collateral misconduct, she is entitled to no relief on appeal unless admission of the evidence was plain error. Military Rule of Evidence 103; United States v. Licavoli, 604 F.2d 613, 623 (9th Cir.1979), cert. denied, 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787 (1980). Before addressing whether the admission of this evidence was plain error, however, I shall discuss certain issues raised by the government’s introduction of appellant’s prior acts of misconduct. The government argues that this evidence is admissible under Military Rule of Evidence 404(b). This rule, which is based on the corresponding Federal Rule of Evidence, provides:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

When evidence of uncharged misconduct is offered under Military Rule of Evidence 404(b) to prove something other than the accused’s propensity to commit crimes, it is analyzed through what is essentially a two-step process. First, the court must determine whether the evidence is relevant to an issue other than the accused’s character. Second, the evidence must possess enough probative value that is not substantially outweighed by its undue prejudice. The first step applies the standard set forth in Military Rule of Evidence 401, which deems evidence relevant when it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The second step requires that the probity of the uncharged offense be balanced against its potential for unfair prejudice. Beechum, supra, 582 F.2d at 911.

It could be argued that trial counsel was permitted to introduce evidence of the earlier injuries to show absence of accident. In this case, trial defense counsel cross-examined both expert medical witnesses on causation. He succeeded in having one state that she could not say that the victim’s head injuries had been intentionally inflicted and that the injuries could have been caused by accident. Trial defense counsel’s cross-examination of the other medical witness resulted in that expert’s admission that the child’s injuries could have been caused by accident and were not necessarily inflicted by another person. I consider the elicitation of these answers to have raised the defense of accident, at least insofar as an accidential cause of the injuries, whether or not it involved appellant, would have absolved her of guilt. Conversely, the sheer number of injuries suffered by the victim over a relatively short period of time would have led common persons to conclude that the charged injury was less likely to have been accidential, thus rebutting the inference of possible accident which arose from the testimony elicited by trial defense counsel during cross-examination. See State v. Silva, 153 Me. 89, 134 A.2d 628, 632 (1957); E. Imwinkelried, Uncharged Misconduct Evidence § 4:03 (1984). The problem with this approach, however, is the substantial risk of prejudice raised by the introduction of this evidence. As stated previously, it was clear beyond cavil that appellant was the one who inflicted the previous injuries. Thus, while establishing the absence of accident in this case, the government was concomitantly allowed to present evidence that appellant inflicted the prior injuries and was therefore the sort of person who would have committed the charged offense.

In this case, however, I do not find an abuse of discretion by the military judge in admitting the evidence for the simple reason that there was no specific defense objection which invoked that discretion. Thus, it must be determined whether the admission of this evidence amounted to plain error. It did not.

Reversal for plain error will not be made unless it appears necessary to avoid a miscarriage of justice, to preserve the integrity or reputation of the judicial process, or to correct the denial of a fundamental right of the accused. United States v. McGary, 12 M.J. 760, 762 (A.C.M.R.1981); United States v. Beaudion, 11 M.J. 838, 840 (A.C.M.R.), pet. denied, 12 M.J. 181 (C.M.A.1981). It should be first noted that neither the presentation of this evidence nor the trial counsel’s argument thereon appear to have been deliberate attempts to inflame the passions of the members. In addition, appellant was tried by a panel of officers, presumably individuals who were best qualified for court-martial duty because of their age, education, training, experience, length of service, and judicial temperament. See Article 25(d)(2), Uniform Code of Military Justice, 10 U.S.C. § 825(d)(2). Because of the presence of these factors, I cannot conclude that the presence of uncharged misconduct evidence here caused the factfinding process to break down or that the members were led to decide this case based upon passion, not reason.¹

Finally, as observed previously, this evidence had some probative value with respect to the absence of accident, a permissible use under Rule 404(b).² Thus, even if the admission of this evidence was error, it did not cause a miscarriage of justice, impugn the integrity or reputation of the judicial process, or otherwise deprive appellant of a fundamental right. Therefore, the failure of the trial judge sua sponte to exclude the testimony did not rise to the level of plain error. Licavoli, supra, 604 F.2d at 623; Military Rule of Evidence 103(d).

Appellant’s remaining assignments of error are without merit.

The findings of guilty and the sentence are affirmed.

1 . My conviction in this regard might be even stronger had there been a limiting instruction regarding the proper use of uncharged misconduct evidence. My examination of the record indicates, however, that trial defense counsel, upon inquiry by the military judge, affirmatively waived instruction on the uncharged misconduct evidence. No error attaches to such a waiver. United States v. Wray, 9 M.J. 361 (C.M.A.1980).

2 . There are numerous cases involving allegations of child abuse where courts have admitted evidence of uncharged misconduct as being probative on the issue of absence of accident. See e.g., United States v. Harris, supra, 661 F.2d at 142 (murder case involving severe cranial and abdominal injuries to accused’s eight-month old son; court permitted evidence of numerous fractures sustained by victim months before the fatal injuries and states “the admissibility of evidence of other crimes, wrongs, or acts to establish ... absence or mistake or accident is well-established, especially in child abuse cases."); Ashford v. State, 603 P.2d 1162 (Okla.Crim.App.1979) (in case involving longstanding child abuse, evidence of the past injuries held admissible "to counter any claim that the latest injury happened through accident or simple negligence”); Bludsworth v. State, 98 Nev. 289, 646 P.2d 558 (1982) (admissibility of prior injuries “as independent, relevant, circumstantial evidence tending to show that the child was intentionally rather than accidently, injured on the day in question”); but see Harvey v. State, 604 P.2d 586 (Alaska 1979) (court flatly rejects notion that pattern of abuse is relevant for purposes other than propensity). Thus, while recognizing the fact-sensitive nature of these cases, I also note the relevance of evidence of prior injuries in cases involving insinuations of accidental causation. This well-established use of uncharged misconduct evidence makes me even more reluctant to reach out and hold that its use here amounted to plain error, especially in light of its admitted probative value.