Opinion
No. 64964-7-I.
October 18, 2010. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Cowlitz County, No. 06-1-00153-0, James E. Warme, J., entered June 17, 2008.
Affirmed by unpublished opinion per Schindler, J., concurred in by Dwyer, C.J., and Appelwick, J.
Following a three week trial, the jury convicted Benjamin Pingle of manslaughter in the first degree of his three-month old daughter Justice and assault of a child in the third degree of her twin sister Liberty. Pingle appeals, claiming the trial court violated his constitutional right to present a defense by limiting the scope of expert witness testimony. Pingle also claims his attorney provided ineffective assistance of counsel by failing to renew a motion to sever the charges and that insufficient evidence supports the verdict. We affirm.
FACTS
Benjamin Pingle and Krystal Pingle are the parents of twin daughters Justice and Liberty Pingle. The twins were born on October 28, 2005, approximately five weeks early. After spending nine days in a neonatal intensive care unit, the twins were discharged from the hospital. In November, the pediatrician Dr. William Burton examined the twins and noted that they appeared to be "progressing very well."
The twins missed their scheduled December appointment, and other than a phone call from Krystal in early December seeking advice related to the babies' nasal congestion, there was no contact between the family and the pediatrician's office between November 18 and January 22.
On December 19, Krystal returned to her job at a nursing home. Her shift was from 7:00 a.m. until 2:00 p.m. Because Pingle was unemployed, after Krystal returned to work, he was the caretaker during the day for the twins. Sometime before Christmas, Krystal noticed a scratch on Liberty's right cheek and a circular mark on Liberty's forehead that looked like a "rug burn."
We use Krystal's first name for ease of reference.
The twins did not go to daycare.
When Krystal came home after work on Friday January 20, 2006, Liberty had a red mark near her eye, another bruise on the left side of her face, and Justice had two bruises on her face. Krystal said that she and Pingle assumed the bruises were caused by the babies lying on their pacifiers. The next day when Krystal returned from work at around 2:30 p.m., Justice seemed to be in pain and was "more fussy than normal." While Krystal was giving Justice a bath, for the first time she noticed a bruise on Justice's lower back.
Pingle's mother testified that both babies had reflux, Justice's was more severe, but also that Liberty "demanded attention" while Justice was "docile" and "really laid back."
On Sunday January 22, Krystal left for work at 6:30 a.m. Pingle said he fed Justice formula at around 8:00 a.m. After giving Justice another bottle of formula at around 11:30, Pingle said Justice had "projectile type" vomiting. When Pingle put Justice in the crib with Liberty, he said Justice appeared "a little bit pale." According to Pingle, he periodically checked on the babies until Krystal came home.
Krystal arrived home from work at approximately 2:00 p.m. and went to check on the twins. Krystal immediately noticed that Justice's "coloring didn't look right" and she was not breathing. Krystal called 911. Minutes later, the paramedics and police arrived.
The paramedics attempted to resuscitate Justice and rushed her to the hospital. The efforts to resuscitate Justice were unsuccessful. The paramedics and hospital staff noted bruises, abrasions, and marks on Justice's face, neck, and back. The emergency physician Dr. Brian Hoyt testified that Justice had "some bruising on the left side of the face" around the left cheek and the left temple, and some bruises on her lower back. Dr. Hoyt described the bruises on the lower back as multiple small round ones that were consistent with fingertip bruises and "a pattern from hands being placed around and the skin is pushed hard on the skin in that area." Dr. Hoyt testified that tests for any respiratory virus were negative.
The twins' pediatrician Dr. Burton examined Liberty at the hospital that same day. Dr. Burton observed a large, round, red mark on her forehead, bruising on the baby's left temple and cheek, and petechial marks indicating broken blood vessels on her ear. The CT scan did not indicate any head injuries.
Dr. Burton also tested Liberty for rotavirus and respiratory syncytial virus (RSV). Liberty had neither.
