STATE v MERGENTHALER
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NO. 93-167 IN THE SUPREME COURT OF THE STATE OF MONTANA 1993 THE STATE OF MONTANA, Plaintiff and Respondent, -vGREGORY JOHN MERGENTHALER, Defendant and Appellant. APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis & Clark, The Honorable Jeffrey M. Sherlock, Judge presiding. COUNSEL OF RECORD: For Appellant: William F. Montana Hooks, Appellate Defender, Helena, For Respondent: Hon. Joseph P. Mazurek, Attorney General, Elizabeth Assistant Attorney General, Helena, Griffing, Montana: Mike McGrath, Lewis and Clark County Attorney, Carolyn Clemens, Deputy County Attorney, Helena, Montana Submitted on Briefs: Decided: Filed: December 22, 1993 January 20, 1994 Justice James C. Nelson delivered the Opinion of the Court. Gregory Mergenthaler (Mergenthaler) appeals from a Judgment and Commitment of the First Judicial District Court, Lewis and Clark County, based on a jury verdict convicting him of negligent homicide. We affirm. The issues on appeal are as follows: 1. Did the District Court err in denying Mergenthaler's motion to dismiss at the conclusion of the State's case? Did the District Court err in allowing autopsy slides and 2. a photograph of the victim, while alive, to be presented to the jury? Mergenthaler began dating Donna Weinzetl (Donna) in November, Donna was the mother of Ashley Weinzetl (Ashley), who was 1991. Mergenthaler was convicted of negligent born on November 29, 1990. homicide in connection with the death of thirteen-month old Ashley on January 23, 1992. A few weeks prior to her death, on the evening of January 12, 1992, Ashley was hospitalized because of the flu, which caused diarrhea and dehydration. She also suffered a febrile seizure, a common seizure which occurs in young children suffering from a At the fever or febrile illness. was placed on an I.V. time she was hospitalized, she and tested for meningitis. Dr. John Reynolds, the admitting doctor, saw no bruises or other injuries on Ashley. well, Dr. Reynolds testified that Ashley responded to treatment and by the morning of January 13, 1992, appeared to be a "nice normal happy baby." Ashley stayed in the hospital until 2 January 15, 1992, in order to allow Dr. Reynolds time to complete testing of her urine, blood, and spinal fluids. discharged, Dr. Reynolds When she was instructed Donna to feed the child Pedialyte, an oral electrolyte solution, and prescribed amoxicillin for an ear infection. On January 18, 1992, Carole Keele, Donna's mother, babysat Ashley while Donna worked. Ms. Keele testified that Ashley ate normally that day. When Ms. Keele bathed Ashley, she noticed that Ashley had a bruise on her foot from where the I.V. had been placed, but testified that there were no other bruises on Ashley. She also testified that Ashley did not appear to be ill that day. The next day, Ashley ate a normal breakfast, then Donna and Ashley attended church. Church members testified at trial that Ashley was not as active that day as she usually was, but that she appeared healthy and had no bruises or marks on her face. After church, Ashley ate lunch, took a nap, and played in the afternoon. Later that afternoon, Mergenthaler called Donna and said he would come and pick Donna and Ashley up to visit at Mergenthaler's house. A short time after arriving there, Donna went to the grocery store to pick up fixings for dinner, and to rent a video. When Donna left Mergenthaler's bed. the house, Ashley was asleep on top of When Donna returned, Mergenthaler was holding Ashley and she was undressed except for a diaper. Mergenthaler told Donna that Ashley had vomited on the sheets and that he put her on the couch to run a bath. When he came out of the bathroom, Ashley was lying on the floor; Mergenthaler told Donna that Ashley 3 fell off bruise the on couch. At this right side of the Mergenthaler so she went to not like what the store and to Mergenthaler's the video. p.m. Donna blankets night a apartment at last also made to pick between appeared herself time, to and be Ashley Donna Mergenthaler Within that in noticed asked about order the to five Ashley, that shining slept At to her for dinner, go she were a to the Ashley Donna stay apartment the the same bed crying and and room. head dressed At were allowed to up iron. breathing not pick up emergency began 9:00 up got Donna around her in woke Ashley's return watched to to sleeping also to curling Donna her they decided Ashley She sleep returned and which and apartment on convinced him. Upon to she breathing. Ashley, minutes, went clothes bruises hold had that swollen. him to do. normally. take Ashley At to the checking on room. During Ashley then p.m., to with dinner Ashley 11:OO Ashley return, work trouble time, Mergenthaler emergency for and Ashley purchased Ashley. apartment, so Donna, and had for trip her her that prepared she Upon having left Ashley, who up 10:00 Donna pajamas another Ashley. Mergenthaler, and, fed Mergenthaler's time get apartment, then for to noticed head. to went She her did back her time, Donna 4:30 a small through the Mergenthaler flashlight night her 20, her on 1992, left Mergenthaler's would not start. 