Unpublished Disposition, 922 F.2d 845 (9th Cir. 1988)

No. 90-10101.

United States Court of Appeals, Ninth Circuit.

Before SKOPIL, BEEZER and FERNANDEZ, Circuit Judges

MEMORANDUM^** 

Delzoria Blair appeals the district court's order affirming her conviction for child abuse under 9 Guam Code Ann. Sec. 31.30(a) (2) (c) (1987). Blair contends that her conviction should be reversed because she received ineffective assistance of counsel at her trial and because the totality of the evidence does not support the jury's verdict. Blair also claims that the government did not prove that the child was alive at the time of the acts alleged to constitute child abuse.

We affirm.

BACKGROUND FACTS

On March 11, 1988, Blair fed her two and one-half month old child, placed him in a rocking cradle, and then left her apartment at approximately 3:00 p.m., leaving the child unattended. During the next twenty-one hours, Blair did not return to check on her child. She returned the following morning and discovered her child dead in his cradle.

The medical examiner determined that the child had died from suffocating against the side of the cradle, and that the cradle was defectively designed. He also determined that the child had died perhaps one hour, at most two, after his last feeding. Both the autopsy report and the medical examiner's grand jury testimony reveal that the medical examiner felt that the child would have died even if Blair had been in the next room.

During Blair's jury trial, her counsel failed to introduce the exculptory evidence contained in the autopsy report or to elicit from the medical examiner his opinion concerning the lack of connection between Blair's conduct and the child's death. Defense counsel called only defendant as a witness. At the conclusion of Blair's trial, she was found guilty of recklessly causing and permitting the physical health of her child to be endangered, under circumstances likely to result in death or serious bodily injury. She was subsequently sentenced to three years in prison.

Blair appealed her conviction to the Appellate Division of the District Court of Guam. A three judge panel affirmed Blair's conviction. Blair then filed a timely notice of appeal.

JURISDICTION AND STANDARDS OF REVIEW

We have jurisdiction pursuant to 48 U.S.C. § 1424-3(c). The district court had jurisdiction under 48 U.S.C. § 1424-3(a) and 8 Guam Code Ann. Sec. 130.15(a) (1985).

We review a challenge to the sufficiency of the evidence by ascertaining whether substantial evidence supports the conviction. We determine "whether a reasonable jury, after viewing the evidence in the light most favorable to the government, could have found the defendant [ ] guilty beyond a reasonable doubt of each essential element of the crime charged." United States v. Douglass, 780 F.2d 1472, 1476 (9th Cir. 1986).

DISCUSSION

1. Ineffective assistance of counsel.

Where the trial court has made no findings of fact as to the quality of trial counsel's representation, the record before the appellate court is usually insufficient to evaluate defendant's claims. Because of the need to develop a factual record as to the reasons for counsel's challenged conduct, ineffective assistance claims should generally be raised collaterally rather than on direct appeal. United States v. Sanclemente-Bejarano, 861 F.2d 206, 211 (9th Cir. 1988); United States v. Birges, 723 F.2d 666, 670 (9th Cir.), cert. denied, 466 U.S. 943, 104 S. Ct. 1926, 80 L. Ed. 2d 472 and 469 U.S. 863, 105 S. Ct. 200, 83 L. Ed. 2d 131 (1984).

In this case, Blair's principal claims are that counsel did not properly investigate her case, did not call material witnesses, did not make proper decisions regarding the evidence, and did not consider certain defenses. All of these issues cry out for a consideration of evidence which does not appear on this record.

A more detailed factual record as to what defense counsel did or did not do and what reasons he had for his actions is necessary to make a determination of Blair's claims of ineffective assistance of counsel. It would therefore be more appropriate for Blair to apply for a writ of habeas corpus. In short, we are unable to determine the issue on this direct appeal.

2. Sufficiency of the evidence.

Blair argues that the government failed to prove that her baby was still alive when she left the apartment. Blair's conviction could not stand if the record lacked "any relevant evidence as to a crucial element of the offense charged." Harris v. United States, 404 U.S. 1232, 1233, 92 S. Ct. 10, 12, 30 L. Ed. 2d 25 (Douglas, Circuit Justice 1971). Blair's argument fails.

There was evidence in the record from which the jury could infer that the child was alive when Blair left the apartment. Blair testified that she told a police officer that the child was crying when she left the apartment. Though she also testified that the baby had not been crying when she left, and that her earlier statement resulted from confusion, the jury was entitled to believe that her statement to the police was the truth.

The medical examiner testified that Blair told him she had fed the baby at approximately 3:00 p.m. He further testified that the baby died within two hours of his last feeding. Blair testified that she left the apartment at about 3:00 p.m. There was sufficient evidence from which the jury could infer that the child was still alive when Blair left the apartment.

Viewing the evidence in the light most favorable to the government, there is no question that a reasonable jury could have found the defendant guilty beyond a reasonable doubt on the evidence before it. Whatever errors trial counsel may have made in allowing that particular mix of evidence before the jury, the jury acted reasonably when it convicted Blair. She admittedly had the care and custody of the baby. She admittedly left the baby alone in a closed apartment for twenty-one hours. There was evidence from which the jury could infer that the baby was alive when Blair left the apartment. There was substantial evidence supporting the verdict.

AFFIRMED.