The police talked to Pingle and Krystal at the hospital and, later in the day, conducted an interview with each of them. Pingle confirmed that he took care of the twins when Krystal was at work. Pingle admitted that he was alone with the babies that day between 6:30 a.m. and 2 p.m. Pingle said that Justice and Liberty had been ill. Pingle said that Justice, in particular, had been "cranky" and coughing on Saturday January 21, but seemed better the next day. Pingle said he noticed a bruise near Justice's eye on Saturday. Pingle believed the bruise was caused by a pacifier. Pingle explained that the red mark on Liberty's forehead was caused by her lying face down and rubbing her head back and forth on "the living room floor." Pingle told the police that the bruise on Liberty's temple was also caused by a pacifier.
Dr. Clifford Nelson, the Deputy State Medical Examiner for the State of Oregon and the forensic pathologist for the Cowlitz County Coroner, performed the autopsy of Justice on January 22. Dr. Nelson observed several contusions and abrasions on Justice's neck and face, near the temple and the eyebrow. He also observed bruising on her lower back and hips. Dr. Nelson's internal examination revealed evidence of bleeding that corresponded to the external bruises. There was deep internal bruising on the left side of Justice's chest, and a deep contusion above her left eye. Dr. Nelson examined all internal organs in the chest and abdomen and found no evidence of disease or abnormality.
When Dr. Nelson opened the baby's skull, a "large amount," approximately 50 ml, of blood flowed out, indicating that there was a "very, very fresh subdural hemorrhage covering the surface of the brain." Dr. Nelson testified that a subdural hemorrhage is caused by rupturing the bridging veins, the vessels that cross the brain. Dr. Nelson also identified optic nerve hemorrhages. Dr. Nelson testified that optic nerve hemorrhages are often found in conjunction with a subdural hemorrhage. Dr. Nelson said there was also evidence of a subarachnoid hemorrhage, or bleeding between the brain and the arachnoid membrane, which generally accompanies subdural bleeding.
The dura is a tough membrane which adheres to the skull. Underneath the dura is subdural space, although usually there is no actual space, and underneath the dura is the arachnoid membrane, a paper-thin membrane which covers the surface of the brain.
When examining the baby's back, Dr. Nelson found additional hemorrhaging in the dura of the lumbar region of the baby's spine. Dr. Nelson determined that the spinal injury was also recent and testified that rupture of the vessels in the dura is caused by severe flexing of the back.
Dr. Nelson concluded that Justice suffered a "traumatic axonal injury", or disruption of the nerves in the brain that was caused by "acceleration/ deceleration" akin to a whiplash motion. In Dr. Nelson's opinion, the injury was caused by gripping the infant around the hips and back and then making a shaking or snapping motion, causing the injury to her back and rupturing the bridging veins in the brain, which resulted in the subdural hemorrhage.
Dr. Nelson said that while the subdural hemorrhage was not the actual cause of death, it is a "marker" that shows injury to the brain. Dr. Nelson explained that nerve fibers known as "axons" run throughout the brain and when the brain moves in an acceleration/deceleration fashion, the axons break or are stretched and damaged. If enough axons are damaged in critical areas of the brain stem, life sustaining function is lost.
Dr. Nelson used a staining procedure to test Justice's brain tissue for damage to the nerve impulses along the axons. Dr. Nelson testified that the staining procedure can only test for damage to the nerve impulses where there is at least a two to three hour interval between the injury and death. Justice's tissue did not test positive. Dr. Nelson testified that the tissue did not test positive because the injury occurred within two to three hours before the time of death. Dr. Nelson said that the negative finding was consistent with his opinion that the subdural hemorrhage was very "recent." Dr. Nelson concluded that the damage to the baby's brain's nervous system resulted in a "traumatic axonal injury".
Because there was no evidence of a neomembrane, Dr. Nelson also concluded that there was no evidence of earlier or older bleeding, or a collection of blood from a chronic subdural hematoma. A neomembrane surrounds a subdural hematoma. Dr. Nelson also testified that an infant suffering from a chronic subdural hematoma would have manifested symptoms that were inconsistent with Pingle's description of Justice's behavior the day she died.
Dr. Nelson asked neuropathologist Dr. Marjorie Grafe at Oregon Health and Science University to examine Justice's brain and tissue from the spinal cord and the spinal dura. Dr. Grafe agreed with Dr. Nelson regarding the existence of subdural and subarachnoid hemorrhage and hemorrhage around the spinal cord. She also noted tears in the dura surrounding the spinal cord and concluded the injuries were caused by trauma inflicted on Justice.