4 Donna into a.m. car January and and She work. discovered night, kept her eyes breathing appeared Donna awoke house at Mergenthaler every and 5:30 hour. normal. got ready a.m. assisted her and in getting the car started, then Donna left for work, leaving Ashley in Mergenthaler's care. Mergenthaler testified that he went back to bed after helping Donna start her car, but awoke around 6:30 a.m. when Ashley began crying. Mergenthaler then changed her diaper and tried to give her a bottle, which she refused. He testified that he did feed her three jars of baby food and that she then "passed out, just fell asleep again." Mergenthaler then watched television and later realized he had not given Ashley the amoxicillin. give her the medicine, When he went to she was barely breathing. Mergenthaler testified that he tried to wake her up by shaking and slapping her and that he tried to pry her mouth open but her jaw was locked. When he was unable to get Ashley to respond, Mergenthaler called his mother, who told him to call Donna. At about 9:00 a.m., Donna received a telephone call from Mergenthaler, telling her that Ashley's jaw was locked and that her body was limp. Donna testified that she told Mergenthaler to call 911, but he denies this statement. room, then Donna called her doctor's office and the emergency called Mergenthaler's apartment. When Mergenthaler answered the telephone, he told Donna the paramedics were there. Donna went to the hospital and, upon her arrival, found that Ashley was in a trauma unit in critical condition. She was in a coma and unresponsive, with severe retinal hemorrhages. A CT scan showed that there were many areas of free bleeding within her head, including subarachnoid bleeding (at the bottom of the brain) and subdural bleeding (between the covering of the brain and the brain 5 itself). The attending physician, Dr. Reynolds, diagnosed her condition as "whiplash shaken infant syndrome." Dr. Reynolds testified that he had never seen a child injured in that manner from revival efforts, and further testified that Ashley's injuries were not consistent with a fall from a couch. Dr. Reynolds also testified that Ashley could not have eaten breakfast the morning of January 20, 1992, let alone have eaten three jars of baby food. He believed the injuries had likely occurred within the previous twenty-four to forty-eight hours. That Falls afternoon, Ashley was flown to the hospital in Great for specialized care. Dr. Ruggerie, a specialist in pediatric critical care, testified that, when Ashley arrived at the Great Falls hospital, his working diagnosis was child abuse. Dr. Ruggerie testified that Ashley's brain was so swollen that it had herniated, pushing the brain out of the skull through the base of the skull. He found her eyes dilated with significant retinal bleeding, with one retina partially detached. Dr. Ruggerie noted significant external head injuries, including swelling on the right side of her face and bruises on both sides of the face and over the ears. Ashley also had small pinpoint bruising around the base of her head. Dr. Ruggerie agreed that the injuries were consistent with those of a baby who had been severely shaken. He also opined that the injuries had occurred within twenty-four hours of presentation. Ashley died on January 23, 1992. Dr. Henneford performed an autopsy, which showed that she had died from swelling of the brain 6 and bleeding within the cranial vault. The autopsy revealed that Ashley had severe bleeding within the brain, hemorrhaging of her retina, and one partially detached retina. Dr. Henneford testified that the hemorrhaging and bleeding were consistent with a "shaken baby episode." He did not believe that the injuries could be the result of a fall from a couch or from revival efforts. Dr. Henneford believed the injuries inflicted on Ashley occurred three to four days before her death on January 23, 1992. All three doctors who testified at trial agreed that Ashley's head injuries could not have occurred through a fall from the couch. They also agreed that the health care providers could not have caused the significant bruising, nor could the bruising have occurred through choking or retching. Dr. Reynolds and Dr. Ruggerie confirmed that the injuries had no relation to the flu symptoms Ashley had earlier in the week, and agreed that none of the injuries were indicative of a febrile seizure. On January 28, 1992, Mergenthaler was charged by information