In the autopsy report, Dr. Nelson identified the cause of death as "closed head injuries" and the manner of death as a homicide.
On January 27, 2006, the State charged Pingle with murder in the first degree of Justice and assault of a child in the second degree for the injuries to Liberty.
Pretrial, the trial court required potential expert witnesses to prepare a written report setting forth findings and conclusions. Pingle retained two expert witnesses, forensic pathologist Dr. Janice Ophoven and neurosurgeon Dr. Ronald Uscinski.
The court did not require Dr. Nelson to prepare an additional written report.
In her August 1, 2007 report, Dr. Ophoven noted the bruising on Justice's scalp, back, and hip, but concluded the bruising was not related to cause of death. Dr. Ophoven found evidence of "chronic subdural fluid" but determined there was "no evidence of trauma," and the evidence did not support the conclusion that Justice sustained an "abusive injury." Contrary to Dr. Nelson's findings, Dr. Ophoven also concluded there was a "well-developed neomembrane" on the dura. In addition, Dr. Ophoven noted the existence of "iron positive macrophages within the dura." Dr. Ophoven concluded that the neomembrane indicated that the injury was not recent.
In his September 2007 report, Dr. Uscinski stated that he disagreed with the diagnosis of closed head injury caused by shaking because of the absence of significant injuries to the baby's neck and spinal cord. Dr. Uscinski concluded that Justice "unquestionably had subdural hematoma" most likely related to bleeding at birth.
After reviewing Dr. Ophoven's report, Dr. Nelson reexamined the dura and confirmed his finding that no neomembrane was present. Dr. Nelson then sent slides of the cranial dura to Dr. Grafe who had previously only examined the brain, spinal cord, and spinal dura. Dr. Grafe examined the tissue from the cranial dura and agreed there was no evidence of a neomembrane. During his interview with the defense, Dr. Nelson said he had reexamined the cranial dura and also consulted with Dr. Grafe on the question of whether there was a neomembrane.
When defense counsel interviewed Dr. Grafe she also confirmed that she had seen slides of the dura and saw no evidence of a neomembrane.
At the pretrial hearing in November 2007, the defense made a motion to exclude Dr. Grafe's testimony regarding the neomembrane or, in the alternative, to continue the trial to allow the defense to consult with a neuropathologist in order to respond to Dr. Grafe's findings. The defense argued a neuropathologist was necessary to testify about the existence of a neomembrane on the cranial dura, and the defense should be allowed to retain an expert with the same credentials as the State's expert. The court granted the motion to continue the trial but emphasized that the issue to be addressed by the new expert was discrete.
The court stated "[h]ere's the issue. Here's the slide. Is there a neomembrane? Yes there is. No there isn't. . . . That's the only issue."
In December 2007, the State filed an amended information charging Pingle with second-degree felony murder of Justice or, in the alternative, with manslaughter in the first degree, and assault of a child in the second degree of Liberty or, in the alternative, assault of a child in the third degree.
Pingle retained neuropathologist Dr. Jan Leestma. On February 21, 2008, Dr. Leestma submitted a report setting forth his findings and conclusions. Dr. Leestma stated that his examination of the tissue slides of the cranial dura revealed "obvious neomembranes of chronic subdural hematomas", and concluded that older subdural hemorrhaging contributed to Justice's death.
My interpretation of the findings are that this child died from the effects of a subdural hematoma the bulk of which appears to have been "recent" but also involved an older subdural hemorrhage that could conceivably date back to birth.
In Dr. Leestma's opinion, the preexisting chronic subdural hematoma rebled: "[c]hronic subdural hematomas in infancy can and do rebleed, sometimes catastrophically." Dr. Leestma also concluded that because there was no evidence of major physical impact, there was no "convincing evidence" of "inflicted head injury."
With respect to his examination of tissue samples from the heart, Dr. Leestma also found a "subtle deposit of inflammatory cells." With respect to the lungs, he noticed "congestion and some element of pulmonary edema with iron-positive alveolar macrophages present." Dr. Leestma stated that the presence of "alveolar macrophages in a baby who experienced only 30 minutes of resuscitation suggests a prior on-going element of cardiac failure." Dr. Leestma also states that the reported two to three days of illness prior to Justice's death "strongly implies some element of dehydration" which was "perhaps" caused by increasing intracranial pressure.
Macrophages are white blood cells that function as scavengers that break down and rid tissue of cellular debris.
Prior to the trial on May 6, 2008, the State filed a motion to limit Dr. Leestma's testimony to the issue of the existence of a neomembrane or, in the alternative, to testimony within the expertise of a neuropathologist concerning the brain, the dura, and the spinal cord. The defense argued that Dr. Leestma should be permitted to testify as to all the findings and observations in his report. Pingle's counsel also told the court that the defense was considering calling only Dr. Leestma rather than Dr. Ophoven as its primary expert witness at trial. The State conceded that Dr. Ophoven's proposed testimony encompassed most of the issues addressed in Dr. Leestma's report, and that if Dr. Leestma was going to testify in place of Dr. Ophoven, the State had no objection to testimony related to the findings previously addressed by Dr. Ophoven.
The State also moved to exclude portions of Dr. Uscinski's proposed testimony as beyond the scope of his expertise, and certain conclusions made by Dr. Ophoven which the State argued were unsupported by evidence. The court denied the motion as to Dr. Uscinski's testimony and the defense elected not to call Dr. Ophoven as a witness.
The court expressed concern about the relevancy of Dr. Leestma's new findings regarding the heart and the lungs and questioned whether the findings were too speculative to assist the trier of fact. The court asked defense counsel about the significance of the findings to Dr. Leestma's conclusion that Justice died of a chronic subdural hematoma.
The defense claimed that the heart and lung findings had been "previously addressed" by Dr. Ophoven and were therefore not new. But defense counsel conceded that Dr. Leestma did not believe that heart or respiratory failure was the cause of death and confirmed that it was Dr. Leestma's opinion that there had been a "re-bleed of essentially an older bleed that occurred some time ago", and that re-bleeding can occur with "little or no trauma" and sometimes spontaneously.
While defense counsel asserted that Dr. Leestma's observations about the heart and lungs were relevant because all of the findings were a "part of the whole picture", counsel admitted that the heart and lung findings were "peripheral" to Dr. Leestma's primary conclusions. Defense counsel did not explain how Dr. Leestma's heart and lung findings related to his conclusion that Justice died from rebleeding of a chronic subdural hematoma but simply argued that "[i]f [Dr. Leestma] were to say that that is somehow connected even in a peripheral way," he should be allowed to testify to those findings. The State maintained that the findings related to the heart and lungs would not be helpful to the trier of fact because Dr. Leestma failed to draw any specific conclusions from the findings.
The court allowed Dr. Leestma to testify to all of the findings and conclusions contained in his report except for the findings related to Justice's heart and lungs. The court ruled that Dr. Leestma's findings related to the heart and lungs were speculative and, therefore, not helpful to the trier of fact.
A number of witnesses testified at trial on behalf of the State, including the paramedics, the police, hospital staff, the twins' pediatrician, and a number of expert medical witnesses.
The twins' pediatrician Dr. Burton testified that based on Liberty's developmental stage and abilities, the facial bruising could not have been self-inflicted, inflicted by Justice, or caused by lying on a pacifier. Dr. Burton testified that the ear injury would have been caused by an impact. According to Dr. Burton, the mark on Liberty's forehead was not consistent with a rubbing injury because it was circular, whereas a rub mark would have been linear and either horizontal or vertical depending on the direction of the rubbing.
Dr. Naomi Sugar specializes in child abuse. Dr. Sugar examined Liberty a few days after Justice's death and viewed the photographs taken on January 22. Dr. Sugar testified that it is highly unusual to see bruising on a child of three months, especially one who was born prematurely. Dr. Sugar agreed with Dr. Burton's conclusion that the bruises visible on Liberty's face on January 22 could not have been self-inflicted or inflicted by Justice, but were consistent with being hit or gripped hard. Dr. Sugar testified that the round forehead injury could not have been caused by Liberty rubbing her head against the floor and rejected the possibility that the injuries could have been caused by lying on a pacifier.
The State primarily relied on the testimony of Dr. Nelson and Dr. Grafe as to the cause of Justice's death. Dr. Nelson and Dr. Grafe testified that there was no evidence of a neomembrane and described why Justice did not exhibit symptoms of chronic subdural hematoma. Dr. Nelson told the jury the cause of death was traumatic axonal injury to the brain caused by a shaking and snapping motion.