with negligent homicide. The above evidence was presented at a trial held August 31, 1992 through September 3, 1992, and the jury returned a guilty verdict. After a hearing on December 7, 1992, Mergenthaler was sentenced to ten years in prison and was ordered to pay restitution for all of Ashley's medical and funeral expenses as a condition of parole. Mergenthaler From that Judgment and Commitment, appeals. I - MOTION TO DISMISS Mergenthaler contends that the District Court erred in denying 7 his motion to dismiss the information at the conclusion of the State's case. Essentially, he argues that there was insufficient evidence to support the charge that he is the person who inflicted the injuries on Ashley. We disagree. When the issue on appeal is whether there was sufficient evidence to support a jury verdict, whether, the the standard of review is after viewing the evidence in the light most favorable to prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. v. McLain (1991), State 249 Mont. 242, 246, 815 P.2d 147, 150. A directed verdict of acquittal is appropriate only when there is no evidence to support a guilty verdict. State v. Haskins (1992), 255 Mont. 202, 210, 841 P.2d 542, 547. Mergenthaler was charged with negligent homicide, which is defined as negligently causing the death of another human being. Section 45-5-104, MCA (1991). "Negligently" is defined as follows: a person acts negligently with respect to a result or to a circumstance described by a statute defining an offense when he consciously disregards a risk that the result will occur or that the circumstance exists or when he disregards a risk of which he should be aware that the result will occur or that the circumstance exists. The risk must be of such a nature and degree that to disregard it involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. "Gross deviation" means a deviation that is considerably greater than lack of ordinary care. . . . Section 45-2-101(37), Mergenthaler guilty MCA (1991). Thus, in order to find of negligent homicide, the jury had to find that he grossly deviated from the standard of ordinary care in his conduct with Ashley. After reviewing the entire record in this 8 case in the light most favorable to the State, we conclude that the State introduced sufficient evidence to establish all the essential elements of the crime beyond a reasonable doubt. Mergenthaler himself admitted that he shook and slapped Ashley, allegedly in an attempt to get her breathing. strong In addition, evidence was presented to show that Mergenthaler had severely injured Ashley while Donna was gone. All the doctors who testified at trial concluded that Ashley's head injuries could not have occurred through a fall from the couch, as Mergenthaler claimed. In addition, all the doctors agreed that the injuries could not have occurred when Ashley vomited or if she was choking or retching. Rather, the evidence showed that Ashley had been severely shaken and that this shaking caused her brain to swell and ultimately caused her death. It is clear .that circumstantial evidence may be used to prove any element of an offense. 435, 795 P.2d 429, 433. State v. Lynn (1990), 243 Mont. 430, All the evidence presented at trial indicated that Ashley was normal and healthy when she went to Mergenthaler's apartment on January 19, 1992. The evidence indicated that the injuries were acute and occurred on that day. Mergenthaler had custody and control over Ashley during the period of time when the bruises first appeared on her face. The jury could readily infer that an incident occurred where Ashley was injured during the time Donna was apartment. away from Mergenthaler's While Mergenthaler could not be compelled to testify, he chose to do so, but did not offer any rational explanation for 9 Ashley's severe injuries incurred In fact, Merqenthaler's the State's couch 19, However, all the bruises on claimed 1992, then. jars Ashley's couch. In baby food testified that there that amount admitted the which a guilty the Court Mergenthaler the while Our Inc. fallen some way concluded the bruises that the by falling off Ashley that Ashley at by off facial ate three However, - State alive, of the Dr. could the Reynolds have time eaten she was amount of jury. review the autopsy trial We could Therefore, find we hold motion to erred in photograph of PHOTOGRAPH District slides Court and a disagree. relating to court abused of Revenue (1990), fact case. AND the of Merqenthaler's State's SLIDES significant doubt. denied that the a trier reasonable present to of whether v. Dep't a AUTOPSY to provided rational contends standard is 1992. discredited caused claimed properly conclusion II Ashley, been condition State beyond District allowing had care. hospital. upon at her was testified possible given food, the the rulings no that Mergenthaler dismiss was his Ashley have 20, in received who not was trial that likely January conclude evidence that on at Merqenthaler of to We could addition, of and doctors face she testimony He January the on evidence. while discretionary its trial discretion. 