Consistent with his report, Dr. Leestma testified that Justice died from rebleeding of a chronic subdural hematoma and that the effects of the subdural hematoma were exacerbated by other probable concurrent conditions, such as a viral infection and dehydration. Dr. Leestma also testified that contrary to the findings of Dr. Nelson and Dr. Grafe, he found evidence of a neomembrane, which supported his conclusion of chronic subdural hematoma. According to Dr. Leestma, additional blood in the brain caused increased cranial pressure which, in turn, caused Justice's death. Dr. Leestma explained that rebleeding can occur in the absence of trauma.
Dr. Uscinski also testified that Justice suffered from a chronic subdural hematoma, possibly dating from birth that spontaneously rebled and caused her death. Dr. Uscinski also disagreed with the conclusion reached by Dr. Nelson that the cause of death was traumatic axonal injury. Dr. Uscinski believed the force necessary to cause that type of injury would have also caused neck injuries which were not evident.
Pingle did not testify at trial. Krystal testified that Pingle never exhibited any frustration with the twins, or anything other than "loving care." Several of Pingle's family members testified and said that they had seen Liberty rubbing her head against objects.
The jury found Pingle not guilty of second-degree murder and second-degree assault of a child, but found him guilty of the alternate crimes of manslaughter in the first degree of Justice and assault of a child in the third degree of Liberty. The court sentenced Pingle to a standard range sentence of 114 months.
The court granted Pingle's motion for an appeal bond and set the bond at $250,000. Pingle posted the bond and was released on June 17, 2008. In May 2009, Pingle was reported missing. He was later apprehended in Texas, returned to Washington, and remanded to prison to begin serving his sentence.
ANALYSIS
Expert Testimony
Pingle contends that the trial court violated his constitutional right to present a defense by precluding Dr. Leestma from testifying as to the presence of iron positive alveolar macrophages and inflammatory cells in Justice's heart and lungs.
A defendant has a constitutional right to present testimony of witnesses to establish a defense. State v. Cheatam, 150 Wn.2d 626, 648, 81 P.3d 830 (2003). But a defendant's constitutional right to present evidence is not unfettered. The defendant does not have a right to introduce irrelevant or inadmissible evidence. State v. Ellis, 136 Wn.2d 498, 528, 963 P.2d 843 (1998); State v. Maupin, 128 Wn.2d 918, 924-25, 913 P.2d 808 (1996).
We review the trial court's decision to exclude expert testimony for abuse of discretion. State v. Willis, 151 Wn.2d 255, 262, 87 P.3d 1164 (2004). A trial court abuses its discretion when it bases its decision on untenable or unreasonable grounds. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
Under ER 702, expert witness testimony must be helpful to the trier of fact. Willis, 151 Wn.2d at 262. ER 702 allows qualified experts to testify regarding "scientific, technical, or other specialized knowledge" if the testimony "will assist the trier of fact to understand the evidence or to determine a fact in issue." We also review a trial court's ER 702 ruling for an abuse of discretion. State v. Greene, 139 Wn.2d 64, 70, 984 P.2d 1024 (1999). Even where the relevance and helpfulness of expert witness testimony is debatable, if the decision to exclude is based on tenable grounds, there is no abuse of discretion. Cheatam, 150 Wn.2d at 652.
Pingle asserts the trial court erred in preventing Dr. Leestma from testifying about his findings as to the heart and lungs. Pingle contends the court erred in concluding that the testimony was new and that the testimony was speculative and not helpful to the jury under ER 702.
Below, defense counsel also asserted that because Dr. Leestma's findings regarding the heart and lungs were referred to in Dr. Ophoven's report, those findings were not new. But contrary to the defense assertion below and on appeal, Dr. Ophoven did not make express findings or conclusions as to the heart and lungs. The only reference to macrophages in the report prepared by Dr. Ophoven relates to iron positive macrophages "within the dura." Dr. Ophoven makes no reference to the heart or lungs. Her findings focus on the neomembrane she observed in the dura indicating chronic subdural fluid.