245 Mont. 470, 475, 803 court Steer, P.2d 601, 603-04. At autopsy trial, on Dr. Henneford, Ashley, referred to the slides 10 physician taken who during performed the autopsy the when he was well explaining the established admitting nature that the photographs. explaining and the 221 Mont. determine the in 515, should danger excluded. had testimony, photographs into photographs depicted committed, the that evidence a As during the were would of arouse the must be excluded.t' Gollehon, Dr. Henneford's not the We (1986), whether must outweighed (Mont. 1993), stated jurors' should point that 50 we passions that slides for during that, "We Rep. here were demonstrative into the to evidence; the been medical take although the the of the crimes did not believe more than any will important St. that have allowed conduct. photographs contended viciousness Gollehon, 11 not held and slides court court autopsy and was We autopsy the twenty exhibited jury the the Gollehon defendant only testimony introduce the substantially v. value the trial, 120, 1567. The defendant's to is introduced admissible. at State brutality sanitized did value deliberations. be in evidence 1564, the trial evidence State they photographs other as in purpose considering were and assisting When probative photographs the 1256. examiner. little for 1248, Rep. medical Mont. v. Johnson 50 State for 202 State -.I the admissible It is discretion case. probative St. wide (1983), and jury. the the prejudice. The examiner's admitted are evidence unfair the photographs P.2d their Gollehon, by the to have Warnick of _ P.2d me....-, taken 719 be whether In v. understanding 503, photographs by applying injuries courts Photographs and jury the trial State 127, 656 P.2d 190, 194. of of not and at demand probative 1567. only exhibited purposes. The therefore, the jury was not allowed to take the slides into deliberations. In addition, the District Court only allowed a few to be shown during Dr. Henneford's testimony. Dr. Henneford testified that the slides were helpful in describing the procedures he used, and referred to the slides to describe the nature and extent of Ashley's injuries and to show that her injuries could not have occurred through choking, gagging, or as the result of a fall or febrile seizure. We hold that the autopsy slides provided important and probative evidence in explaining to the jury how and why Ashley died, and thus were properly used for demonstrative purposes. The State also introduced a photograph of Ashley when she was alive. Mergenthaler contends that this was prejudicial error. Again, after reviewing the transcript of trial proceedings, we find that the District Court carefully reviewed various in-life photographs in chambers and rejected a number of photographs, including one of Ashley sitting on Donna's lap. The District Court allowed one photograph of Ashley, wearing a snowsuit, sitting on the back of a pickup truck, taken a few weeks before her death, to be introduced to the jury to show who the victim was and what she looked like. The child's size, age, condition, vulnerability, and health were central issues in this case. photographs are admissible We have previously held that if they are relevant to describe a person, place, or thing involved in the case. (1992), 251 Mont. 358, 371, 825 P.2d 1196, 1205. In this case, State v. Mayes the State maintains that the photograph was 12 relevant to show the jury how Ashley looked and what her health was a few weeks prior to the homicide. healthy, The photograph shows a happy, thirteen-month old child, taken a few weeks prior to her death. There was nothing in particular about this photograph that would inflame the passions or emotions of Mergenthaler cannot show any prejudice. 1205. the See Maves, jury, and 825 P.2d at We hold that the District Court did not abuse its discretion in allowing the State to introduce the photograph of Ashley. Affirmed. We Concur: 13 January 20, 1994 CERTIFICATE OF SERVICE I hereby certify that the following order was sent by United States mail, prepaid, to the following named: WILLIAM F. HOOKS Appellate Defender P.O. Box 200145, Captitol Station Helena, MT 59620-0145 HON. JOSEPH P. MAZUREK, ATTORNEY GENERAL Elizabeth Griffmg, Assistant 215 N. Sanders, Justice Building Helena, MT 59620 HON. JEFFREY M. SHERLOCK District Judge 228 Broadway, Dept 3 Helena, MT 59623 MIKE MC GRATH, COUNTY ATTORNEY 228 Broadway Helena, MT 59623 ED SMITH CLERK OF THE SUPREME COURT STATE OF MONTANA
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