Dr. Leestma's proposed testimony about the heart and lungs was also speculative. Dr. Leestma did not explain how his findings of macrophages in the lungs or inflammatory deposits in the heart related to his conclusion that Justice died from a chronic subdural hematoma.
During the hearing on the State's motion to exclude the testimony as to Dr. Leestma's heart and lung findings, the defense and the State read portions of Dr. Leestma's deposition testimony. When asked about the significance of his observations about the heart in the deposition, Dr. Leestma stated:
Well, that's what I am not sure whether this child might have had a viral infection or some other process going on in the heart. It's just something that struck me as being abnormal and I'm not quite sure what it means.
And with respect to his findings related to the lungs, Dr. Leestma said "[t]his child may have had some element of heart failure with fluid [buildup] in the lungs some days or somewhere before death." When asked whether the finding of macrophages in the lungs could instead indicate that Justice had a cold, Dr. Leestma said "[g]ood question. I don't know."
The State raised the scope of Dr. Leestma's testimony again right before he testified at trial. Dr. Leestma was present and confirmed that in his opinion Justice died from "complications and problems of an evolving and chronic subdural hematoma." Regarding the significance of "iron-positive alveolar macrophages" in the lungs, Dr. Leestma said "it indicates that everything that happened to this child didn't happen on that fateful day." The trial court reiterated that Dr. Leestma could testify to all the issues related to the brain, the dura, the spine, and all conditions stated in his report, but could not testify as to his findings as to the heart and lungs because those findings were new, speculative, and not helpful to the jury. On this record, we conclude that the trial court's decision to exclude Dr. Leestma's proposed testimony about his findings related to the heart and lungs was not an abuse of discretion.
Although Pingle suggests that the court unfairly determined that defense expert testimony must be "limited to rebutting specific claims" made by the prosecution, this is not an accurate description of the court's ruling. The defense initially retained two expert witnesses and was granted a continuance to retain a third. The presentation of expert testimony was limited only to the extent that the court concluded two of Dr. Leestma's findings failed to meet the standard of certainty necessary to assist the trier of fact. See Queen City Farms v. Cent. Nat'l Ins., 126 Wn.2d 50, 103, 882 P.2d 703 (1994) (expert testimony must rise above the level of "theoretical speculation").
Motion to Sever
Pingle contends he was denied effective assistance of counsel because his attorney failed to renew the defense motion to sever the charges related to Justice from the charges related to Liberty. CrR 4.4(a) requires a defendant to make a pretrial motion to sever and if overruled, to renew the motion before the close of the evidence. If the defendant fails to do either severance is waived and cannot be raised on appeal. State v. Henderson, 48 Wn. App. 543, 551, 740 P.2d 329 (1987).
To establish a claim of ineffective assistance of counsel the defendant has the burden to show that (1) counsel's performance fell below a minimum objective standard of reasonableness and (2) but for counsel's errors, there is a reasonable probability that the result of the trial would have been different. State v. West, 139 Wn.2d 37, 42, 983 P.2d 617 (1999) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). The defendant must establish both prongs to prevail on an ineffective assistance of counsel claim. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
To prevail on an ineffective assistance of counsel claim specifically based on counsel's failure to renew a motion to sever, the defendant must show both that the motion should have been granted if made and that, but for the deficient performance, there is a reasonable probability that the outcome of the trial would have been different. State v. Standifer, 48 Wn. App. 121, 125-26, 737 P.2d 1308 (1987).
For a motion to sever charges, the defendant has the "burden of demonstrating that a trial involving both counts would be so manifestly prejudicial as to outweigh the concern for judicial economy." State v. Bythrow, 114 Wn.2d 713, 718, 790 P.2d 154 (1990). Any potential prejudice arising from joinder of charges is mitigated when (1) the State's evidence is strong on each count, (2) the defenses are clear on each count, (3) the trial court instructs the jury to consider each count separately, and (4) the evidence of each count is admissible on the other count, even if not joined for trial. State v. Russell, 125 Wn.2d 24, 62-63, 882 P.2d 747 (1994). Here, Pingle cannot demonstrate that a renewed motion to sever would have been granted. The State's evidence was strong on each count.
The State presented evidence that Justice died from a traumatic brain injury that occurred within a few hours of her death. There is no dispute that Pingle took care of Justice and Liberty from January 20 to 22. The State also presented substantial evidence that on January 22, Liberty had numerous bruises that she would have been incapable of inflicting upon herself. Krystal testified that Liberty was in Pingle's care when the injury that caused the round bruise on the baby's forehead occurred. Krystal also testified that in the days leading up to Justice's death she noticed other bruises on both infants after she came home from work.
Pingle's defense was also clear on each count. With respect to Justice, based on expert opinion, Pingle claimed that she died from a spontaneous "rebleed" of a subdural hematoma and not from a traumatic injury. With respect to Liberty, Pingle argued there were innocent or accidental explanations for the bruising and asserted that the State had no concrete evidence as to how and when the bruising occurred. Pingle's defense as to each count was not inherently inconsistent or antagonistic. Rather, Pingle was consistent in his denial of abuse or rough handling. Additionally, the trial court properly instructed the jury to consider each count separately.
The court instructed the jury: "[a] separate crime is charged in each count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count." See 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 3.01, at 80 (3d ed. 2008).
Finally, in ruling on Pingle's motion to sever, the court noted that the evidence would be cross admissible to show common plan, identity, or absence of mistake. See ER 404(b). Pingle fails to show that the trial court's determination was erroneous. As the State pointed out, the facial bruising on the infants was markedly similar. Arguably, the evidence of injury to Justice would have been admissible to show the injuries to Liberty were not accidental. And even if the evidence was not cross admissible, the lack of cross-admissibility is not categorically fatal to a severance analysis. Bythrow, 114 Wn.2d at 720 ("Even where the evidence of one count would not be admissible in a separate trial of the other count, defendant's proposition that severance is required in every case is erroneous.").
Because Pingle cannot show that the trial court would have granted severance had counsel renewed the motion, his claim of ineffective assistance of counsel claim fails.
Sufficiency of the Evidence
Pingle challenges the sufficiency of the evidence supporting the jury verdict. He contends the evidence supporting manslaughter of Justice was insufficient because there was no physical evidence confirming the diagnosis of traumatic axonal injury, and because during the State's closing argument, the prosecutor admitted, "I can't tell you exactly what he did." Pingle asserts that no evidence supports the assault charge with respect to Liberty, and the only plausible explanation for the jury's verdict on that charge is that it must have concluded that "if Mr. Pingle killed Justice he must have been the one who assaulted Liberty."
To prove manslaughter in the first degree the State had to establish that Pingle recklessly caused Justice's death. RCW 9A.32.060(1)(a). In order to prove assault of a child in the third degree the State had to establish that Pingle negligently caused bodily harm to Liberty. RCW 9A.36.140. A challenge to the sufficiency of the evidence admits the truth of the State's evidence and any reasonable inferences drawn from it. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We review the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Id.
A person acts recklessly "when he knows of and [unreasonably] disregards a substantial risk that [death] may occur." RCW 9A.08.010(1)(c); see State v. Gamble, 154 Wn.2d 457, 467-68, 114 P.3d 646 (2005).
Viewing the evidence in the light most favorable to the State, Dr. Nelson's testimony establishes that Justice's death was caused by a traumatic injury inflicted shortly before her death. Dr. Nelson's conclusion was supported by the autopsy findings of subdural hemorrhage, optic nerve hemorrhages, and spinal damage. Dr. Nelson's conclusion was also supported by the independent review and analysis of Dr. Grafe. Dr. Nelson's opinion was not undermined by the absence of stain testing or by the fact that no one witnessed the injury. The absence of a stain is consistent with a recent fatal injury. There is no dispute Pingle was the only person taking care of Justice on the day she died, and the evidence that Pingle was the person who inflicted the injury was conclusive.
The evidence also supports the jury determination that Pingle negligently injured Liberty. The existence of bruising was established by the testimony of several witnesses and the documentary evidence. The bruising occurred when Pingle was undisputedly the primary caretaker. Krystal denied causing the bruises. Krystal testified that she noticed some of the bruises upon returning home from work on days when Pingle was caring for the twins. Futhermore, expert witness testimony refutes Pingle's explanations for the injuries and establishes that instead, the likely cause was abuse. Sufficient evidence supports the jury's verdict.
We affirm.
WE CONCUR: